Allyn v. Schultz, 48 P. 960

Allyn v. Schultz

48 P. 960 | Ariz. | 1897

HAWKINS, J.

(after stating the facts).—There are numerous errors assigned, only a few of which we deem it necessary to notice. The object of this suit, it will be seen from the statement of facts, was to adverse Allyn in the obtaining of a patent to the Mohawk mining claim. The complaint dees not allege, nor is it proved, that any of the plaintiffs were citizens of the United States or had declared their intention to become such. Defendant claims error in overruling the general demurrer on this account. The complaint prays that plaintiffs’ title be quieted, and they (plaintiffs) claim it is not necessary to allege or prove citizenship in such a case. This claim is true in an ordinary action to quiet the title to mining claims between individuals (Thompson v. Spray, 72 Cal. 528, 14 Pac. 182; Moritz v. Lavelle, 77 Cal. 12, 18 Pac. 803; Souter v. Maguire, 78 Cal. 544, 21 Pac. 183), but this is not such a case. The object of this suit (being an adverse) is to quiet the title between these individuals and the United States. It will not do to say that the mere form of the complaint is to govern in this class of cases. Section 2326 of the Revised Statutes of the United States does not provide what form of action shall be brought. It may be ejectment, a suit to try the right to real property under the statute, or an action to quiet the title, or the form ordinarily used in adverse actions. Yet when it appears that the object of the suit is to adverse the party applying for a United States patent, it is necessary to both allege and prove that plaintiffs are citizens of the United States; or have declared their intention to become such. Lee Doon v. Tesh, 68 Cal. 43, 6 Pac. 97, 8 Pac. 621; Anthony v. Jillson, 83 Cal. 296, 23 Pac. 419; Rosenthal v. Ives, 2 Idaho 265, 12 Pac. 904. If the complaint fails to allege citizenship, it is bad on demurrer. The demurrer in this case was general, and, the record shows, was formally submitted to the court below and was overruled. It was not urged by defendant, but an exception was taken. This point should have been called directly to the court below and urged. Where a point is unquestionably well taken on demurrer, counsel should call the attention of the court to the same, so the court should have an opportunity to give it the proper consideration.

The complaint not alleging citizenship of the plaintiffs, and the evidence not proving the same, would warrant a reversal *160and new trial; but in examining the entire record we have concluded to consider the whole case. The testimony of Wood, an original locator of the Mohawk mining claim, shows that when this claim was located the southerly end of the Mammoth was made the northerly end-line of the Mohawk, with monuments the same; yet monuments 1 and 3 were shifted long before any rights were acquired under the New Year location, and the location as shown by the diagram was distinctly marked on the ground, and these lines and monuments pointed out by the owners of the New Year to the agent of Allyn; and, Allyn having been induced to purchase the Mohawk by such representations, they (plaintiffs) are estopped from denying the truth of the representations made by them regarding the line between the Mohawk and New Year claims. The rules of law relating to estoppel in pais apply to mining ground the same as any other kind of real estate. Blake v. Thorne, 2 Ariz. 347, 16 Pac. 270. The facts show that Schultz pointed out the monuments of the Mohawk claim to Allyn's agent on the boundary-line between the Mohawk and the New Year claims while Schultz was the owner of the New Year; and afterwards he quitclaimed an interest to Bertha Schultz. She, as a privy in the estate, is bound by the same estoppels as her grantor. 7 Am. & Eng. Ency. of Law, p. 23, and cases cited in notes; Bigelow on Estoppel, pp. 607, 608. “A party is estopped to deny the line between his own and the adjoining land to be the true line, if he has sold and conveyed land up to such line, has pointed it out as the true line, and has induced the defendant to purchase up to such line.” Hermann on Estoppel, p. 1270, sec. 1133, and authorities cited. The deraignment of title to the New Year Mine fails to show the title as found by the court. Schultz located the mine on January 1, 1885. He quitclaimed a three-eighths interest to his wife, Bertha Schultz, January 4, 1893, and made affidavit of the forfeiture of John Haynes for non-representation for 1893. No record title is shown in either of the Bauers. No judgment should have been entered in their favor. Rev. Stats. U. S., sec. 2326, as amended March 3, 1881. In this class of cases, each party is to establish his right to the mining ground' in controversy against the United States as well as against his adversary. The party filing the contest should allege and prove every step necessary to establish his right to his min*161ing claim that would be required in the land office for a patent, with the exception of advertisement and certificate of surveyor-general as to amount of work required before patent could be obtained. If the proof shows no title, or that all the requirements of the law have not been complied with, he can recover no judgment. Plaintiffs must recover on the strength of their own title, and not on the weakness of that of their adversary. Gwilim v. Donnellan, 115 U. S. 50, 5 Sup. Ct. Rep. 1110. There was a location by Schultz which on its face seems valid. Then the other plaintiffs must, before a decree is rendered in their favor, show a title in themselves based on such location. The proof is wanting in so far as Susana Bauer is concerned. The complaint does not state facts sufficient to constitute a cause of action in an adverse in not alleging the citizenship of the plaintiffs or their intention to become such. It is nowhere shown in the evidence that plaintiffs are citizens or had declared their intention to become such. It is shown that plaintiffs John and Susana Bauer sold the strip of land in disputé to Allyn as being a part of the Mohawk claim, and they are estopped from claiming the same ground as a part of the New Year or any location, so long as the Mohawk is a valid subsisting claim. The evidence shows that neither of the Bauers ever owned any interest in the New Year claim, and that Prank Schultz represented to Allyn that the monuments of the Mohawk were at the points where defendant claims them to be, and pointed out the boundary-line between the Mohawk and New Year claims to defendant, who purchased relying on the representations of Schultz. He and Bertha Schultz, his privy in interest, are estopped from denying the truth of such representations. The ground in dispute is a part of the Mohawk claim, and was never included in the New Year location. The judgment of the lower court is reversed, with directions to enter judgment for the defendant.

Baker, C. J., and Bethune, J., concur.