*1 Three. 1318-43052-3. Division March [No. 1976.] Mining Appellant, Inc., v. Surprize, Respondent. Company, *2 Toole, & Witherspoon, Kelley, John L. Davenport Neff for appellant. Winston, Cashatt, Mc-
Leo J. Driscoll and Repsold, Connelly Driscoll, & for Nichols, respondent. This isa contract action1 brought by J.
Green, Mining Surprize, Co., Inc. Sunshine 1See Silver v. 74 Wn.2d jurisdiction holding (1968), this this state had over P.2d proceeding action. it was a contract because defendant, against Sun- Surprize, plaintiff, Inc., Silver ore account Mining require defendant Co., to shine (YGV) within Vein” the “Yankee Girl from removed alternatively, plaintiff’s mining for cancellation or, claim that, because asserts In defense, contract. Sunshine is not rights vein YGV, owns the extralateral accounting by is not and, therefore, an covered contract Alternatively, required. the action contends Sunshine trial While the barred of limitation laches. statutes extralateral find that owned refused to court subject was not YGV, it did find that YGV acquired and, were, if it title contract even Sur- cotenant, ore ouster of its removed prize, through possession. court held Further, of limitation and laches action statutes was barred Surprize’s request cancel the contract. and denied Silver parties appeal judgment Both from a of dismissal. *3 Surprize background is as
The factual follows: Silver mining Mining d’Alene District owns a claim Coeur Kellogg, near Idaho. This claim is located near claims mining in owned and borders other claims Sunshine which Sunshine has contractual interests:2 Bang, Thin, Sunshine, McKenzie, 2Sunshine owns Iron exploration agreements claims into McKenzie Fracture and entered Surprize Silver and Sunshine entered into ex- ploration agreement. agreement, Under that Sunshine con- veyed Surprize to Silver its interest in three small claims upper Surprize group, located section of the Silver reserving extralateral within the exterior boundaries of may
said claims which owned, Sunshine have whole part, prior to the location of claims. said (Italics ours.) conveyed Surprize In return, Silver an undi- Surprize group vided one-half Sunshine, interest in the together right with an unlimited of surface and under- ground ingress egress. agreement Under this Sunshine explore develop Surprize group was to as “in Sun- judgment mining shine’s is warranted aas sound venture.” receipts equally Gross were to be shared between them expenses. after deductions for Sunshine’s was re- quired to: Surprize, monthly quarterly,
furnish either statements production together general and costs, with informa- tion amount, as to the location and character of the work performed. Surprize given right inspect the under- ground being performed. work accounting
Sunshine has never rendered an to Silver Sur- prize, although removed excess of million worth $2 part ore from that of the YGV located within the group just accounting of claims. When an was demanded prior to of this action in 1965, commencement refused. *4 assigned present major
The errors four issues: rights YGV, 1. Does Sunshine own extralateral the thereby rendering agreement inapplicable 1946 to that the vein? covering Hilda, Mary-E, Oslo,
with Sunshine Consolidated the SCI No. Umbrella, Rex, Metropolitan claims, Red and Roberts and Mines Corporation covering Boston, Tough Going, the and Utica claims.
5 rights in the 2. does not own extralateral If Sunshine agree- from excluded the that vein nevertheless YGV, was ment? by agreement, did Sunshine
3. If YGV covered through acquire of ouster ore removed title possession? Surprize, cotenant, Silver of 4. claim barred statutes Is the of Silver or limitation laches? Does Own Extralateral
I. to the YGV?
Rights running enjoyment rights possession The of mining governed act of a claim locator are May provides: This 10, 1872.3 act mining any min- locators of all made on have
The locations ledge exclusive vein, lode, eral right . . shall . possession enjoyment in- of all the surface veins, locations, of all cluded within the lines their top ledges throughout depth, lodes, and their entire apex or tended downward or ex- which inside of such surface lines lies vertically, although lodes, veins, such may ledges depart perpendicular in their so far from a course downward as to outside vertical side extend posses- right surface But their lines sion such locations. parts ledges shall be to such outside such veins portions confined to such thereof as lie vertical between planes through described, drawn downward as above own locations, end lines their continued in their so planes exterior direction that such will intersect such parts ledges. of such veins or (1971). right § a follow vein outside U.S.C. come to be called “extra- boundaries one’s own claim has rights”. Lindley, Law Mines, American lateral See C. (3d Relating § 566, ed. to Mines and Mineral Lands at 1252 1914). only Extralateral attach to those veins which The con- have their within the boundaries of claim. 3 30 U.S.C. §
6
cept rights of extralateral is illustrated as follows:. apex words, other once a claimant establishes the of a may vein within the boundaries of claim, his he follow that (dip) vein on its downward course outside the claim so long as he remains within the extension of the end lines of his claim. mining presumed
A locator of a
claim is
to own all ore
within the boundaries of his claim extended downward
vertically.
Mining Milling
St. Louis
&
Co. v. Montana Min-
ing
194
Co.,
235, 239,
U.S.
953,
48 L. Ed.
vertically ing upon your you prove you downward, until are work- following vein which has its within you claim,
surface of which are the owner!”
(cid:127)7 meet failed to court held that Here, the trial required extralateral proof of an burden the substantial rights claimant.4 right extralateral
First, Sunshine contends that *6 prove by sur- a sufficient YGV was established entry findings and apex Thin and that the Claim face disagree. contrary error. We the conclusions to the demonstrated found that Sunshine The trial court apex length throughout of the the
of some vein which courses Claim. Thin continuity of prove . failed . . but has Sunshine apex gangue the between vein mineralization seen between the Thin and Yankee Vein Claim the Girl the 2700and 3700-footlevels. attempted
Challenged finding 33. of fact No. prove continuity identity claimed surface and between the apex 2,700- the on its and the YGV between Thin Claim samples taken from drill and 3,700-foot level mineral along projected of the YGV holes downward course court and level. The trial 2,700-foot between the surface revealing,” specifi- “not too characterized this evidence as cally finding that: reading logs covering drilling From the drill above impossible configuration
2700 it is to determine the Yankee Vein Girl between Yankee Girl adit and Commencing the 2700-foot level. with Hole 27-011 the apparent surface, 2400-foot it is level that the vein 4Although purposes opinion of this need we not determine ledge” “vein, whether the is a lode or YGV which extralateral may attach, findings upon geological data, the trial court’s based testi mony prior experts, judicial interpretation support 2,700- 3,700-foot conclusion YGV between is a levels ledge lode, vein, “practical Eureka understood miner.” Mining Mining (No. Co., 4,548) Consol. v. Richmond 8 819 Co. F. Cas. Mining (C.C. Cheesman, 529, 1877); Nev. Iron Silver Co. v. 116 29 U.S. Mining Mining 712, (1886); 6 L. Alameda Co. v. Ed. S. Ct. Success Mining (1916); Co., 618, Co. 29 Idaho 161 P. see Star v. Mining Smelting (9th Co., 1920); Federal & Cir. Last F. 888-96 Mining Mining Concentrating Co., Bunker Chance v. Hill & & Co. S. (9th 1904). 131F. 586-87 Cir. irregular very
is those possess narrow. It likewise does not distinguish give characteristics which it and it its identity between the 3700 and 2700-foot levels. There no stringers concentration of mineralized that interlace, converge, stringers continuity many or weave in and out. There are isolated imperative showing area, so it is that in clearly demonstrate a concentration stringers single mineralized or a continuous fissure. Apparently higher dealing at the levels we are with one precise vein with boundaries. Whether is continuous nearly over this vast distance of half a mile cannot be interceptions established some of amount of diamond holes, drill apart. requires large which are 800 feet It geological speculation extremely to tie this narrow band of mineralized rock for over a half a mile intercepts. with an on the basis of these drill hole way telling There is no whether the drill inter- holes cept the same narrow vein or band of mineralization at they various levels as could be discontinued at certainly number of horizons. The drill do holes not show *7 configuration a vein similar to that between showing 3700 and levels, 2700-foot tremely and without that it ex- seems very single difficult to tie a or fissure narrow existing Regis band rock St. between the 2700-foot depth. level and the with Yankee surface Girl Vein at Challenged finding fact of No. 34. degree continuity
There is no established identity which an extralateral claimant must show apex between an within the boundaries of claim and his pursuing adjoining vein is required he into an claim. dependent upon showing continuity identity and is Tungsten, Gold, facts of each case. Silver & Wallace, Inc. v. 104 Colo. 273, 280, P.2d Here, the trial presented samples court was with mineral from recovered apart narrow drill holes often hundreds feet between the samples surface and the 2,700-foot level. The recovered only contain material common, not to the YGV between the 2,700- throughout 3,700-foot and levels, but the Coeur Mining up d’Alene District. The trial court summed difficulty establishing apex without further demon strative evidence: dip from the surface Nor has mined down angle dip
the Yankee to reveal for certain its Vein Girl configuration. case makes the and It is fact which compared reported In cases. somewhat unusual as extensive work at all of the latter cases has been there demonstrating the strike near the surface of the claim dip geological projec- and In addition, the vein. what distances tions were made weren’t over such extensive very in that involved in Sunshine has mined the ore at the lower case. This is unusual this case pro- levels and jected up-dip attempt nearly tie a mile in an half mining apex in their in with a claims under its surface control.
Unchallenged finding
Continuity
of fact
35.
and iden-
No.
tity
depth
have been found to exist between a vein at
and
apex
upon
workings of the mine
its surface
based
actual
Mining
positions. Alameda
between
In
Co. v. Success
those
Mining
(1916),
Co.,
Idaho
worked, what was found therein and the condition of the many open stopes certainly ... better veins dip, angles, spurs course, character any expert testimony given. the vein than that could be (Italics ours.) continuity identity hand, On the other presumed unexposed will not be over substantial distances. example, Bailey, supra, For in Collins v. the court refused continuity to find between an and a vein over an unexposed Again, Boston distance of 550 feet. in Heinze v. Mining Copper supra & M. & Co., 487-88, Consol. the court said: *8 plaintiffs operations developed have not their so workings apex from their vein to
their own the down territory disputed to substantial evidence as furnish probably Indeed, that their claim is they well founded. while concede that is a vein the defendant’s there ground dipping contention is south, their own to exclusively engineers upon opinion their based Healy having apex in that, if the vein its the Minnie ground dip angle from to the same certain continues at
10 points exposed upper in their where it is levels workings, point is will reach the where the defendant conducting operations. not to over- This is sufficient presumption the may come the that the owns ores defendant presumption This beneath its own
found surface. conjecture speculative or even intelli- be overturned gent guess. (Italics ours.) 2,700-foot
Here, the area between the surface and the only physical unexposed. The evi- level is unworked and continuity identity are the dence of over this distance up samples to feet. at 800 drill-hole taken intervals samples pattern of mineralization common These show a unique mining district, and not the YGV. entire properly Consequently, trial court found that Sunshine apex proving to meet its burden of a surface failed YGV. unchal-
Second, trial court’s Sunshine contends that the “undoubtedly lenged finding lies YGV property or controlled somewhere” on owned right to vein. is sufficient its extralateral to establish disagree. We analogizes its support contention, of this a
position under of extralateral of a claimant outcrop, apex” apex.” does not A one that “blind is “blind apex must be However, such but lies below the surface. apex. certainty degree proved a surface with the same Mining Ed. Flagstaff 463, 25 L. Tarbet, 98 Co. v. U.S. Silver Mining Ajax Mining (1879); Gold Co. v. Calhoun Gold 253 (1901); Jim 885 L. Ed. S. Ct. 499, Co., 182 U.S. Mining Mining Tonopah End Consol. Co. v. West Butler (1918); Iron Ct. 574 Ed. 38 S. 450, 62 L. Co., 247 U.S. 1880); (D. Murphy, Mining 1 C. F. 368 Nev. Co. v. Relating Law Lindley, American A Treatise on the Mines, 1914). (3d § ed. Lands Mineral to Mines and apex” analogy of little “blind to a Thus, Sunshine’s value. specificity showing greater requiring
The reason *9 apex present as to the location of is clear than here from the inherent limitation contained the act: right possession parts
But their to such outside of such portions . veins . . shall be confined thereof to such planes as lie between . vertical drawn downward . . through the end lines their locations . . .
(Italics ours.) following diagrams of the surface area possible apex of a claim illustrate some locations of an relation to end lines and the effect that such location has upon rights granted extent extralateral under the act: apex
1. In the ideal case the
of a vein
both end
crosses
entitling
lines of the claim
the locator to
extra-
exercise his
greatest
lateral
extent allowable under the
Lindley,
Relating
act. See 1 C.
Mines, American Law
§
(3d
1914).
Mines and Mineral Lands
309,
ed.
apex
2. Where of a vein crosses an end line of a
passes
through
claim and then
out
line,
a side
the courts
imaginary
point
locate an
end line at the
where the
Mining Milling
crosses the side
Del
line.
Monte
&
Co. v.
Mining Milling
Last Chance
&
Co., 171
U.S.
43 L.
Ed.
(1898);
Copper
18 S. Ct. 895
Parrot Silver &
Heinze,
Co. v.
Mont.
It is from these that the location illustrations apex in relation to the lines of a claim determines end sweep rights. apex be Hence, extralateral must precision. located some with virtually precisely admits that it cannot locate apex lines of claim YGV relation the end intriguing argument
or those claims under its control. The apex properties, that wherever the is located on it will such rights entitle extralateral to the YGV on n claims is illustrated follows: concept. “floating apex” arguing effect, Sunshine is for a apex” adopt “floating concept would
To Sunshine’s ignore express require limitation this court contained must 1872,ie., in the act of an extralateral claimant prove of an of a vein in relation to the location permitted follow end before he be lines his claim will authority property.5 that vein into No cited another’s statutory long would allow from this established deviation H. Lind limitation our research discloses none. Curtis mining ley, authority law, foremost describes spirit approach statutes on this sub in which courts should Mining ject by & quoting Del Monte Brewer in Justice Mining Milling Milling Co., Chance & 171 U.S. Co. v. Last (1898): 55, 66-67, 43 L. Ed. 18 Ct. 895 S. considering ques- borne mind And must be dealing simply statutory presented are that we with
tions *12 any showing rights. rules no of local customs or There is by prescribed affecting rights stat- defined in and the 5 agreement proposed preliminary Arguably, of the 1946 a 1945 draft establishing by of exact its burden have eliminated Sunshine would “any proposal apex. The that Sunshine reserve of was location any may have, part, ore existing or in to veins or in whole conveyed apex [Surprize north thereof area which bodies within 298.) provision (Italics was No. This ours. Exhibit Group] ...” Surprize. rejected beyond may and the statute ute, the terms courts go. They power legislation. They have no cannot as- any equity sume the existence natural and rule that may equity party reason such a a vein into follow territory neighbor, appropriate his it to his congress own use. cases arise which has made no If provision, supply Congress the courts cannot the defect. having prescribed rights may upon the conditions which extralateral acquired, party bring be a must himself simply within those conditions or else be content with territory. the mineral beneath the his It is surface of undoubtedly primary thought that true of the statute disposal is the of the mines and minerals, and in the interpretation primary purpose of the statute this must recognized given party be Hence, effect. whenever a acquired ground has the title to within whose surface many along area is the of a vein a few or with feet right dip its course or strike, a follow vein on its length ought for the same if to be awarded to him it can only done, be if it can done, be under fair and language natural construction of the statute. If the ground everywhere surface level and veins constantly pursued straight a line there would be little difficulty legislation provide contingencies, for all apt regions but mineral be found in mountainous great irregularity where of surface and the exists course irregular or strike of surface, the veins is as as the so many may statutory provisions cases arise which will fail to secure to a vein discoverer such equitably ought amount thereof as it would seem he receive.
(Italics ours.) Relating Lindley, Law Mines, C. American (3d 1914). § to Mines and Mineral Lands at 1295 ed. Justice Brewer further said:
We make these observations because we find some opinions they assertions have writers devised equitable rules which will work out solutions of Perhaps all may difficulties. those rules have all the vir- tues which are claimed for them, and if so it were well if Congress persuaded could be statute; to enact them into may, but be question that as it not, courts is equity, what is but what saith the statute. approach This recognized Quilp to the act was Gold *13 Mining Republic Corp., 450-51, Co. v. Mines 96 Wash. (1917): 165 P.57 dealing keep
[W]e con- must in view we are with that rights parties, parties, the tractual of the and also that contracting view matter, with reference to the had in statutory provided rights mining their as Congress the statutes prescribed the conditions United States. upon might rights acquired; and a extra-lateral which be party dealing necessarily mining must with locations bring himself those conditions or else be content within simply own with territory. the mineral beneath the surface of his contemplated “floating apex” concept the not was day locators act of 1872.That act for the when was written apex ordinarily the of of veins at claims discovered the discovery ground. encourage To of min surface of the right pursue granted vein erals, locator to dip on outside the sidelines of his claim but within is extension of lines claim. The case the end of his instant changed. Here, have Sun the fact that times radiating shine from Jewell has a of tunnels its network many intersecting under Shaft veins thousands feet ground. at tunnels intersected YGV One these depth circumstances, a about feet. these 3,100 Under upon placed an extralateral claimant substantial burden is presumption an owner of a claim to overcome claim. boundaries his owns ore within the all apex up-dip Mining or near surface establish justifiable. economically burden, To avoid this often not exploration agreements, parties frequently as the into enter may practice attempted parties This do this case. apex authority recent case on law. lack of account require mining practice amendment seems Modern problems specifically with the 1872 to deal the act of underground deep However, this discoveries. arise from existing legislate. trial may law, the Under so court properly, evidence, concluded court, based substantial prove location of an did not that because claims, its end lines in relation YGV prove right it failed to to remove ore from beneath the Surprize group of claims virtue of its extralateral to the YGV.
II. Is YGV Excluded Agreement? From the Surprize assigns findings error to the trial court’s *14 parties which agreement effect determine that the the 1946 cotenancy relationship
did not intend to create a Findings as to the YGV. 38, 39, 40, 41, fact Nos. 42. findings upon parol These were based evidence of the cir- surrounding agree- cumstances the execution of the 1946 ment and a recital contained therein: exploratory
Sunshine has heretofore driven an crosscut southerly on its 3100 level in a direction, of feet of a distance approximately point 2400 feet ato within a few the south line of the “Hilda” Claim of the Con- Sunshine dipping solidated. Said crosscut intersected a south vein system point at a identified the intersection Co-or- Departure dinates Latitude S. 81243 East. Sun- Survey. point easterly shine From this drifts were driven westerly along sys- and the course strike of said vein tem for several hundred feet. These are a short drifts distance north of the south side line of said “Hilda” Claim. exploring words, other Sunshine was the claim immedi-
ately Surprize group north the of claims. The court identify that, reasoned while this recital did not the YGV parties signif- identity name, both were aware and Surprize icance; knew extralateral Sunshine claimed penetrate to the and that vein would YGV Surprize group; parties therefore, and never intended agreement. Specifically, the YGV to be covered under their the court found: agree
Surprize right, nev- didn’t then to that claim of but entering was aware of and knew into it, ertheless that agreement, did not intend to or con- the cede Sunshine admit co-tenancy relationship responsibility respect fully right to its vein, rather to reserve its to claim of situation but independent ownership. This created an unusual right although
for extralateral Sunshine’s agreement, right excluded from the the exercise might taking of ore which come within involved the terms co-tenancy thereby, agreement created prove not time could its extra- at some later if apparent right. must have been conflict lateral This contracting parties signing time both nothing agreement it. but was done to resolve Surprize Finding contends this of fact 38. Silver No. (1) reasoning ex- was not erroneous because is YGV (2) pressly agreement, excluded from the ambiguous. agreement Therefore, consideration is parol import unexpressed ex- evidence intention to agree. parol rule. We violates the clude YGY agreement unambiguous. is clear and The 1946 exploration Surprize agreed to the Silver undertake claims and Surprize group, belonging ore,
if commercial may ex- reimburse itself discovered, Sunshine pro- pense ceeds shall share financed Sunshine out of the net of work ore, of such after which Sunshine *15 receipts equally gross from such ore the conveyed (Italics ours.) the three small When Sunshine Surprize, to Silver it reserved claims rights of the boundaries extralateral within exterior may owned in whole or which Sunshine have claims said prior part of said claims. the location only (Italics ours.) Sunshine those veins which Thus, rights if reserved; did not own owned extralateral are it agreement. rights, vein would be covered the such the parties recognized recital, the is evident that From the it Surprize group might in the based be discovered that ore immediately upon explorations occurring If to the north. discovery and Sunshine owned extralat- was made such a rights vein, then it would be excluded from the eral reserving rights agreement provision such to Sun- the proved, extralateral However, if such are not shine. agreement required properly found, the court trial the the the for ore removed from to account group. argues that the circumstances surround agreement support
ing
trial
execution
the
the
parties
conclusion that the
court’s
intended to exclude the
Although surrounding
may
circumstances
used to
YGV.
be
agreement
though
ambiguous,
even
construe an
is not
vary
circumstances cannot be used
such
the terms of an
agreement.
Seavey
This limitation was outlined in J.W.
Hop Corp.
Pollock, 20
337, 348-49,
v.
Wn.2d
is not admissible for the or absence evidence to, contradicting the terms of a written contract, in the parol fraud, accident, mistake. But . . . parties admissible to the is show situation of the circumstances under and the which a written instrument purpose ascertaining for executed, the was the inten- parties properly construing writing. tion of the evidence, however, purpose admitted, Such is not for writing importing expressed into a an intention not of therein, the words elucidating meaning but with the view of employed. Evidence this character is admit- purpose aiding interpretation ted what for of of purpose instrument, and not is showing independent intention the instrument. It duty meaning of the court to declare the of what is written, and what was intended to be written. If goes no further than to show the situation of parties the strument the circumstances under which in- executed, then it is admissible. ours.) County (Italics See also Grant Constructors v. E. V. Corp., Lane 120-22, 77 Wn.2d 459 P.2d (1) publicity surrounding trial court considered discovery the YGV the location described in the recit- (2) agreement; known als of the the fact that it was well *16 ownership claimed (3) Sunshine that vein; and probably penetrate Surprize would claim the vein circumstances, Based on these the trial court determined parties intended to exclude the YGV from the doing agreement. so, we believe the court erred “im- writing porting expressed into the an intention not there- prove failed to in.” its right, Since extralateral Surprize group removed from the within the ore YGV subject agreement. terms of the 1946 to the cotenancy agreement relationship created a This between provided: and when Surprize agrees upon conveyance the execution of the preceding paragraph [three small referred to convey per fifty claims] to to Sunshine an undivided cent Surprise (50%) Group, [sic] in interest with ingress egress, right of both on the surface unlimited fifty (50%) together per underground, with a cent and undivided veins, lodes, in all interest and to Surprize may ledges or ore bodies which own or be enti- flowing possess by rights tled to virtue extralateral Surprise Group. ownership [sic] of the from the exchanged bring (Italics ours.) The deeds referred to were Uphoff cotenancy. ing see 64.28.020; into existence the RCW College, 213, 216, 146, 351 Ill. 184 N.E. v. Trustees Tufts Mining (1932); § 22.3, at 4 American Law 93 A.L.R. Property Thompson § (1974); at 125 1A Real (1964). accounting action between cotenants This is an limi raised the defenses statutes has which Sunshine operate to bar can Before these defenses and laches. tations Surprize from an ouster of Silver action, there must be cotenancy. McKnight Basilides, v. 19 Wn.2d (1943). 143P.2d 307
III. Did Sunshine Acquire Title Ore From the YGV Ouster
Removed Surprize? Cotenant, Silver acquire may, ouster, cotenant That one possession through is well adverse cotenant of his Possession—Co- Adverse recognized. A.L.R.2d Annot., annotation, in of this authors tenants 23-24 summary, state: undoubtedly may common hold the . . .
A cotenant adversely . and such . . his cotenant premises fashion against eventually ripen title claim into his as possession amica- though was commenced his them, even possession was that his bly establish To a cotenant. question he was the time that at show he must premises possession ... actual . . . *17 actual ad- he intended an claim, which he that makes did in that he time, as of that operative verse possession and, lastly, adversely, fact hold and claim the premises notice had or knowledge that his cotenant . . . to be elements short, are but three that there fact. in adverse intent; (2) possession established: (1) notice. fact; and or (3) knowledge to his posses- render . . in order for one cotenant . some be on his part sion there must adverse to the others mani- making . . . act or acts exclusive ownership knowledge a and holding carrying hostile fest fact of The nature notice it to the possession. ones out of by said to be characterized variously the acts essential is or most of instance some expressions each employing noto- overt, outward, public, the following open, words: unmistak- clear, and rious, hostile, unequivocal, positive, able. italics ours. A.L.R.2d
(Some
Footnotes omitted.) Annot., 35
Minerals—Adverse Possession
24,
McCoy v.
at 175 (1954);
§
24,
Lowrie, Wn.2d
Evidence adverse possession by a cotenant must be than which would be stronger title a required to establish possession in a by Thus stranger. proof of ouster a cotenant another must be than stronger strangers. the case cotenant . An . . adverse claim his against tenants cannot be established fellow by inference. and in (Italics section ours.) pages 263-66: of a can possession before cotenant adverse to become cotenants the have his latter must or “ac- “knowledge” is knowledge” tual exclusive possessor claiming and is holding ownership premises adversely them. . . . rule knowl- prevailing appears be that may arise from actual edge notice . . . it required arise acts or circumstances may verse such ad- attending from overt, which are possession notorious, unequiv- ocal their character and From import. such acts of the informed duty other cotenants be thereof draw such reasonable inferences therefrom as pru- persons possessed of, in, like dent interested informa- naturally pos- and such do, tion would cotenants out of prevent operation cannot session statute- they proving limitations did know of the facts affecting knowing or, them, their interest, did not correct conclusions it is draw therefrom. Thus held that may presumed notice be and will constructive be under *18 proper the not will hand, circumstances. On the is held that other it knowledge possessor hostile of the is attitude by presumed, proof to be but must be such as shown preclude part knowledge all on the doubt possession In notice the adverse event, owner. must clearly brought possessor’s home to be coten- actually constructively. must, least, or at the ants, be There possessor notice, constructive, actual or is premises adversely holding the to his cotenants. knowledge by possession of the Mere cotenants out of by possession fact of cotenant be obvious one cannot posses- proof knowledge into one assertions converted that the adversely. Vague public be the claiming sion was opinion claiming possession that a cotenant in unequivocal such owner do establish notorious acts of presumed. be notice his cotenants must character that McKnight (Italics omitted.) Basil v. ours. See Footnotes (1943); Fritch v. 391, ides, 394-99, 19 Wn.2d P.2d 307 (1959); v. Nicholas Cous 496, 53 Wn.2d 335 P.2d Fritch, App. (1969). examine 459 P.2d We 133, 137, 1 Wn. ins, principles. light general case in the facts of this these Surprize it deter- erred when contends court Silver by possession “ousted” Silver adverse mined ownership rights a cotenant from its Basically, thereby acquired ore it removed. title to the had Surprize argues that the is of insufficient evidence support quality court’s determination trial infringing inquiry that Sunshine had actual notice by exercising upon an adverse claim mineral agree. the minerals. We by possession previously of adverse noted, evidence
As convincing stronger than that and more must be a cotenant by pos- required to establish title be which would stranger. McKnight supra In Basilides, session a v. page quoting prior court, case, from a said:
“To
an ouster of one
show
tenant
common
his
stronger
requires
convincing
cotenant
than is
and more
necessary
ordinary
to sustain an
claim of adverse
possession.
simply
Our function in such a case is not
to determine
support
finding
whether there is substantial evidence to
a
inquiry
notice,
actual
but whether the evidence meets
higher
being
“unequivocal”,
standard of
“clear”,
“un-
“convincing.”
Sego,
mistakable”, or
In
See
re
82 Wn.2d
(1973),
pointed
739,513P.2d 831
where the court
out:
firmly
We are
committed to the rule that a trial court’s
findings
appeal
they
of fact will not be disturbed on
if
supported
Sylvester
are
“substantial
Im
evidence”.
v.
ho ff, 81 Wn.2d
The evidence on which the trial court based its ultimate finding inquiry or conclusion actual or notice are con- findings supported tained in of fact the evidence and as follows: summarized Surprize that the
1. knew YGV had been on discovered adjoining properties dip pene- and on the vein would Surprize trate its claim. further knew that Sunshine Finding fact claimed extralateral to that vein. No. 44. Surprize property on the
2. entered the Silver deposits 3,100-foot were in 1950 after commercial ore level adjoining through 3,100- 3,700-foot found claims developments adjoining and Metro- levels. Sun-Con widely politan newspapers. publicized in local claims were Findings 33. 54; of fact Nos. exhibit No. developed From the YGV 3. 1950 until Surprize 3,400-, 3,100-, on the
within the boundaries Finding rich ore. 3,700-foot and extracted silver levels of fact No. 47. secretary February 1953,
4. In and a director Sil- secretary ver a letter a former and attor- wrote to ney that a Matthews had called and him he Mr. informed Sparling had hired look near the a Mr. to at some claims Surprize group Sparling that the and that told Matthews partly Surprize group he within and that YGV could be being underground felt mineral removed from work- ings kept being fact was silent. Mr. Matthews this urged investigation. Mr. an This letter was forwarded McCarty, president Vance who was of Silver Seattle, investiga- Surprize. Finding of fact 47. There was no No. Finding tion. fact No. 53. report accompanying maps annual
5. The Sunshine’s through beginning in 1950and 1960showed its stockholders Copies maps entry Surprize group. these copies into and other were were made mine visitors available exchanges Spokane, and to in New York sent to stock people. Finding of fact No. 48. other interested attorney Wallace, Hull, 6. In H. J. Sunshine’s stating president, en that he wrote a letter Sunshine’s McCarty, Surprize, on the a director countered A. V. *20 McCarty informed him “Sunshine and that in Wallace street going beating out of ore and that he was him his been had maybe they him it think it is theirs but Well, . . after . years going I can I am 87 old but after them. and I isn’t, am turning big fight over to a . . are . We them. still Finding No. fact they go after Sunshine.” will outfit 49. inception action of this the 1946 until
7. From suspicious highly Surprize that were officers of Silver exploratory into might entries have made Sunshine They admitted Surprize group to them. unknown at levels president executive having for the distrust to extreme question never was vice-president of Sunshine. any or to whether squarely put officials of Sunshine Surprize property or was into had crossed not Sunshine Surprize request doing ever there, nor did work Silver Surprize system explore within Sunshine YGV engineer Surprize property. never had Further, Silver workings inspect underground to deter- Sunshine group. Surprize doing in the area mine what it was Findings 50,54. fact Nos. inception action, of this 1946 until
8. From single Surprize corporate not include a do minutes Silver Surprize YGV, nor did the directors reference regarding possibilities of their stockholders ever write During Surprize property. developing the YGV McCarty, president Surprize, received informa- Vance operating was stockbroker that Sunshine tion from his map Surprize from the Uni- boundaries and saw within confirming versity No effort of Mines it. of Idaho School fact. determine the truth this time to was made McCarty explained Finding that at fact No. 51. explo- get attempting to do some he was time publicity give ratory some work that would exploratory offering. public proposed work This to assist a did not involve YGV. opinion, 50-page fore- memorandum
In the court’s expressly going for its stated to be basis facts were Findings inquiry finding notice.6 of actual ultimate opinion 6The memorandum states: be it in some communication is clear that there was “The evidence merely those concerned with rumor statements the form of direct infringing upon Surprize’s allegedly min- Surprize, respect rights. to that is as follows. The evidence with eral *21 Surprize effect, fact Nos. 59. In the court held that ef- fectively right conceded Sunshine’s extralateral to the YGV. Finding of fact No. 53. question
The before this court is con- whether the acts findings higher quality tained in the of of fact are convey required knowledge notice or ad- Sunshine’s possession verse sufficient to constitute ouster of its coten- Surprize, ant, Silver as a matter of law. think not. We findings (1) It is from evident these that: gave Surprize never actual notice Silver it entered Surprize group and extracted ore from the YGV within the rights; (2) under its claimed reservation extralateral publicity While there was considerable of ore discoveries adjoining publicity on the claims, YGV there was no entry, development, Sunshine’s and from the removal of ore Surprize (3) group; YGV the While the officers of Silver Surprize suspicious might removing were that Sunshine be hearsay Sparling ore as evidenced statement Mr. McCarty,7 findings and the remark of Mr. do not reveal suspicions upon any open, that those were based notorious unequivocal occurring Surprize act group; (4) maps attached annual to Sunshine’s report do not indicate the removal valuable ore within Surprize group or act Sunshine inconsistent with cotenancy relationship parties. between or Notice knowledge may possession of Sunshine’s adverse not be imputed Surprize upon suspicion hearsay to Silver based opinion open, notorious, that does have its source in foregoing paragraphs through “The [summarized knowledge leads me to believe that above] had actual entry working Surprize boundaries, Sunshine’s into and within knowledge investigate such lead fact would it to believe or into that many years prior 1959, and thus the statute of limitations was not Surprize’s tolled and has run on cause of action.” arguendo 7We assume from letter Mr. Hull Sunshine’s containing properly objection president, remark, admitted over Surprize. noted, however, be had nO' It should Hull Mr. McCarty of the conversation with sole recollection Mr. evi dence of the conversation is the letter. Fritch v. unequivocal, adverse acts. See and unmistakable McKnight supra. supra; v. Basilides, Fritch, opinion summary, nor the neither memorandum open, and un- findings notorious, contain acts of such conveyed notice equivocal have actual that would character inquiry Surprize upon put notice of or that have would activity to constitute ouster. sufficient Sunshine’s adverse maps in *22 offices contends that the Sunshine’s Sunshine upon put Surprize of to notice Sunshine’s were sufficient spe- entry property. Surprize However, court, into the trial cifically opinion outlining in the evidence its memorandum finding upon ultimate it of actual in- which based its any maps. quiry notice, to to failed include reference such (See 6.) to John Ed- footnote Neither did the court refer McCarty, gar’s A. conversations with V. deceased maps reaching regarding in trial, time its ultimate finding. maps This is since the were understandable testimony Edgar vague and the as to Mr. nonspecific dates and the court sim- Instead, to content. ply found that: McCarty
Neither Yankee Girl Vein to nor Vance ever mentioned Gerald including John officials, Sunshine Edgar they squarely put . nor . . did . . . ever question to as to officials Mine Surprize prop- whether or not Sunshine had into crossed erty doing any or was work there. Finding Edgar’s of fact If to the Mc No. 50. statements Cartys maps conveyed or the notice of his office actual entry Surprize property, contends, then into as the dissent why simply Instead, did not the court so find? the court entry Surprize found that whether had fact failed ask place. finding taken contention This contradicts Sunshine’s finding entry notice of that the trial court based its of actual maps. upon fact that this Therefore, aside from the findings mentioned in the or memorandum evidence is not upon rely opinion, apparent did not it is the trial court support finding "to its ultimate of notice.
Nevertheless, Sur- Sunshine contends that Silver prize inquiry have should made as whether Sunshine developing had entered and was the YGV within the Sur- prize group urged and, if not, should have Sunshine to do argued finding so. It is the court’s that the vein referred to agreement penetrate the recitals the 1946 would Surprize group imposed upon duty Surprize Silver specific inquiry concerning disagree. the YGV.8 We Sun- proving posses- shine has the burden of ouster adverse require Surprize explain sion. To Silver its failure to inquire, prior proof by open, notorious, absent Sunshine of possession unequivocal acts of adverse within the Sur- prize group giving inquiry rise to notice, would relieve its burden and the burden to shift Silver Sur- prize. Consequently, we hold that Sunshine has failed higher pos- proving sustain its burden of ouster session as a matter of law. Is
IV. Action Barred Laches and Statutes Limitation? properly
Sunshine contends trial court found that the general reason for a lack of evidence on the issue ouster many passage is due to of time and the death of *23 original participants. delay The trial court this to be found Surprize’s the failure to this result Silver commence operates and, therefore, earlier action concluded that laches present agree. the as a bar to action.9We cannot fact, Surprize 8In the minutes after 1953 annual reflect general inquiries plans development of Sunshine as to its for the within Surprize group agreement. under the 1946 The minutes that show negative. responses separate were No. 248. Two Sunshine’s Exhibit inquiries by Surprize letter stockholders of Silver in 1956 and 1960 regarding activity agreement by response the 1946 evoked a under grade no commercial ore had been discovered the Sunshine that within plans Surprize group development. and there immediate for were no 180, 181. Exhibit Nos. by (1924), upon Brown, 291 relied 9Teeter v. Wash. P. distinguishable. support conclusion, case, In that the Sunshine to this activity upon the of the adverse claimant would have been evident apparent only investigation slightest it that the because was it was mining apparent operations Here, it is not that were in the area. mine activity Surprize group. occurring All of Sunshine’s in the in the depth 2,700 group 3,700 Surprize at a to occurred between feet. to estab- rested Sunshine upon the burden times, all At the the within from removed YGV the ore right lish to of extralateral rights. reservation under its group Surprize it group the Surprize entered Sunshine When Even not been located. had that of the YGV apex knew within was it YGV though believed it, must to it under contract Sunshine claims owned by were rights that its extralateral be with charged knowledge also be At must point, Sunshine questionable.10 extralat- if not establish notice that it could with charged YGV, its removal ore was cov- eral then rights to by agreement required accounting ered the 1946 ore removed. Silver Surprize ore to remove the under
If
intended
the burden
by
possession,
a
of ouster
had
theory
adversity by
open, notorious,
some
un
establishing
that by
unmistakable
act
its nature would sur
equivocal,
no
vive the
of its
There is
finding
life
participants.
only
activity
through
access to the
located on the
was
the Jewell Shaft
varying depths
Sunshine claim from which numerous
tunnels
radiate
great
claims,
over
one of
is the
distances
numerous
which
group.
activity
readily
Surprize group
Thus,
Sunshine’s
single mining
apparent
operation
in Teeter v.
as contrasted
supra.
Brown,
agreement
recognized
10This
in its
fact was
with Sunshine
Consolidated:
Disagreement
parties
has
arisen
rela-
between
heretofore
westerly
rights
tion to
from the
limit
extralateral
derived
easterly
claims
limit of extralateral
owned
rights
difficult,
from
Sun Con.
be
derived
claims owned
It will
consuming
disagree-
expensive
attempt
time
resolve
controlling
physical
ment
determination
of the
facts and
disagreement
parties mutually
compromise
and fix and
desire to
respective past
in ore occurrences
determine
their
and future
line of said
in said Yankee
zone south
south side
Girl Vein
Hilda Claim.
No.
Exhibit
3.
*24
newspaper
publicity,
A
review
exhibit No.
contains no
agreement.
to
reference
this
observed
late
It should be
that as
as 1956 Sunshine believed that
the
apex
(exhibit
the Sunshine
325);
was within
Consolidated
claim
No.
whereas,
attempted
in
action
this
Sunshine
to establish the
at the
upon
Yankee Girl tunnel
located
its claim.
attempts to
Instead,
ever occurred.
act
that such
theory
Surprize
proof
of
on the
that Silver
burden
shift its
brought
it had,
sooner and if
have
its action
Sun-
should
produced
unequivocal
of
acts
have
could
the
shine
reasoning
proving
this line of
is not
ouster. While
without
appeal,
not
its
fact remains that
has
sustained
the
giving
proving
unequivocal
rise to notice
of
the
acts
burden
activity or the date on which such notice
of
Surprize.
imputed
Since Sunshine has
be
to Silver
could
no
in
there is
date after which
burden,
this
failed
brought
no
be
have
its action and
must
held to
commence,
running
prereq-
is a
to
laches. Ouster
date
Fritch,
of laches. Fritch v.
the existence
Wn.2d
uisite to
Similarly,
(1959).
in the absence of
496, 505-06,
Conclusion disposition raised, issues we are In our mindful upon prove strong placed burden cotenant to ouster relationship fellow cotenant due nature his relationship them. nature of this is between The summa- § 173, 257-59, in 3 Am. Jur. rized 2d based writers authority: upon case extensive principle general is there is a relation of trust having equal right common, tenants in each between entry possession. every and Thus cotenant has the occupy right property to enter into and the common and every doing part provided thereof, he so does deny his fellow otherwise exclude tenants them they right to are cotenants; which entitled as some safely part, may they, something assume, their until they notice, must take and which indi- occurs of which cates possession contrary, that the taken held possession is, law, held as a cotenant and
him is not adverse cotenants, them. This all upon supposition entry proposition is that the based common, nomine as either eo tenant is made any particular silently regard made, avowal without
31 it is adverse. notice to a cotenant that it, to the absence of facts or without pos- showing in that a sole cotenant rights possession opposition to the in holds session such presumed occupancy to be will be cotenants, of his that his cotenancy recog- being in common, of a tenant the presumption is the common, nized. In case of tenants in possession in common to, is not adverse but the originating in other Possession coten- with, the cotenants. ancy presumably permissive, the Indeed, is not hostile. every presumption strongly against is claim a coten- an the circumstance of ant which he seeks to convert apparently possession advantage over individual into presumption posses- that a cotenant his associates. adversely not hold to his cotenants but in com- sion does cogent proof strong, required to and is mon with them is possession legally ad- it. continues until a overcome It possessor’s To ter- verse to the cotenants is established. presumption act, the there some hostile minate must be part possessor or the of the conduct, declaration on amounting repudiation his in to a coteuants’ the himself, an assertion of exclusive title which knowledge notice. cotenants have or generally “[a] 11doubts the Further, it stated as to possession against to be the character the are resolved possession.” Annot., claim of ouster 82 A.L.R.2d § 75, Adverse 294 With Possession—Cotenants accepted foregoing principles mind, have we upon by making trial court find- evidence relied ings, its hold is of but are constrained to that this evidence carry quality stronger proving insufficient burden of Sego, 736, 739, a In re 82 P.2d ouster of cotenant. Wn.2d finding (1973). Therefore, ultimate the trial court’s inquiry notice fail conclu- notice must and with sion of ouster. holding, judgment of the court
In view of our trial Surprize contends that must be reversed. Silver not be for reversal, of a matter should remanded event completion accounting because has ren- interrogatories. accounting in answers to We dered that pointed disagree. During trial, out interrog- in its answers that an had occurred court error against Sunshine, it event it held and that atories accounting. reopen It is that issue correct desired requires proper of discretion a exercise our view that accounting a determi- remand consideration precise from Sun- due amount nation agreement. shine under the Reversed and remanded.
Munson, J., concurs. respectfully disagree (dissenting)—I C.J.
McInturff,
concerning
majority,
its conclusion
the
with the
not with
that
has
but with its conclusion
“Sunshine
issue,
by
proving
its
ouster
adverse
failed
sustain
burden
mine.)
possession
(Italics
a matter
law.”
The crux of
as
majority’s reasoning
that there was no
the
is
substantial
by
open,
unequivocal
notorious,
acts
Sun-
evidence of
upon
that
trial court could conclude
Sur-
shine
which the
entry
prize
knowledge
into
Sur-
actual
Sunshine’s
had
prize’s property
knowledge
inquiry
or
or
notice as
such
investigate
disagree.
prior to 1959.1
would lead
finding
stronger proof
It is
needed for a
clear that
is
possession
between
adverse
between cotenants
than
strangers.11
circum
the actions and total
However, whether
question
open, notorious,
stances
and a
are
hostile
by
applicable.12
trier
fact is still
decided
fact to be
the
locality,
of the
The decision is made within the context
property, and the use made of
nature, and character of the
Inc.,
Farms,
The
in Hill v.
75
said,
it.13
court
L.W. Weidert
(1969):
871,874, 454
Wn.2d
220
P.2d
by
respondents
not
are entitled
the land
Whether or
to
of
possession
question
fact, and
of adverse
a
as
claim
is
11McKnight
(1943);
Basilides,
see
143 P.2d
also
v.
19 Wn.2d
307
aspects
Annot., 82
extensive annotation on all
A.L.R.2d 5-306 for an
especially
possession,
section
at 305 which states:
“The
adverse
possessor’s
question
had notice of
adverse
of whether
cotenant
ordinarily
jury
possession
other
character of
one for
trier
his
of the facts.”
Matthews,
App. 233,
(1973);
12Hunt
P.2d 819
Northwest
v.
Wn.
(1942).
Co.,
75, 123
Western Fuel
P.2d 771
Cities Gas Co. v.
Wn.2d
Frankland,
for he commenced that Bechtel reveals working promoted engineer, for was Sunshine in 1935as an general through engineer, superintendent, su- chief mine manager, perintendent operations, general Kellogg of the vice-president, eventually he In 1946 became director. superintendent, general superintendent, mine around general manager. and then McCarty Edgar
Mr.
A.
them
stated that Mr.
V.
visited
living
McCarty
times
on
two to three
week when Mr.
was
a
claims.
often
in to see Mr. Leisk
He
came
(superintendent
mine),
not
when Mr. Leisk was
but
Edgar.
Edgar
there,
there,
If Mr.
he talked to Mr.
wasn’t
McCarty
stop
engineering
with
in the
and visit
would
office
Thomp
(1975);
Klinker,
509, 514,
268
85
537 P.2d
14State v.
Wn.2d
(1973);
Thompson,
827
Northwest
son v.
82 Wn.2d
510 P.2d
(1968);
Collectors,
585, 595,
Enders,
200
Inc.
446 P.2d
v.
Wn.2d
74
Lundgren
Kieren,
(1964);
McDaniel v.
v.
393 P.2d
Wn.2d
McDaniel,
App. 194, 198,
Do have recollections specific you mining conversation about the fact that were Surprize property? in the YGV within the Answer: Again superintendent specific particular not in sense of a as date but occupied ground I floor office on the what was then the building southeast corner of building office at the Sunshine Mine . . . That we always longitudinal had a of the section Sunshine Mine at the scale of 100 feet on to the inch the wall and McCarty time Mr. came to see me I reviewed pointing map out on the wall what it was we were doing Surprize. always within the And his concern exploration program [other YGV]. was than He doing showed little on the interest what we were pointed only by him me, but, YGV. It out to departments . . . I assume other well. prior
This occurred to 1956. testimony, McCarty From it is clear that when Mr. this always longitudinal map came to mine there was the mine at a scale of 100 feet to the inch on the wall showing doing Surprize.” “what we were within . . . exploration activity programs His concern was for other say Edgar than Mr. on to the YGV. went “he showed little pointed doing in what we on the It interest were YGV. was only by to him not me, out . . .” Additionally, McCarty’s portions deposition of Vance published McCarty (at page 851),15 the record stated 15“Q they you mining As knew that were 3400-level Metropolitan area? mining Well, they “A I were on this Yankee Girl vein knew been hut I didn’t know what level I had somehow or another but they had been down to the 3700-level. informed “Q This was about 1957? *28 “A Yes. arbitrary “Q go date, 1952, say, I take an And back to will let’s they you generally time, familiar that in that era of were mining were in that area? yes. area, In that “A “Q you intersected the Silver Sur- that the same vein And knew with Silver intersected the YGV he knew essence that that knowledge; it was common that Surprize property; Sunshine fact; and that made them aware Sunshine was YGV. working claim extralateral Sunshine’s
Further McCarty’s answers is found Vance the YGV father that his stated McCarty court.16 Mr. by the questions Surprize property? prize easterly property the Silver at the limits of “A Yes. intercept you did Yankee vein “Q And knew that Girl Surprize property? yes. “A knowledge? “Q It was common knowledge by—I “A made us aware Common mean Sunshine
that. That it would. any knowledge now, right, event? “Q All it was common “A Yes. gen- knowledge you right, that was “Q All mentioned the common erally working respect that was available to the fact vein, Yankee a well-known it Girl vein. The Yankee Girl vein is not? Right. “A generally? “Q Been lot of discussion generally Well, “A there has been. “Q In the area it? about Newspaper “A talk on it. productive vein, “Q it is that correct? And is a Telling production “A their forth. so Yes. your property? “Q You knew abutted “A Yes. you degrees generally have “Q Known that in the various you? previously on, described here from 1947 to 1950 haven’t “A Yes.” through page facts, line 21 states: line 16Statement you negotiations “Q Were ever with ownership discussions of the Yankee Girl vein? with them as to dip you say they they right, it, You contended owned you you you people it, that. That felt claimed never conceded your anything within owned the Yankee within the limits Girl
property. you in the discussions them about that? Were ever with during negotiating going period “A Not when agreement. subsequently. But I mean “Q *29 many “you on Leisk claim the occasions told Mr. that can you rights prove ore but he it and extralateral to that said you conclusively your you prove if can it take ore, it is it all.”
Though opinion the trial court in its memorandum ex- pressed testimony by McCarty disbelief of Vance as to cer- testimony points, perhaps general, tain and this consti- McCarty, against Mr. an interests of tutes admission giving greater it credence. Surprize knew work
There is substantial that being was done on the within the Sur- Sunshine YGV claiming rights; prize extralateral claim; that Sunshine was Surprize acquiescing in contention. and was that that rightly Surprize contends that was within Sur- Sunshine presump- prize’s a this leads to a cotenant; claims as that belong any to both tion that ore would taken therefrom sub- contention cannot stand when there is cotenants. This indicating maps Surprize seen stantial evidence that had mining Surprize, been told that within had YGV Surprize property, mining was within Sunshine YGV accounting under the 1946 and that no was ever made agreement extralateral claimed because Sunshine’s rights. taking place
The fact that this was 3,000 over feet under ground does make the noto- acts less open, unequivocal (1) McCarty rious, told when was Edgar mining at least Mr. that Sunshine was the YGV Surprize additionally maps within and indicated which (2) true; showed this fact to be there free access was Surprize personnel to the mine and never a refusal to Possibly inspection. an if there would be no notice persons mining involved unfamiliar were with and its ways; McCarty but, A. V. and other officers of my possibly wasn’t, “A I but I was after that with father and two, up director or argued this would come and would be discussed and many My told Mr. Leisk’s office. father on occasions Mr. you the—you that, says, can the extralateral Leisk he claim claim conclusively rights you prove you if he it and ore but said prove your ore, you take it it is it all.” mining Further, substan- were not novices business. McCarty the extralat- tial evidence indicates conceded explo- only in other eral but interested YGV was Surprize property. rations within the
Consequently, evi- I would hold there substantial open, unequivocal notorious, acts dence of (the in- in this from which the trier trial court fact. stance) properly ouster could conclude there of Sur- prize by possession. evidence, This substantial *30 light find- when considered in of voluminous additional ings fact, of it clear that trial court had more makes by ample of ouster than evidence its determination possession Surprize. cotenant, of its appears applicable The doctrine of to be laches also against Surprize. The of laches elements are:
(1) knowledge
opportunity
to discover on
reasonable
part
potential plaintiff
of a
he has a cause
that
by
against
(2)
delay
action
an
defendant;
unreasonable
plaintiff
(3)
commencing
action;
in
that cause of
damage
delay.[17]
resulting
to defendant
from the unreasonable
(1)
considering
In
elements,
these
is substantial evi-
there
McCarty
knowledge
dence that A.
had
of Sunshine’s
V.
prior
Surprize
1956,
fact,
work in the
within
to
he
YGV
bring
against
threatened to
action
defendants
that
at
(2)
(3)
time;
1965;
was
commenced until
action
opin-
Judge
in his
the statement
Williams
memorandum
by delay:
prejudice
parties
ion states well the
present
appears
In
is
case it
that the laches doctrine
applicable
facts
to
there were sufficient
the extent that
present
notice or
be
which amounted to
would
sufficient
put
indepen-
Surprize
inquiry
to
on
at
conduct
to
least
being
dent
to
were
research
determine whether its
apparently
This
violated
the defendant.
any
if in
failed
do and
fact it
commenced
sup-
inquiry
through
officials, evidence
was made
lacking.
port
uted
attrib-
lack
this evidence is
thereof is
principal parties
primarily
were
fact
mining
during
years
alleged
involved
scene
Bremerton,
witnesses, 349
3 to weeks
exhibits, lasted
say
neces-
trial court
technical in nature. I cannot
that the
sarily
listing
giving
to notice
rise
intended its
listing, particularly
del-
of this
to be an
in view
exclusive
injustice
uge
testimony
do an
exhibits. It would
say
guess
he did not also
of fact and
second
rely upon
the trier
testimony, including
dis-
cited in this
other
findings.
In re
sent,
The court
but not detailed
(1952),
P.2d 540
Mikelson,
Estate
41 Wn.2d
stated
pages
required to in-
“[The
court]
is not
99-100:
trial
only
evidentiary
findings,
need
find
clude
in its
but
facts
The ultimate
the ultimate
on the material issues.”18
facts
*31
inquiry
fact
is
of actual or
notice
at issue here
the existence
adversely.
notice to
of intent to hold
The court found such
finding
upon conflicting evidence
have existed. This
was
great weight.19
to
and is entitled
(1953),
Eickerman,
165,
18Eickerman v.
42
253
962
states
Wn.2d
P.2d
page
at
169:
picture clearer,
in our
“To make the
have included
statement
we
findings
the trial court declined
make. This does
the case
some
any duty
specific
imply
them as
not
the court
under
to make
every undisputed
findings.
required to include
bit
The trial court is not
may
testimony
findings
(though undisputed,
it
be
of fact
its
every
testimony,
required
believed),
conceded
nor
to include
bit
bearing upon
may
may
We have
not have
decision.
which
required
recently
frequently
trial
is not
said that
court
only
evidentiary
findings,
need
find the ultimate
facts in its
but
include
Wagner
App.
upon
Wagner, 1
material
also
v.
Wn.
facts
issues.” See
(1969).
330-31,
328,
rule the trial having than is the arrive at the truth a better position to the bene- are entitled court. appellate respondents therefrom fit of inference all evidence and reasonable court. trial of fact entered support the findings court The trial presented. Two different theories were After an examina- other. rejected one and accepted pre- record, tion of cannot say we ponderates findings. against
I would affirm Court. Superior Petitions for denied 1976. rehearing May Appealed Supreme Court May 1976.
Review granted by Supreme Court 27,1976. July 1560-2. Division Two. March
[No. 1976.] Jack D. Kennedy, Respondent, Jr., v. E. Melvin Monroe,
et al, Appellants.