Mercur Coalition Min. Co. v. Cannon

I concur. In this quiet title action the plaintiff sought to prove itself entitled to a decree quieting its title to 41 patented mining claims by:

1. Showing it derived title from Tooele County by quit-claim tax deeds, or

2. Showing actual possession under claim of ownership, thus making a prima facie case sufficient against a stranger to the title to support a judgment quieting title in the plaintiff.

Defendant disclaimed as to 16 of the claims so only 25 are here in contest.

As to showing title by the quit-claim tax deeds from Tooele County: The quit-claim deeds themselves were the only evidence of title from Tooele County. A party who sets up title by tax deed must show that all requirements of law have been complied with to make the tax deed valid. Asper v. Moon,24 Utah 241, 67 P. 409; Bolognese v. Anderson, 87 Utah 450,44 P.2d 706, rehearing 87 Utah 455, 49 P.2d 1034. Section 80-10-35, U.C.A. 1943, simplified the proving of compliance with the taxing requirements by providing that a certified copy of the record of any tax sale is prima facie evidence of regularity of all proceedings connected with the assessment, valuation, and the other steps of the proceedings and providing that such a certified copy of the record of the tax sale casts the burden of showing any irregularity in any of the proceedings on him who asserts that irregularity. However, in this case the plaintiff made no attempt under Section 80-10-35 or otherwise to prove that its tax deeds from Tooele County were supported by the regular compliance with all the tax procedure requirements. The plaintiff therefore did not prove any title in itself by virtue of the tax deeds from the county.

Did the plaintiff show possession so as to give rise to make a prima facie proof of title? The plaintiff's evidence of possession is as outlined in Mr. Justice LATIMER'S opinion. The defendant's evidence contradicts the evidence introduced by the plaintiff. Defendant's father testified that he was acquainted with the claims here involved and that he visited the claims each week from 1931 "until the war started" "about 1941." He testified that during that period no work had been done on the 25 claims here involved except a little done by him and under his direction. He also controverts the plaintiff's other evidence tending to show its possession such as the building of roads and the assertion that employees of the plaintiff camped on the land. He testified that he leased the property for sheep grazing purposes in 1938 and that the lessee since that time and until the present has grazed sheep over the land every spring and fall. He testified that he has paid the taxes on the property each year since 1938.

It is apparent that the evidence as to plaintiff's possession is in conflict. The question of its possession was a question of fact to be determined by the trier of the facts, in this case by the trial judge. Apparently the trial judge determined that plaintiff was not in possession. (There is no express finding to that effect but the judgment expressly says,

"And it is further ordered, adjudged and decreed that the plaintiff is not and never has been the owner, in possession or entitled to the possession"

of the 25 claims here involved). There is competent evidence to support that determination. It was therefore not error for the trial court to so decide.

Plaintiff did not show possession which would be prima facie proof of title nor title by tax deeds nor in any other way. It was therefore not entitled to a judgment quieting its title to the 25 claims here in contest. The judgment of the lower court should therefore be affirmed.

In this case the court adjudged the plaintiff was

"not and never had been the owner, in possession or entitled to the possession of any of the other claims [those at issue in regard to which defendant Cannon had not disclaimed] and as to such other claims its [plaintiff's] action is hereby dismissed with prejudice."

No judgment as to the nature of defendant Cannon's rights in the contested claims was rendered for the reason apparantly that Cannon in his answer simply denied that plaintiff was the owner of or in possession or entitled to the possession of any certain of the claims and asked for no affirmative relief. But plaintiff alleged in the fifth paragraph of its second amended complaint

"that said defendants or either of them, has no right, title or interest in and to the said mining claims or any of them."

This allegation defendant Cannon denied. The prayer of plaintiff's complaint asked that defendants be required to set forth herein any interest they or either of them claim in and to said mining claims or either of them.

In the second Bolognese v. Anderson case, 97 Utah 136,90 P.2d 275, 276, we said:

"And as appellants did not in their answer ask for any new or affirmative relief by way of quieting their own title, they are not entitled to a decree. See Fisher v. Davis, 77 Utah 81,291 P. 493."

I suppose it was on the strength of this sentence in theBolognese case just cited and certain California holdings that the court below did not determine whether Cannon was the owner or entitled to the possession of the claims in contest. I think this leaves the parties in an unfortunate position. The plaintiff is notified that he has no right, title or interest in the contested claims but the defendant, who asserts indirectly because of his denial of plaintiff's allegation of defendant's non-title and interest that he, the defendant, has an interest, does not have that question determined as to him.

From our experience in regard to similar pleadings in several of these quiet title cases, defendants have seemingly intentionally refrained from asking for affirmative relief in order that they may defeat the plaintiff's claim of title but not have their own tried out. This is an unfortunate state of the law. It permits the defendant to assume a dog-in-the-manger attitude and only settles the question as to whether the plaintiff has or has not title. I think as between the plaintiff and defendant in the suit the pleadings should be construed as putting in issue the rights of each as against the other, especially as in the instant case the plaintiff prayed that defendants be required to set out their title or interest.

It was not meant that litigants play chess with the law. Where the issue is as to mining claims and public domain, the consequences of a one-sided determination as to ownership or right of possession may lead even to gun play. A plaintiff is adjudged affirmatively to have no interest; but it is not found either that the defendant has an interest. The plaintiff may thereupon proceed to enter and attempt to establish possession with likely resistance of the defendant. The half determined case sets the stage for a quarrel. But in this case the plaintiff has not appealed from the court's failure to find as to defendants' rights in the claims; hence, it is not before us. When it does come to us, I shall feel myself free to determine whether in an action to quiet title under our Section 104-57-1, U.C.A. 1943, reading:

"An action may be brought by any person against another who claims an estate or interest in real property adverse to him forthe purpose of determining such adverse claim." (Italics added),

the defendant should not be required to disclaim or set out the nature of his interest, if any. I also reserve my opinion on whether the trial court should not find and decree the nature and extent of that interest, and that, whether or not the defendant pleads for affirmative relief.