Mercur Coalition Min. Co. v. Cannon , 112 Utah 13 ( 1947 )

This action was brought in the court below to quiet title to forty-one mining claims located in Tooele County, State of Utah. Plaintiff corporation in its complaint alleged in general terms that for a number of years it had been and now is the owner and in possession and entitled to possession of the said mining claims; that defendants claim an interest in the claims adverse to plaintiff's title; and that defendants have no right, title or interest in and to the claims.

Defendant Cannon alone answered. He disclaimed any interest in sixteen of the forty-one claims, denied plaintiff's possession of or title to the remaining twenty-five claims, and admitted he claimed an interest in the property. The other named defendant, Tooele County, did not answer or plead, and took no part in the proceedings other than being represented at the trial.

A trial was had before the court sitting without a jury, upon the issue of plaintiff's title. The trial court found that plaintiff was not the owner and was not and never had been in possession or entitled to the possession of the twenty-five mining claims in dispute, and entered judgment accordingly. Plaintiff appealed and assigned as error that the above finding and decree are contrary to law and not in accordance with the evidence introduced in the case.

The trial court having found the tax deeds of both parties to be invalid, the assignment of error requires this court to determine from the record whether or not there is sufficient competent evidence to establish that plaintiff was in possession of the claims under a claim of ownership.

In an action to quiet title, a plaintiff must succeed by virtue of the strength of his own title rather than on the weakness of the defendant's title. Babcock v. 1Dangerfield et al., 98 Utah 10, 94 P.2d 862.

For the purpose of this opinion it can be admitted the evidence establishes that C.P. Burnham on the 15th day of October, 1931, and the 17th day of December, 1931, obtained quit-claim deeds of doubtful legality from Tooele County, Utah, purporting to transfer title to the claims set forth in plaintiff's complaint. Burnham did not pay the taxes on these claims for any subsequent year until December 6, 1935, and then made payment only for the year 1931. Taxes for the years 1932 to 1937, inclusive, were never paid by the plaintiff or its predecessors. Those from 1938 to the commencement of this action in 1945 were paid by the defendant Cannon.

Reviewing the testimony of witnesses as set forth in the transcript we find the following facts are all that were produced to establish plaintiff's possession. There were only two witnesses who testified to any facts favorable to the plaintiff. The first witness, Brigham Krause, testified that he was an officer of plaintiff corporation, and according to him, C.P. Burnham went into possession of the property during the first part of 1932. Burnham worked the claims every year thereafter, but the nature, extent, location of the work is not indicated. In 1940 Burnham conveyed certain of the claims to the Central Mercur Mining Company, certain to the Mercur Gold Blossom Mining Company, and others to plaintiff corporation. In 1941 or 1942, Burnham was killed in an automobile accident. When plaintiff obtained its deed from Burnham, it immediately started to carry on the development of the property, had several men go out at intervals, and that according to this witness, "he did not know that they (the plaintiff company) had ever stopped doing any of the work." That he saw Burnham doing some work on the Sarah B Group. The record, however, is silent as to whether or not the Sarah B Group is a part of or in any way related to the properties involved in this suit, and the date of the work is not fixed. Other work had been done, but he could not say who did it. That he, the witness, took samples off some of the other claims.

The next witness, Joseph H. Marshall, was also an officer of plaintiff company. He testified that Mr. Burnham had shown him the claims and the work done. That this was in 1934 and since that time the only persons he saw working were Burnham and one, Jamison. That he was interested in buying the claims, and Mr. Burnham, Mr. Jamison, and Mr. Krause showed him the claims and what work was done. That he did not see any work done by anybody but Burnham and Jamison, who were working when he saw them, on the Old Fred Group and on the Red Cloud group. The time when this work was performed was not given, but the witness did say it was "during the years 1934 to the present."

Appellant relies on the rule of law that actual possession under a claim of ownership makes out a prima facie case against a stranger to the title, and unless 2 controverted by one claiming an interest in the property is sufficient to justify a decree quieting title in the plaintiff.

If the evidence was sufficient for the court to make a finding that appellant was in actual possession under a claim of ownership, then it would be necessary for the defendant to establish an interest in himself. However, the court found that plaintiff was not in actual possession and we cannot say this finding is so manifestly erroneous as to demonstrate oversight or mistake which materially affects the substantial rights of appeallant.

The period of possession which plaintiff claimed for itself and predecessors was from 1932 until 1945. The evidence of possession was to the effect that Burnham did some road work, commenced cleaning out the old workings, and did some sampling. This work was done in 1932. For the period from 1932 until plaintiff acquired deeds to the claims in 1940, the only statement in the record that plaintiff or its predecessors might have been on the property is the following:

"Mr. Burnham worked on those claims from 1932 until he died."

The only competent evidence of work being done on any claims after 1932 were the statements by witness Krause that Burnham, at one time or another, worked on the Sarah B Group which, as previously stated, was not identified by any witness as being one of the claims in dispute. As to what year or years this work was done is not shown by the record. And the statement by the witness Marshall that he had observed that work had been done on the Gold Blossom claims, on the Dead Horse claim, on the Old Fred Group, and on the Red Cloud claim. This latter evidence was limited to the year 1934 or 1935.

As for the plaintiff company and work it performed, we have the single statement by one witness that

"I did not know that they (the company) ever stopped doing any of the work."

This can hardly be considered proof that the plaintiff company worked on the properties to such an extent as to establish possession.

In 1940 Burnham conveyed the Old Fred Group, Gold Blossom Group, Red Cloud, Fairfield, Three Pointers, Golden Era, Golden Wedge, and Mother Gibson to the Mercur Gold Blossom Mining Company. In 1944 this company conveyed the property to plaintiff corporation. At the same time, 1940, Burnham conveyed additional claims, to wit, Keystone 1, 2, 3, 4 and 5; Hyland; Gladys; Primero; Minerva; Juno; Diana; Manhattan; Tribune; Edna May; and Louise 1, 2, and 3; all to the Central Murcur Mining Company. This company in 1944 conveyed the claims to plaintiff corporation. The record is entirely silent as to any work ever having been done by these two companies during the four years they held title, and many of these are claims involved in this action.

The factual situation thus portrayed by the record is that sufficient competent evidence was not introduced by plaintiff corporation when considered in connection with that offered by defendant to convince the trial court that the work done on the properties from 1934 or 1935 until the commencement of this action established possession.

We do not intend to, neither do we, hold that an owner must do work on patented claims to establish an interest in the claims. However, in an action wherein plaintiff relies not on a record title, but upon possession, it is incumbent upon the plaintiff to show sufficient facts to justify the trial court in finding it was in possession.

One question must be disposed of before we set forth the facts presented by defendant to contradict those presented by plaintiff. This is, must the defendant before being permitted to contradict plaintiff's evidence of possession show some interest in the property? Appellant raises this 3 question and cites the case of Campbell v. UnionSavings et al., 63 Utah 366, 226 P. 190. There is a statement in that case to the effect that defendant must show some interest in the premises before a question can be raised that the court erred in quieting title in plaintiff. The cited case does not assist plaintiff in this present action for two reasons: First, plaintiff must recover on the strength of its own title, and not on the weakness of defendant's; and second, defendant claimed and offered evidence to establish he was the owner of the tax title, had paid the taxes on the property since 1938 and had been in possession of the property. It may be that defendant's evidence did not establish title in himself, but at least it was sufficient to take him from the rule that a total stranger to the action is not in a position to raise an issue of plaintiff's possession. We, therefore, hold that defendant established a reason for contesting appellant's claim, and therefore could refute, if necessary, plaintiff's evidence on possession.

Defendant's evidence tended to establish the following facts: That he acquired title from Tooele County in 1938 by virtue of a tax deed and had paid taxes on the property since that time. That his father was familiar with the property, had been on it every year, had worked part of it, and that from 1931 to the starting of the action, no work had been done on the premises by any one other than that performed by or for defendant. That the property had been leased by defendant to other parties for range purposes and so used. And that while defendant's father was on the property many times during the period 1931 to commencement of this suit, he never saw anyone working the property.

In view of the record we are compelled to affirm the trial court. During the thirteen years plaintiff claims possession, the property in dispute has been held by an individual, and three corporations. Two of the corporations lost their charter with the state due to failure to pay the annual 4 fee, and there is no evidence that they went into possession of any claims. The evidence of work done, if any, is meagre, inadequate, and disputed. Taxes for only one of the thirteen years were paid by plaintiff or its predecessors so that intention to hold the property is not indicated. From a colloquy between counsel and the court it appears that there were ten separate groups of claims, yet their location with respect to each other, whether or not they are contiguous, whether or not they are located so as to be operated as one, and whether or not the working on one claim would be evidence of intent to possess all, cannot be answered from the record. A fair inference from all the testimony is that plaintiff's possession was more contemplated than actual. The trial court was entitled to resolve any dispute in the evidence in favor of the defendant, and having done so, we cannot say that on the record as certified to this court the lower tribunal was in error in finding that plaintiff failed to establish possession.

The judgment is affirmed with costs to respondent.

McDONOUGH, C.J., and PRATT and WADE, JJ., concur.