53 P. 579 | Ariz. | 1898
The appellee, George H. Schuerman, filed in the land office at Prescott, Arizona, on the thirtieth day of April, 1895, an application for patent to a certain mining claim in Verde Mining District, Yavapai County, Arizona, called the “Wonderful.” On the third day of August, 1895, and within the period of sixty days of publication of application, appellants filed in said land office their contest to said application for patent to said Wonderful mining claim, on the ground that 3.66 acres of land embraced in the Wonderful mining claim was the property of appellants, and within the limits of a certain mining claim belonging to them, called the Equator. Upon the filing of said contest the usual order was made in the land office stopping all further proceedings until the rights of the parties to that portion of said mining claim in contest could be ascertained by a court of competent jurisdiction,
Appellants thereafter instituted this suit against appellee, hlai-miug title to, and the right of possession of, 3.66 acres of land embraced within the Wonderful mining claim, as well as within the Equator mining claim, as shown by a diagram
The action of appellants against appellee is in the nature ■of a suit to quiet title, under the provisions of paragraph ■3132 of the Revised Statutes of Arizona, approved March 17, 1891, which reads as follows: “An action to determine and quiet the title of real property may be brought by any one having or claiming an interest therein, whether in or out of possession of the same, against another who claims an estate or interest adverse to him.” Within the time for answering •such complaint the defendant, Schuerman, filed a general denial; and afterwards, on the twenty-third day of August, 1897, one day before the cause was called for trial, filed an amended answer and cross-complaint, setting up title to the land in dispute by virtue of the said Wonderful mining location made on the eighteenth day of October, 1883, and asked that his title thereto be quieted against the claim of appellants. Defendant further alleged in his answer that at a date less than sixty days prior to the eleventh day of November, 1896, being the owner of the Wonderful lode, and in possession thereof, he made an amended location thereof, and did on the tenth day of December, 1896, cause to be recorded in the office of the county recorder a certificate of such amended location, all of which was done in accordance with the laws of the territory of Arizona and the statutes of the United States. Defendant, as a further defense to plaintiffs’ complaint, alleged that on the seventeenth day of October, 1883, the Copper Chief mining claim was located, and that on the first day of January, 1884, it was a good and valid subsisting mining claim; and all the acts done or attempted' in the location of the Equator claim were done and performed within the limits and upon the territory of the said Copper Chief mining claim; and that therefore the Equator location was void.
The contest between these parties in reference to the Copper Chief and Equator claims, or the conflict of territory amounting to 6.14 acres of land in common to those two claims, was decided by this court at the present term, and is reported in Jordan v. Duke, ante, p. 55, 53 Pac. 197.
By reference to the diagram accompanying this opinion, which is identical with the diagram accompanying that opinion, it will be seen that the Copper Chief and Wonderful loca
The questions submitted to the jury became narrowed to almost the single question whether the annual expenditure had been made on the Wartoga located by Ferguson for the year 1881. If it had been done, and the jury should so find, as they of necessity must find in rendering their verdict for appellee, the same result would be arrived at which was reached in the case of Jordan v. Duke, ante, p. 55, already referred to in the contest between the Copper Chief and the Equator, decided by the court at the present term, and reported in 6 Ariz. 55, 53 Pac. 197; and the reasoning there used by the court would as to similar facts be pertinent to the circumstances, conditions, and law of this case.
One of the assignments of error which appellants insist upon with vigor is, that the court refused to grant a continuance of
Appellants further insist upon their assignment of error in relation to the amended notice which appellee made of the Wonderful mining claim. Substantially the same question arose between these parties in the contest between the Equator and the Copper Chief, wherein the appellee, Schuerman, was added as a party defendant, and allowed to introduce evidence in regard to the amended location notice of the Copper Chief mining claim. We there said that the amended location notice did not inaugurate any new rights; it had relation to the original location. In contests of this nature there is always the struggle, first, to show that the adversary has no right to claim the ground against the other claimants; and each claimant seeks to obtain such a verdict as may enable him to obtain a patent from the government of the United States. And in this case the issue is of a three-ply nature—first, one between the Equator claim and the government; second, between the Wonderful claim and the government; third, between the Equator claim and the Wonderful claim.
It was perfectly legitimate to introduce evidence of the
The balance of the assignments of error refers to the instructions of the court, all of which relate to the relocation of the Nellie claim, and to the resumption of work on Kell’s Nellie at the time the Equator claim was located, all of which matters have been heretofore adjudicated between these parties and fully determined by this court in the case of Jordan v. Duke, ante, p. 55, 53 Pac. 197, as hereinbefore mentioned.
The crucial point of contest between appellants and appellee was as to whether the annual expenditure had been performed on the Wartoga claim, in 1881, which was determinative of the question whether the Wonderful claim was locatable in 1883. This point has been decided by the verdict of a jury in favor of appellee, under evidence so plain and substantial, and so satisfactory to this court, that this court feels it ought not to disturb a judgment on that verdict unless there could be discovered some grave error in the rulings of the trial court. We find none. So far as the record discloses the rulings of the court on the trial, we are not able to
Davis, J., and Doan, J., concur.