141 P. 847 | Ariz. | 1914
This action was commenced by the appellant to recover $20,000 damages for the conversion of 2,000 tons of ore alleged to have been the property of the plaintiff. It is alleged that the ore had been mined and severed from certain mines, and was placed upon the surface of the ground adjacent to and in the workings in and upon the mines described, known as the Omega group of mines. The defendant answered, denying generally the allegations of the complaint except the first paragraph, setting forth defendant’s corporate character, and answered specially, setting up matters in the way of estoppel upon the grounds: That prior to March 14, 1904, plaintiff held in his name in trust the Omega group of mines for and as the property of the firm of L. Zeckendorf & Co. That plaintiff was a member of such firm. That the other member, L. Zeckendorf, brought suit against plaintiff to dissolve the firm, and on said March 14, 1904, receivers were appointed to take and hold all the property of the firm, and the receivers took possession of such property. That pursuant to an order of the court the plaintiff conveyed to the receivers the Omega group of mines and all the metals, all gold and silver bearing quartz, rock and earth therein. The receiver conveyed to plaintiff, Albert Steinfeld, by bill of sale certain personal property of the said firm. That public sale was made of the Omega group of
The plaintiff relies upon adverse possession of the ore on the dump for two years for his title thereto. In so doing, he necessarily contends that the ore on the dump is personal property, otherwise his deed to the receivers of L. Zeckendorf and Company under date of May 5, 1904, would necessarily carry the title to the ore in question and work an estoppel to claim adversely to the deed. The defendant controverts the claim of plaintiff as to the character of the property, and contends that the ore on the dump is real estate, and its title passed by the deed conveying the mines. If defendant succeeded in maintaining this contention, clearly plaintiff failed to establish his title as pleaded. Plaintiff makes no pretense that he severed the ore from the dump while the mine was in his possession. The evidence is conclusive, or at least not controverted, to the effect that plaintiff did nothing in the way of changing the relation of the ore to the mines. The plaintiff testified that:
“The claim of L. Zeckendorf & Co. to be the owners of the ores on the dumps and in the mines was continuous from the Hose contract (made about 15 years prior to the date when
The witness positively asserted that the ore was claimed by him for L. Zeckendorf & Co. by reason of the sheriff’s deed. The sheriff put him in possession of the property at the time the deed was delivered. Witness does not remember whether he made any direct claim to the firm of L. Zeckendorf & Co., to Louis Zeckendorf, or the defendant, Omega Copper Company, as to the ownership of the ores until this suit was filed. Prom this evidence plaintiff’s claim of title by adverse possession arose, if at all, after the conveyance of Steinfeld and Zeckendorf to the receivers of L. Zeckendorf & Co. Up to that date, May 6, 1904, the possession of the ore on the dump had passed at each transfer with the mines. Plaintiff so received the possession of the ores for L. Zeckendorf & Co., and for that firm held the possession until the members of the firm were ordered by the court to, and they did, convey to the receivers “all the real estate and mines or mining claims owned by said firm, or by either member as the property of the firm.”
Prom the plaintiff’s evidence, as testified by plaintiff, when he made the conveyance to the receivers of L. Zeckendorf & Co., he did not intend to convey'the ores on the dumps with the mines. He made no reservation in the deed of such ores, but the reservation was in his mind, a mental reservation. If it is conceded that a grantor may effectively reserve rights in property by such mental reservation alone, and such reserved property does not pass by his deed, then plaintiff con
Only one witness testified relative to these matters. This witness was Fred G. Hughes. The “Old” Omega Copper Company owned the mines, and Hughes was its superintendent. Under Hughes’ supervision the ore was extracted. He testified:
“At the time I took that ore out we had no intention of doing anything with it. . . . There was simply—naturally in working a mine, you have got to get rid of your waste or ores that you are using, and it was just put out on the dump to give us a chance to develop and get out better ore to send to the smelter. In other words, I moved it out there to get a chance to get out our better ore to send to the smelter. At the time we took that ore out and put it on the dump, it at that time had no value.”
This evidence is of such a substantial nature that a jury would be justified in drawing the natural inference therefrom that the owner’s purpose and intention in extracting the ore from the ground and placing it on the dump was not to sever the ore from the realty, but to remove a part of the realty from the workings underground to the surface, then such removal had no effect to change the character of the ore moved. It remains realty. No one has ever contended that because the owner of realty removes a portion of earth from one part
The question of the character of the ore on the dump was fairly submitted to the jury for determination in this case. The verdict of the jury was returned for the defendant. The verdict is supported by the evidence upon the theory that the ore on the dump is a part and parcel of the mines. On this theory the verdict is responsive to the issues made and tried. Upon such theory no error appears from the record, and no error is assigned by appellant. The error assigned has reference solely to an issue in its nature collateral to the vital issue of the use, and depends solely upon the jury finding in their deliberations that the ore on the dump in question was not realty, but was personalty. Then the question would arise for determination, notwithstanding the ore was personal property, whether the ore as personal property passed by the conveyance of the mines by reason of a well-recognized and prevailing custom among mining men. Upon this theory of the case the errors are alleged to have been committed. In the first place there is no evidence in the record that would justify the jury in finding that the ore was personal property. The plaintiff makes it clear that he secretly intended it should be so considered while the property belonged to L. Zeckendorf & Co., but that is not evidence of the fact that it is personal property. This amounted only to a conclusion. Before real property can become personal property something more is required to be done toward its severance than the operation of the mind unexpressed to others. Such was the only severance here contended for. Plaintiff failed wholly to support his title to the property. He failed to produce legal evidence supporting the alleged personal property character of the ores on the dump. He also failed to produce evidence supporting his alleged claim of title by adverse possession, and the evidence produced tends to show that at no time did he assert title adverse to the title of L. Zeckendorf & Co., but the evidence tends to show that he held title in subordination to the title of L. Zeckendorf & Co. up to the date of the conveyance to the receivers of that firm. "When plaintiff began tu assert .title adverse to the title of the receivers is not shown. If the receivers did not take title to the ore on the dumps by reason
Under this state of the proof, conceding that the ore on the dump was personal property, plaintiff could not recover, because he has failed to establish the title pleaded by him. Such being the case, the question of the existence of a custom for the ore on the dump to follow the conveyance of the mines becomes wholly immaterial to a disposition of the case by the jury. The argument of the law applicable to custom under the circumstances disclosed by this record becomes an abstract question, having no application to the disposition of the case, and requires no further discussion here.
We find no reversible error in the record. The judgment is affirmed.
FRANKLIN, C. <L, and ROSS, J., concur.