56 P. 723 | Ariz. | 1899
1. The appellant brought an action in the district court of Gila County against appellees to quiet title to a certain mine or mining claim, located on the twelfth day of September, 1896, called the “Deep Down Mining Claim.” Defendants made answer, and denied the validity of the location of the Deep Down mining claim, but admitted the acts of the location thereof. As a further answer they alleged that they were in possession of the ground covered by the Deep Down mining claim, by virtue of being the owner of a mining claim called the “Skull,” located on the fourth day of September, 1896. Said action was not brought as an adverse, pursuant to an application for patent. Neither party at the time of the commencement of the action or at the trial thereof had made application for patent to either of these claims. On the trial of the case plaintiff asserted, and adduced some evidence to prove, that at the time defendants had located the Skull mining claim the ground was not open to location, by reason of the same having been located on the 13th of June, 1896, by A. 0. Crane, John Kasser, George Gessell, and W. J. Grandstaff, and known as the “Damfino Mining Claim”; that the ground covered by both the Skull claim and the Deep Down claim was the same as that covered by the Damfino mining claim; and that the ground was not open to location or relocation until the expiration of ninety days from the 13th of June, 1896,—to wit, the 11th of September, 1896. It was asserted by the defendants that the Damfino mining claim, located on the 13th of June, 1896, was not a valid mining claim, and, further, that before the Skull mining claim was located the locators of the Damfino mining claim had abandoned the ground. The cause was tried to the court without a jury, and upon that point the court found that “on the 13th day of June, 1896, Crane, Kasser, Gessell, and Grandstaff attempted to locate a mining claim em
2. It is well settled by numerous decisions, and by our own court, that when a location has once been made the ground covered thereby is not public mineral land open to location, and no one can make any other location thereon so long as the first location is a subsisting one; so, if appellant’s contention that the Damfino claim was existing at the time the Skull claim was located be true, the finding of the court would be erroneous. We have made a careful examination of the evidence in regard to the location of the Damfino mining claim, and of the acts of the parties whose names were connected with the location after the date the location notice bore. Grandstaff alone made the location and wrote the names of the other co-locators to the location notice. None of those whose names are on the location notices ever did anything, or ever attempted to do anything, except Grandstaff and Gessell, and none but Grandstaff and Gessell seemed to know anything about the claim, or, in fact, to know that their names were on the location notice. Grandstaff says that he “made a little monument, and put the notice in it, and built another one right up above it; that he sunk about three feet; that one of his partners [Gessell] came down and looked at it, and they both decided that it was no good, and destroyed the monument, and that that was all that was ever done on the claim; that the claim was abandoned because it was no good; that, in two or three days after he had written the notice and built the monument, he went away, and left the territory, with the intention of having nothing further to do with that claim, as he regarded it of no account. Gessell and myself both abandoned the claim. The others never did anything with it. ’ ’ Abandonment has always rested in intention, as well as in acts accompanying the intention. Under the statute a locator
3. Objection is made by appellant to the introduction of the location notice of the Skull mining claim by appellees, and, because it was received as evidence, she assigns error. By looking at the record we discover that appellant brought her action before the expiration of the time allowed by statute for the filing of the notice of location With the recorder; and hence, when appellant attacks the location of the Skull claim, appellees would have to show only the acts of location, independent of a certificate of location. Session Laws of 1895 (act No. 42, sec. 1) prescribe: “Every notice of a location of a mining claim shall contain: 1st. The name of the claim located. 2nd. The name of the locator. 3rd. The date of the location. 4th. The number of feet in length of said claim and the number of feet claimed on each side of the center of the discovery shaft, lengthwise of the claim. 5th. The general course of the lode, deposit or premises located. 6th. The locality of the claim with reference to some natural object or permanent monument as will identify the claim.” Section 2 provides that a certificate not containing these things shall be void, which, by inference, means that, if it does contain these things, it is valid. Let us see the location notice: “Notice is hereby given that the Skull mining claim, containing mineral-bearing quartz, rock, or earth in place, located by James A. Fleming and J. M. Ford, on this 4th day of September, 1896, has been located for mining purposes. Said claim is 1,500 feet, in length; and we claim 300 feet on each side of the center or discovery shaft, for the full length of the claim. The general course of this lode deposit or premises is easterly and westerly. This claim is situated in Globe
Sloan, J., and Davis, J., concur.