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Miscovich Mining Company v. Tryck, Miscovich and State of Alaska (6/17/94), 875 P 2d 1293
Notice: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring errors to the attention of the Clerk of
the Appellate Courts, 303 K Street,
Anchorage, AK 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
HOWARD P. MISCOVICH, and ) Supreme Court No. S-5503
MISCOVICH MINING COMPANY )
) Superior Court
Appellants, ) No. 4FA-89-828 CI
v. ) O P I N I O N
KEITH E. TRYCK, ANDREW ) [No. 4095 - June 17, 1994]
MISCOVICH and STATE OF ALASKA,)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks
Mary E. Greene, Judge.
Appearances: Richard R. Cole,
Fairbanks, for Appellants. Dan K. Coffey and
Eric R. Cossman, Law Offices of Dan K.
Coffey, Anchorage, for Appellee Tryck.
Charles D. Silvey, Staley, DeLisio & Cook,
Fairbanks, for Appellee Miscovich.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton, Justices, and
Bryner, Justice, pro tem.*
BRYNER, Justice, pro tem.
This case arises from a dispute concerning the
ownership of two distinct clusters of mining claims located on
Poorman Creek, denominated the Upper and Lower Poorman claims.
Keith Tryck filed a superior court action to quiet title to the
claims. The action was disputed by Howard Miscovich, Andrew
Miscovich, and Miscovich Brothers, a mining partnership. The
superior court awarded Tryck exclusive title to the Upper Poorman
claims and a one-half interest in the Lower Poorman claims. The
court divided the remaining half interest in the Lower Poorman
claims between Howard Miscovich and Andrew Miscovich, awarding
three-quarters (or three-eighths of the total Lower Poorman
claims) to Howard and one-quarter (or one-eighth of the total) to
Howard Miscovich appeals, challenging the awards to
both Tryck and Andrew Miscovich. Howard Miscovich also
challenges the superior court's award of certain costs and
attorney's fees to Tryck. We affirm the superior court's rulings
as to Tryck, but reverse the court's decision awarding partial
title to Howard Miscovich and Andrew Miscovich, rather than to
the Miscovich Brothers partnership.
I. FACTUAL AND PROCEDURAL BACKGROUND
Jack and Virginia Shropshire (Shropshire) began mining
gold from the Upper and Lower Poorman claims in the 1930's. In
the early 1940's, Shropshire located and staked the claims in
accordance with federal mining laws. Shropshire relocated and re-
recorded the claims in 1946.
On August 13, 1954, Shropshire deeded an undivided one-
half interest in the Lower Poorman claims to Miscovich Brothers,
a partnership comprised of brothers George, John, Howard, and
Andrew Miscovich. In exchange, Miscovich Brothers agreed to
conduct the annual assessment work on the claims.
The following year, on May 1, 1955, Shropshire entered
into a lease with Miscovich Brothers for the Upper Poorman
claims. The lease was to remain in effect "until said claims are
worked out unless sooner forfeited through violation of any
covenant hereinafter contained to be performed by said Lessees
[Miscovich Brothers]." The covenants of the lease required,
among other things, that the Miscovich Brothers mine "in a
workmanlike manner . . . all ground that can be mined at a
profit"and "perform all the annual assessment work required to
be done under the law, during the term of this lease upon said
Between 1955 and 1958, Miscovich Brothers mined the
claims and filed assessment work notices. Because government
control held gold prices at $35 per ounce, however, the mining
was not economically feasible. Miscovich Brothers ceased mining
the area in the fall of 1958, after having incurred substantial
debt. From 1959 through 1967, the claims lay idle, and no
assessment notices were filed.
In 1968, Howard Miscovich returned to the Poorman Creek
area and resumed filing annual assessment notices on the claims
in the name of Miscovich Brothers. In 1973, brothers John,
George and Andrew Miscovich conveyed to Howard Miscovich all of
the mining equipment on the claims and agreed to permit him to
continue mining the property "for his own account." From that
point on, Howard Miscovich filed annual assessment notices on the
claims in the name of Miscovich Mining, a partnership consisting
of Howard and his wife, Donna Miscovich. He continued filing the
annual notices until the time of trial.
In 1983, two of Howard Miscovich's brothers, George and
John, assigned to Howard their partnership shares in the Lower
Poorman claims. Andrew Miscovich, however, did not convey his
interest to Howard.
Meanwhile, Shropshire had been living outside Alaska.
In 1982, Howard Miscovich was contacted by Resource Associates, a
mining company that was interested in purchasing the Poorman
claims. Miscovich wrote a letter to Shropshire in March 1982
informing him of Resource Associate's interest and requesting
Shropshire's presence in Alaska.1 Shropshire traveled to
Fairbanks the following month and met with Resource Associates.
Although the company proposed a purchase agreement to Shropshire,
the agreement never came to fruition.
In 1986, Keith Tryck, who was writing a book on the
Poorman Mining District, contacted Shropshire. Tryck informed
Shropshire that he had seen no indication of mining activity in
the area and that other miners had told him that Miscovich had
not been mining there for some time. On November 25, 1987,
Shropshire sent a letter to Howard Miscovich, terminating the
lease on the Upper Poorman claims because, as Shropshire
testified, "nothing had been done on the claims for a long time."
On December 14, 1987, Shropshire and Tryck entered into an
agreement whereby Shropshire quitclaimed any interest he had in
the Upper and Lower Poorman claims to Tryck.
Tryck then filed suit to quiet title to the Upper and
Lower Poorman claims. Shortly thereafter, Howard Miscovich
staked state mining claims on the land covered by the Upper and
Lower Poorman claims and filed location notices on the state
On May 13, 1992, the superior court issued a Memorandum
Decision and Order awarding Tryck title to the entire Upper
Poorman claims and half of the Lower Poorman claims. The court
awarded the remaining half-interest in the Lower Poorman claims
to brothers Howard and Andrew Miscovich, dividing the award three-
quarters to Howard and one-quarter to Andrew. The court also
awarded attorney's fees in the amount of $12,800 and costs of
$7,934.52 to Tryck.
Howard Miscovich (Miscovich) appeals the superior
A. Standard of Review
This appeal involves issues of both law and fact. In
reviewing questions of law, this court will "adopt the rule of
law that is most persuasive in light of precedent, reason and
policy." Guin v. Ha, 591 P.2d 1281, 1284, n.6 (Alaska 1979). In
reviewing questions of fact, this court will not set aside a
trial court's findings of fact unless clearly erroneous. Alaska
R. Civ. P. 52. A finding of fact is clearly erroneous when this
Court is left with "a definite and firm conviction on the entire
record that a mistake has been made, although there may be
evidence to support the finding." Mathis v. Meyeres, 574 P.2d
447, 449 (Alaska 1978). In making this determination, this court
must view the evidence in the light most favorable to the
prevailing party below. Id.
B. Challenges to Both the Upper and Lower Poorman Claims
1. Propriety of action to quiet title
Miscovich first contends that Tryck should have been
barred from prevailing on his quiet title claim because he failed
to allege or prove possession.
To prevail in an action to quiet title to real
property, a plaintiff must prove possession of the property;
otherwise the proper cause of action is ejectment. AS 09.45.010;
Welcome v. Jennings, 780 P.2d 1039, 1042 (Alaska 1989); Shope v.
Sims, 658 P.2d 1336, 1339 (Alaska 1983). However, the possession
requirement may be met through a showing of "constructive
possession." Welcome, 780 P.2d at 1043. In Welcome, we held
that the plaintiff's "compliance with statutory requirements . .
. [relating to discovery, location, and recordation of a mining
claim,] is sufficient to establish constructive possession of the
claims and permit him to maintain a quiet title action."
780 P.2d at 1043.
The superior court found that Tryck performed the
required assessment work for 1988 and 1989, filing proof of
compliance with the federal government. The court also found
that Miscovich, acting in his capacity as lessee and co-owner of
the mining claims, had filed the required assessment notices for
the other relevant years, except for the period in between 1958-
68, in which no other person relocated the claims. See Dodge v.
Wilkinson, 664 P.2d 157, 159 n.3 (Alaska 1983) (holding that
where "claims were subject to relocation for a considerable
period of time because no annual assessment work was performed on
the claims, [the] resumption of assessment work . . . cured this
default because it occurred prior to any relocation by another
person."); 2 American Law of Mining 45.09 (2d ed. 1984); 30
U.S.C. 28 (1988). The trial court found this evidence
sufficient to support the conclusion that Tryck and his
predecessor in interest, Shropshire, met the requirements for
constructive possession and that Tryck could therefore maintain
an action to quiet title to the claims. We find no error.
As to both the Upper and Lower Poorman claims,
Miscovich argues that Shropshire's prolonged absence from the
state, combined with his failure to initiate any contact with
Miscovich for over 35 years, constituted abandonment.
Abandonment of mining claims must be established by clear and
convincing evidence. Kile v. Belisle, 759 P.2d 1292, 1296
(Alaska 1988); Dodge, at 159 (Alaska 1988). In Kile, this court
defined abandonment as "the intentional relinquishment of a
mining claim . . . a voluntary act on the part of a claimant
[which] consists of a subjective intent to abandon coupled with
an external and objective act by which that intent is carried
into effect." 759 P.2d at 1295-96; see also 1 American Law of
Mining, 46.01. This court reviews a trial court's
determination as to whether an abandonment has occurred under the
clearly erroneous standard. Kile, 759 P.2d at 1295.
Although Miscovich argues that "Shropshire's utter
inattention to the Poorman claims for roughly half his lifetime,
i.e., 35 years"indicated that Shropshire abandoned the claims,
Miscovich failed to demonstrate to the satisfaction of the trial
court that Shropshire intended to abandon the claims. There is
ample evidence in the record to support the trial court's finding
that Miscovich failed to meet his burden of proving Shropshire's
intent to abandon the claims.
Shropshire's testimony demonstrated that he had never
intended to abandon the claims. When he left Alaska, Shropshire
arranged, through the lease, to have Miscovich Brothers work the
claims and perform the assessment work. Shropshire testified
that, soon after he first left Alaska, he telephoned the
recording office and verified that Miscovich Brothers was, in
fact, doing the required assessment work; thereafter, he believed
that Miscovich had continued to perform the annual assessments.
Although Shropshire acknowledged that he received no royalties
from the claim, he explained that he knew that mining the claims
was not economically feasible during much of the lease period.
According to Shropshire, the Miscovichs never told him that they
were terminating the lease, and, in 1982, John Miscovich
specifically advised him that Howard Miscovich had been working
the claims over the years.
Given this evidence, the trial court's finding was not
Miscovich also advances an argument based on the
Federal Land Policy and Management Act (FLPMA), 43 U.S.C. 1701-
84 (1988). Enacted in 1976, FLPMA required owners of unpatented
federal mining claims to file certain instruments by October 21,
1979, and annually thereafter. Under FLPMA, failure to comply
with the filing requirement constitutes abandonment.2
Miscovich argues that Shropshire lost all right to the
mining claims in 1979 by failing to comply with the filing
requirements of FLPMA. According to Miscovich, Shropshire
therefore had no remaining interest in the claims when he
purported to terminate the Miscovich Brothers lease and to convey
the claims to Tryck. Miscovich thus contends that he acquired
ownership of the claims himself in 1989, when he staked and filed
state location notices on the same land, in his own name, shortly
after Tryck filed the quiet title action.
At trial, Tryck took the position that the assessment
notices Miscovich had filed annually on the claims had
substantially complied with the filing requirements of FLPMA,
thereby preserving the claims. In resolving this issue, the
trial court deferred to the federal Bureau of Land Management
(BLM); the court stated that "[t]his question is one which is
peculiarly within the agency's specialized field." BLM, in
response to an inquiry from Miscovich's attorney, concluded that
the claims had not been abandoned through noncompliance with
FLPMA, stating that, "there is sufficient documentation in the
mining claim recordation files to comply with the filing
requirements of FLPMA."3
Given BLM's expertise regarding this issue, the trial
court could properly rely on the agency's finding of compliance
with FLPMA. BLM's determination appears to be well reasoned,
and Miscovich has advanced no ground for rejecting it. Under the
circumstances, the trial court could properly find that
Shropshire's Upper Poorman claims remained valid after the
enactment of FLPMA.
Furthermore, even if Shropshire had lost the Upper
Poorman claims through noncompliance with FLPMA, Tryck's right to
title would not have been defeated by Miscovich's subsequent
filing of state claims on the same land. As noted in the
treatise, American Law of Mining,
One who has contracted or agreed to
perform annual assessment work on a claim
cannot, by relocating it after his failure to
do the work, acquire any interest adverse to
that of the prior claimant. Courts have
either held his location void, or held him to
be trustee for the benefit of the prior
2 American Law of Mining, 38.03 (citing Soule v. Johnson,
201 P. 834 (Idaho 1921); O'Neill v. Otero, 113 P. 614
(N.M. 1910); Argentine Mining Co. v. Benedict, 55 P. 559
Here, Shropshire leased the Upper Poorman claims to
Miscovich Brothers in May 1955. The lease, by requiring
Miscovich Brothers to "perform all the annual assessment work
required to be done under law, during the term of th[e] lease,"
plainly imposed on Miscovich the duty of compliance with FLPMA
once that statute became effective. Because any loss of interest
Shropshire might have incurred due to noncompliance with FLPMA
would have resulted from Miscovich Brothers' failure to perform
its duties under the lease, Miscovich was barred from acquiring
any interest adverse to Shropshire's on the same claims.
The same conclusion holds for the Lower Poorman claims,
as to which Miscovich occupied the position of co-owner due to
Shropshire's 1954 conveyance of a one-half interest to Miscovich
Brothers. It is settled that "a relocation by one co-owner will
inure to the benefit of all of the co-owners,"and that
"relocation [by a fiduciary] is held void as against the prior
claimant." 2 American Law of Mining, 38.03 -.
Under the circumstances, any title Miscovich obtained
upon relocating state claims on the same land as the original
federal claims would be deemed to be held in constructive trust
for the original claimant, Shropshire, and for Shropshire's
successor in interest, Tryck. 2 American Law of Mining,
C. Challenges to the Upper Poorman Claims
The trial court concluded that Tryck, as successor in
interest to Shropshire, held full title to the Upper Poorman
claims that Shropshire leased to Miscovich Brothers in 1955.
Miscovich challenges this conclusion on two grounds.
1. Breach of the Lease
At trial, Miscovich contended that Shropshire's 1955
lease of the Upper Poorman claims to Miscovich Brothers
terminated by its own terms when mining first became uneconomical
and ceased in 1958. Thus, Shropshire had no valid interest in
the Upper Poorman claims when he purported to terminate the
Miscovich Brothers lease in 1987.
The trial court rejected this argument, finding that
cessation of mining activity in 1958 did not terminate the lease,
that the lease continued in effect until Shropshire notified
Miscovich of its termination in 1987, and that Shropshire's
notice of termination was justified, because Miscovich Brothers
had continuously breached the lease "at least since 1981"by
failing to pay royalties and not mining the claims in a minerlike
Miscovich challenges these findings on appeal. He
bases this challenge on the language of the lease, which provides
that it would remain in effect "until said claims are worked out
unless sooner forfeited through violation of any covenant
hereinafter contained to be performed by [Miscovich Brothers]."
Miscovich argues that, when Miscovich Brothers ceased mining the
Upper Poorman claims in 1958 because the claims were no longer
profitable, the claims were in effect "worked out."
In support of this argument, Miscovich cites United
States Smelting, Refining & Mining Co. v. Wigger, 684 P.2d 850
(Alaska 1984). Miscovich's reliance on Wigger is misplaced. The
lease in Wigger provided that it was to remain in effect "until
all gold and other precious metals and minerals recoverable in
the sole opinion of the Lessee at a profit shall have been
recovered from the demised premises." Id. at 854 (emphasis
added). Thus, the duration of the lease in Wigger expressly
turned on the continued profitability of mining.
By contrast, as the trial court in the present case
correctly recognized, the duration of the Miscovich Brothers
lease hinged on exhaustion of gold from the claims, not on
continued profitability. By its own terms the lease was to
remain in effect -- barring a breach of its covenants -- until
the Upper Poorman claims were "worked out." Although
profitability did play a role in the covenants of the lease, that
role related to Miscovich Brothers' duty to mine the claims
actively, not to the duration of the lease. The lease covenants
included the following: "That [Miscovich Brothers] will mine
said claims in a workmanlike manner in accordance with approved
mining methods and will work all ground that can be mined at a
profit." The effect of this covenant was to exempt Miscovich
Brothers from abiding by the duty of mining in a "workmanlike
manner"during periods when the claims could not "be mined at a
profit." Although making Miscovich Brothers' duty to mine the
claims in a "workmanlike manner"contingent on profitability,
this covenant had no effect on the duration of the lease; indeed,
the provision assured that inactivity due to unprofitability
could not be construed to violate the lease covenants.4
The undisputed evidence at trial established that
Miscovich Brothers ceased mining in 1958 due to economic factors
related to the price of gold, and not due to the claims being
"worked out."5 Under the circumstances, failure to continue
active mining activities did not amount to a breach of the
covenant of workmanlike mining and had no effect on the continued
validity of lease. Cf. Black Star Coal Corp. v. Napier, 199
S.W.2d 449, 452 (Ky. App. 1947); Commercial Coal Mining Co. v.
Big Bend Coal Mining Co., 141 A. 732, 734 (Pa. 1928).
Miscovich next argues that the superior court
incorrectly found that Miscovich Brothers breached the lease
covenants by failing to mine the claims in a workmanlike manner
after 1981. However, testimony at trial established that although
mining the Upper Poorman claims was not economically feasible for
many years due to government control of gold prices, government
restraints were relaxed in 1968 and by 1973 the price of gold was
allowed to float freely on the open market. Testimony indicated
that by 1979, the price of gold had increased fourfold from the
previously fixed price of thirty-five dollars per ounce, and
reached an astounding eight hundred dollars per ounce in the
early 1980's. The increased price of gold made it possible to
mine profitably in the Upper Poorman area once again. The
superior court concluded that "workmanlike miners would have
drilled the site since at least 1981." This factual finding is
supported by the evidence and is not clearly erroneous.
It follows that the trial court correctly determined
that Miscovich Brothers was in breach of the lease covenants
beginning in at least 1981. Because the evidence further
established that this breach continued throughout the remaining
time that Miscovich held the lease, the trial court also properly
determined that Shropshire had the right to terminate the lease
2. Waiver, Estoppel and Laches
Miscovich also argues that, even if the trial court
correctly found that the lease on the Upper Poorman claims
remained valid in 1987 and that Miscovich Brothers' failure to
mine the claims after 1981 amounted to a breach, the court should
have concluded that Shropshire's effort to terminate the lease
was barred by the doctrines of waiver, estoppel and/or laches.
Miscovich maintains that invocation of these doctrines was
justified by Shropshire's failure to take prompt action to
enforce the lease covenants.
Under Alaska law, waiver is generally defined as "the
intentional relinquishment of a known right." Milne v. Anderson,
576 P.2d 109, 112 (Alaska 1978); Arctic Contractors, Inc. v.
State, 564 P.2d 30, 40 (Alaska 1977). Waiver may be accomplished
implicitly if the actor's conduct "evidences an intention to
waive a right, or . . . [if] neglect to insist upon the right
results in prejudice to another party." Milne, 576 P.2d at 112.
For an implied waiver to arise, however, "there must be direct,
unequivocal conduct indicating a purpose to abandon or waive the
legal right[.]" Id. Without knowledge of a right or claim, a
party cannot be said to have waived it. Nat'l Bank of Alaska v.
J. B. L. & K. of Alaska, Inc., 546 P.2d 579, 587 (Alaska 1976).
The issue of whether a waiver occurred involves a question of
fact; a trial court's finding on the issue will be set aside on
review only if clearly erroneous. Fun Products Distributors,
Inc. v. Martens, 559 P.2d 1054, 1058 (Alaska 1977); Alaska R.
Civ. P. 52(a).
The superior court found that Shropshire did not waive
his right to terminate the lease based upon Miscovich Brothers'
breach. The record indicates that Shropshire received
information that Miscovich Brothers was working the mining claims
as late as August 2, 1982, when John Miscovich told him that
Miscovich had been working in Poorman "over the years."
Thereafter, Shropshire had no occasion to learn of Miscovich's
continuing breach until he spoke with Tryck in 1986. Under the
circumstances, the trial court's finding that Shropshire's
inaction did not constitute a waiver was not clearly erroneous.
Similarly, we find no error in the trial court's
refusal to apply the doctrines of estoppel and laches to bar
Shropshire's termination of the lease. Equitable estoppel
"requires the assertion of a position by conduct or word,
reasonable reliance thereon by another party, and resulting
prejudice." Dressel v. Weeks, 779 P.2d 324, 329 (Alaska 1989)
(quoting Jamison v. Consolidated Util., Inc., 576 P.2d 97, 102
(Alaska 1978)). The proponent of equitable estoppel bears the
burden of proving each element. See Dressel, 779 P.2d at 329.
The trial court found that Miscovich failed to meet his
burden of proof as to any of the requisite elements of equitable
estoppel, because Miscovich adduced no evidence of
representations by Shropshire that might have justified
reasonable reliance, no evidence of actual reliance on the part
of Miscovich, and no evidence of resulting prejudice. See
Jamison, 576 P.2d at 102; Arctic Contractors, 564 P.2d at 40.
The record discloses no basis for concluding that these findings
are clearly erroneous, and Miscovich suggests none. We affirm
the superior court's finding that equitable estoppel does not
The equitable defense of laches applies when the trial
court finds unreasonable delay in the plaintiff's assertion of a
claim and resulting prejudice to the defendant. Wolff v. Arctic
Bowl, Inc., 560 P.2d 758, 767 (Alaska 1977); Concerned Citizens
of South Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d
447, 457 (Alaska 1974). Both elements, unreasonable delay and
prejudice, must be established before the defense is invoked.
Wolff, 560 P.2d at 767; Southern Pacific Co. v. Bogert, 250 U.S.
483, 488-89 (1919). "The decision to sustain a defense based on
laches is properly addressed to the discretion of the trial
court, and will not be overturned unless we feel a definite and
firm conviction that a mistake has been committed." Pavlik v.
State, 637 P.2d 1045, 1047 (Alaska 1981).
The superior court found that Miscovich Brothers'
breach occurred around 1981. The record indicates that
Shropshire became aware of the breach in 1985 or 1986 and
promptly terminated the lease in 1987. Tryck brought this action
to quiet title in April 1989. The breach continued throughout
this period, and Miscovich presented no evidence at trial to
establish prejudice resulting from any delay. Under the
circumstances, the record supports the superior court's findings
that there was no lack of diligence or unreasonable delay in
bringing the action, and that Miscovich suffered no prejudice
during the time period 1982 to 1987. These findings are not
In sum, we affirm the trial court's refusal to apply
waiver, estoppel, and laches to bar Shropshire's right to
terminate the lease in 1987 based upon Miscovich Brothers'
breach, and we conclude that the court properly awarded Tryck
sole title to the Upper Poorman claims.
D. Challenges to the Lower Poorman Claims
The trial court found that the half interest Shropshire
retained in the Lower Poorman claims after deeding Miscovich
Brothers an undivided one-half interest in 1954 remained valid
when Shropshire quitclaimed the claims to Tryck in 1987. The
court additionally found that, because brothers John and George
Miscovich conveyed their partnership share of Miscovich Brothers'
interest in the Lower Poorman claims to Howard Miscovich in 1983,
Howard was entitled to three-quarters of Miscovich Brothers' one-
half interest (or three-eighths of the total interest); and
because Andrew Miscovich had retained his original partnership
interest in the claims, the court found that he was entitled to
one-quarter of the Miscovich Brothers' half interest (or one-
eighth of the total).
On appeal, Miscovich disputes the awards to both Tryck
and Andrew Miscovich.
1. Tryck's Interest
It is undisputed that, in 1976, the Lower Poorman
federal claims were technically "lost"by a federal conveyance to
the state of the land on which the claims were located. In
conveying the land to the state, the federal government neglected
to except the Lower Poorman claims. Upon conveyance to the
state, the unexcepted federal mining claims were extinguished,
and the land became open for anyone to stake new mining claims
under state law.
Because the Lower Poorman claims were thus "lost"in
1976, Miscovich maintains that the superior court should not have
awarded Tryck any interest in them. Miscovich further argues
that when he staked and located the claims under state law in
1987, he acquired sole ownership rights in the Lower Poorman
As a co-owner of the claims with Shropshire, however,
Miscovich Brothers -- and Miscovich, as a partner in Miscovich
Brothers -- were barred as a matter of law from using the loss of
the federal claims to gain an advantage over Shropshire. It is
well established that the co-owners of a claim owe a continuing
fiduciary duty to each other regarding the claim, even if the
original claim becomes void:
Co-owners stand in a relation of mutual
trust and confidence to each other. No co-
owner will be permitted to act hostilely
toward another in regard to their common
property, and any distinct title acquired by
one will inure to the benefit of all.
The body of law applicable to co-
owners generally applies with equal force to
co-owners of a mining claim. Therefore, a
relocation by one co-owner will inure to the
benefit of all of the co-owners. . . .
Even when an original location is
void, the would-be co-locators are treated as
fiduciaries so as to place on each an
equitable duty not to act for the benefit of
himself to the detriment of the others.
2 American Law of Mining, 38.03 (emphasis added) (citations
When the claims were lost in the federal conveyance to
the state, Miscovich owed a continuing fiduciary duty to his
brothers and to Shropshire regarding the Lower Poorman claims.
Consequently, as the trial court correctly concluded, Miscovich's
filing of state claims under the name Miscovich Mining in 1987
must be deemed to have been an act taken for the benefit of all
co-owners. The state claims acquired by him inured to the co-
owners of the federal claims, Miscovich Brothers and Shropshire.
The trial court did not err in awarding a one-half share in the
Lower Poorman claims to Tryck.
2. Andrew Miscovich's Interest
Howard Miscovich also appeals the superior court's
award of a one-eighth interest in the Lower Poorman claims to his
brother Andrew based on their partnership interests in Miscovich
Brothers. He claims that his and Andrew's respective interests
in the Miscovich Brothers partnership were not properly before
the court. Thus, he contends that the trial court erred in
dividing his and Andrew's respective interests in the
partnership's one-half share of the Lower Poorman claims.6
Miscovich correctly notes that the trial court may not
adjudicate issues not raised before or during trial and
unsupported by the record. Curran v. Mount, 657 P.2d 389, 392
(Alaska 1982). Miscovich appears to be mistaken, however, in
claiming that the determination of his and Andrew's respective
interests in the Lower Poorman claims was not an issue properly
before the court in the context of Tryck's quiet title action.
An action to quiet title "is not aimed at a particular
instrument, but rather at the pretensions of all individuals
claiming adversely. Inquiry is permitted into the whole title of
the property in question, the purpose being to enable the
plaintiff to quiet his title as against unfounded claims of all
nature." Davis v. Tant, 361 P.2d 763, 765-66 (Alaska 1961).
Nevertheless, the record in this case establishes that
Howard Miscovich's and Andrew Miscovich's interests in the Lower
Poorman claims were held by them as partners in Miscovich
Brothers. The 1954 deed from Shropshire conveyed an undivided
one-half interest in the claims to the Miscovich Brothers
partnership, not to its individual partners. In 1983, brothers
George and John Miscovich conveyed to Howard their partnership
share in the claims, while Andrew Miscovich retained his share.
The trial record, however, is devoid of any evidence supporting
the conclusion that the Miscovich Brothers partnership was
dissolved or that the Lower Poorman claims were withdrawn from
the assets of the partnership.
From the record it appears that, at the time of trial,
Howard and Andrew Miscovich continued to hold their respective
interests in the Lower Poorman claims as partners of Miscovich
Brothers and that title to the undivided one-half interest
conveyed by Shropshire in 1954 remained in Miscovich Brothers.
Under the circumstances, title should properly have issued to
Miscovich Brothers for its one-half interest in the partnership
claims. For this reason, we conclude that the trial court erred
in ordering title issued to Howard and Andrew Miscovich
individually in proportion to their partnership interests in the
E. Attorney's Fees and Costs
Lastly, Howard Miscovich appeals the superior court's
award of $2,300 in aerial photography expenses and $1,900 in
deposition costs, including $535 for copying, to Tryck. However,
Miscovich has failed to designate for the record on appeal the
superior court's decision on costs as well as a number of other
documents relevant to this issue. Under Appellate Rule 210(d),
this court considers nothing but the designated record on appeal.
It is well established that a party's failure to designate
portions of the record that are necessary to allow the
determination of a point on appeal will amount to a waiver or
abandonment of that point. L.E. Spitzer Co. v. Barron, 581 P.2d
213, 218 (Alaska 1978); Fairbanks v. Schaible, 375 P.2d 201, 211
(Alaska 1962); McBride v. State, 368 P.2d 925, 929 (Alaska 1962),
cert. denied, 374 U.S. 811 (1963).
Here, Miscovich relies on CTA Architects v. Active
Erectors & Installers, Inc., 781 P.2d 1364, 1366 (Alaska 1989),
to challenge the trial court's award of fees and costs to Tryck,
particularly the award for aerial photography expenses. The
propriety of the award, however, cannot definitively be resolved
in the absence of those portions of the trial record that
elucidate the basis of the trial court's ruling. Cf. CTA
Architects, 781 P.2d at 1367 (Rabinowitz, J., concurring) ("[I]n
certain cases it will be within the trial court's discretion to
allow full exhibit preparation costs under Civil Rule 79(b)[.]").
Because Miscovich has failed to provide this court with
an adequate record to decide the point, we affirm the superior
court on the issue of attorney's fees and costs.
We AFFIRM the superior court's award of the entire
Upper Poorman claims and a one-half interest in the Lower Poorman
claims to Keith Tryck. We REVERSE the court's determination
awarding a three-eighths share and a one-eighth share in the
Lower Poorman claims to Howard Miscovich and Andrew Miscovich
individually and REMAND for amendment of the judgment consistent
with this opinion. Finally, we AFFIRM the superior court's award
of attorneys fees and costs.
* Sitting by assignment made under article IV, section 16
of the Alaska Constitution.
1 The letter stated:
Dear Jack: Resources [sic] Associates
of Alaska, a mining company, is interested in
leasing all the ground on Lower Poorman Creek
with an option to buy. I would like you to
come up into Poorman as soon as possible to
help me identify all this ground and bring
all your location notices.
2 The FLPMA filing requirements to which Miscovich refers
are found at 43 U.S.C. 1744, which provides, in relevant part:
(a) Filing requirements. The owner of
an unpatented lode or placer mining claim
located prior to October 21, 1976 [the Act's
enactment date] shall, within the three-year
period following October 21, 1976, and prior
to December 31 of each year thereafter, file
the instruments required by . . . this
subsection. . . .
. . . .
(c) Failure to file as constituting
abandonment; defective or untimely filing.
The failure to file such instruments as
required by subsections (a) and (b) shall be
deemed conclusively to constitute an
abandonment of the mining claim or mill or
tunnel site by the owner; but it shall not be
considered a failure to file if the
instrument is defective or not timely filed
for record under other Federal laws
permitting filing or recording thereof, or if
the instrument is filed for record by or on
behalf of some but not all of the owners of
the mining claim or mill or tunnel site.
(d) Validity of claims, waiver of
assessment, etc., as unaffected. Such
recordation or application by itself shall
not render valid any claim which would not be
otherwise valid under applicable law.
Nothing in this section shall be construed as
a waiver of the assessment and other
requirements of such law.
3 BLM's decisional letter stated, in relevant part:
[BLM's] records indicate that Affidavits
of Annual Labor for the claims have been
properly filed with BLM for each year since
1979, in compliance with the requirement of
Section 314 of FLPMA. The "location notice"
filing requirement under Section 314 of FLPMA
has also been complied with . . . .
. . . .
This letter does not purport to
determine right of ownership or possession of
the disputed claims, but only that there is
sufficient documentation in the mining claim
recordation files to comply with the filing
requirements of FLPMA.
4 We note that the superior court found several factors
indicating that Miscovich and Miscovich Brothers regarded the
lease as continuing to be in effect as late as August 31, 1990:
(1) when Miscovich returned to Poorman Creek in 1968, he did not
re-stake the ground in his own name; (2) when contacted by
Resource Associates regarding a proposed purchase of the land,
Miscovich contacted Shropshire; and (3) in 1982, John Miscovich
advised Shropshire that Miscovich had been mining the claims over
the years. Although Miscovich Brothers' views concerning the
continuing validity of the lease are not controlling or
dispositive, see Wigger, 684 P.2d at 854-57 (concluding that
parties' belief as to when lease terminated was not dispositive
as to when it actually terminated), they are nevertheless
relevant and support the interpretation of the lease adopted by
the trial court.
5 We recognize that in some situations, mining activities
might be stopped due to a simultaneous depletion of resources and
deterioration of economic conditions. In these situations, a
genuinely difficult issue might arise as to whether a claim had
been "worked out"or was simply unprofitable. The present case
poses no such difficulty. The uncontroverted evidence at trial
established that Miscovich Brothers stopped mining in 1958 due to
the stagnant price of gold, which was then held by law at $35 an
6 Howard Miscovich notes that this issue is significant
not only in regard to this case, but also in regard to other
potential cases involving Howard Miscovich's and Andrew
Miscovich's respective interests in Miscovich Brothers. Given
that Andrew has already asserted collateral estoppel and res
judicata against Howard regarding this issue in another case
currently pending, Flat Creek Mining Co. v. Howard Miscovich, et.
al., Case No. 4FA-91-1631-CI, Howard's concerns are not merely
hypothetical in nature.