Woolsey v. Lassen
| Decision Date | 16 May 1962 |
| Docket Number | No. 6705,6705 |
| Parties | James A. WOOLSEY, Appellant, v. Obed M. LASSEN, State Land Commissioner, and Pima Mining Company, a corporation, Appellees. |
| Court | Arizona Supreme Court |
Lesley B. Allen, Lakeside, and W. Edward Morgan, Tucson, for appellant.
Wade Church, Former Atty. Gen., Robert Pickrell, Present Atty. Gen., for appellee Obed M. Lassen, State Land Com'r.
Victor H. Verity, Tucson, Ariz., Musick, Peeler & Garrett, Los Angeles, Cal., Darrow, D'Antonio, Hayes & Morales, Tucson, for appellee Pima Mining Co.
This case is an appeal by the plaintiff Woolsey from the decision of the Superior Court finding against him on his appeal from the decision of the State Land Commissioner denying an application for a mineral lease. The defendant, Pima Mining Company, intervened as the real party in interest. The parties will hereafter be identified as in the proceeding in the Superior Court.
The defendant, Pima Mining Company, is the assignee of a mining lease of three mining claims on state mineral lands. Both the original application for lease and lease were designated as 'Placer' by typewritten entry on the printed forms. The lease, dated November 29, 1950, provided, among other things, that 'This lease confers on the lessee the right: (1) To extract and ship minerals, mineral compounds and mineral aggregates, herein called 'minerals' or 'ore', from the property set forth, located within planes drawn down vertically through the exterior boundary line of each claim.'
On January 6, 1957, plaintiff went upon the three claims in question and filed location notices, and on January 8, 1957, filed a lease application with the defendant, State Land Department, designating the claims as 'Type B' mineral claims as designated in § 27-232(B), A.R.S. At that time the defendant, Pima Mining Company, was in possession conducting an extensive pit copper mining and milling operation.
On February 15, 1957, the lease application was denied without hearing on the ground that there was an existing mineral lease held by the Pima Mining Company. Plaintiff appealed to the Superior Court of Pima County and a trial de novo was had, with judgment for defendants. In brief, the Superior Court held that the lease of Pima Mining Company carried rights to all minerals on the claims; that dual leasing is not permitted by Arizona law; that Pima Mining Company was in possession under a valid lease; and that the plaintiff could gain no rights by trespass.
The position of the plaintiff was that the state leasing laws and administrative practices provided for multiple leasing of both lode claims and placer claims to cover identical mineral lands of the state, both located by reference to the Public Survey in accordance with § 27-232(B), A.R.S., and that the lease was invalid because of failure to discover valuable mineral prior to location.
Plaintiff offered proof that the State Land Department had previously issued instruction sheets to the public to the effect that multiple leasing of mineral was permitted in Arizona, that the State Department of Mineral Resources had issued a booklet with information to the same effect as late as 1951, and that such had been the understanding of mining authorities and mining men in Arizona at the times involved in the case. The plaintiff contends that an administrative practice and procedure arose which should be of great persuasion and should result in construing the statutes in question as meaning that both lode and placer claims were contemplated by the legislature in legislation governing the leasing of mining claims.
The position of the defendants was that defendant Pima Mining Company was in exclusive possession by virtue of a lease entitling it to all the minerals within the boundary lines of the claims, and that the plaintiff as a trespasser could obtain no adverse rights.
Plaintiff makes 15 assignments of error directed to the findings of fact, conclusions of law, and refusal of the court to grant a new trial. Several of the assignments do not distinctly specify the grounds of error relied upon; however, those specifying grounds are directed to the issue of the nature of the original lease assigned to Pima Mining Company, and the validity of the plaintiff's purported overlapping location, and will be considered together.
The following sections of the Arizona Revised Statutes were in effect at the time of the original location of the claim:
' § 27-231. Location of mineral claim on state land
' § 27-232. Methods of locating claims; extent of extralateral rights
'Q. If the mineral deposit is a vein, lode or ledge, it may be located in the manner provided for the location of mineral claims upon the public domain of the United States. Upon obtaining a lease on land so located, as provided in this article, the lessee shall be entitled during the term of the lease to extralateral rights in the discovery vein only to the same extent as similar mineral locations upon the public domain of the United States under the provisions of Title 30, United States Code, section 26 (U.S. revised statutes, section 2322).
'B. Any mineral claim, however, may be located in conformity with the lines of the public land survey, embracing not more than twenty acres. In such case the location shall be marked upon the ground by erecting a monument or placing a post extending at least three feet above the surface of the ground at each angle corner of the claim, as nearly as possible, and by placing in each monument, or on each post, a memorandum stating the name of the locator, the name of the claim and designating the corner by reference to cardinal points, and within thirty days thereafter by filing for record in the office of the county recorder of the county in which the claim is located, a notice of location which shall set forth:
'1. The name of the locator
'2. The name of the claim.
'3. The date of location
Because of plaintiff's contention that the historical background of the above and other related statutes require an interpretation that both lode and placer claims are contemplated, the following outline of previous statutes is given.
Section 11-314 of the 1939 Arizona Code Annotated provided that the manner of locating state mineral lands for leasing should be '* * * in accordance with the law of the state regulating the location of mineral claims on government lands.'
The Legislature of the State of Arizona in 1941 repealed the above section and set forth detailed procedures for leasing land for mining purposes. The Act provided that 'Placer deposits upon state lands shall be subject to location and lease upon the terms provided in this Act for the location and lease of deposits of mineral in place, except that no discovery work shall be required.' Section 11-1606, A.C.A. 1939 (Laws 1941, Ch. 78, § 6). This section was expressly repealed by the laws of 1945, Chapter 87, § 6, and the words 'placer' and 'placer deposits' have not since appeared in laws related to leasing of State land of Arizona.
Plaintiff contends that the repeal of the above quoted section had no effect upon 'placer claims,' as the section dealt with 'placer deposits' and not placer claims. However, the Legislature in providing for the location of 'placer deposits' could have had in mind only one thing, the location of placer claims. Plaintiff states that the Legislature cannot do away with 'placer deposits', geological formations. This is true, but the Legislature by the Act of 1945 presumably wished to change the law and if possible the court should give some effect to it if the purpose is reasonably ascertainable, Beach v. Superior Court, 64 Ariz. 375, 173 P.2d 79 (1946). Therefore, in repealing § 11-1606, A.C.A. 1939, the Legislature could only have intended to do away with the location of the specific type of mining claim known as a 'placer claim.'
'It is fundamental that the repeal of an Act takes away from it all force, and the Act is totally destroyed.' Gustafson v. Rajkovich, 76 Ariz. 280, 285, 263 P.2d 540, 543, 40 A.L.R.2d 520, (1953).
The location of mining claims upon lands of the State of Arizona is governed by the laws of the State of Arizona and not by the laws of the United States, State v. Tracy, 76 Ariz. 7, 257 P.2d 860 (1953); State ex rel. Mullen v. Hendrick, 51 Ariz. 180, 75 P.2d 366 (1938). However, § 27- 232, subd. A, A.R.S., provides that 'if the mineral deposit is a vein, lode or ledge, it may be located in the manner provided for the location of mineral claims upon the public domain of the United States.' The obvious purpose of this section was to provide for the location of claims with extralateral rights as opposed to the location of a 'mineral claim' in conformity with the lines of the public land survey as provided in § 27-232, subd. B, A.R.S. The reference to the manner of location has obvious reference to the physical acts required to initiate a claim for leasing such deposits and certainly could not be construed to incorporate into state law an inference as to the manner of location of placer deposits when the following subsection B specifies the manner of locating 'any mineral claim' by conformity with lines of the public land survey.
The claims of the plaintiff were located in conformity with the lines of the public land survey, as were the claims of the Pima Mining Company, under authority of § 27-232, subd. B, A.R.S. It is clear that the Legislature would and could not grant a lease of...
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