90 P. 438 | Ariz. | 1907
Lead Opinion
— The New Vulture Mining Company, an Arizona corporation, brought suit against Charles L. Kinsley and George E. Sanders in the court below to quiet its title to a group of nineteen mining claims situate in Maricopa county, and known as the “Vulture Group.” The defendant Sanders filed an answer disclaiming any interest in and to the property. The defendant Kinsley answered the complaint in which he set up that by reason of relocations made by him about the 31st of May, 1904, he became the owner of the mining ground described in the complaint, and alleged that said relocations were valid at the time of making them, for the reason that the ground was open for location, the plaintiff having failed during the year 1903 to perform the annual assessment work on said claims, and that plaintiff prior to the date of location had failed to resume labor thereon. The ease was tried to the court, who rendered judgment for the plaintiff. The court found that the mining claims, the ownership of which was claimed by the plaintiff, were located between the year 1879 and the year 1887; that the plaintiff during the year-1903 did and performed the required annual assessment work for the group of claims, and that none of said mining claims were open to location as abandoned property during the year 1904; that the assessment work so performed consisted of the salary and expense of a keeper necessarily paid by the plaintiff for the care and preservation of the claims and improvements thereon, and in the doing of actual mining work and necessary road work upon the same; that the salary paid said keeper for said year was $1,000, and the amount paid for his living expense, as part of his compensation for his services for said year, was $460, and that -a sum in excess of $500 was paid for said mining work and road work for said year 1903; that said- expenditures were made in the furtherance of a plan, or general scheme, of mining and of the development of said claims as a group, and was properly done for such purpose, each and all of said claims being contiguous one to another, and being owned by the plaintiff. From the judgment for plaintiff-and the overruling of their motion for a new trial, the defendants have appealed.
It appears from the record that upon the trial the defendants moved, at the close of the plaintiff’s ease, that the complaint be dismissed for the reason that the plaintiff had failed to establish its ownership of the claims. The refusal of the
It is also assigned as error that the court improperly admitted in evidence an affidavit of assessment work made by one George W. Sanders on behalf of the plaintiff for the year 1903. As the affidavit is not incorporated into the abstract, we may not, under our rules, consider this assignment.
The findings of the court relative to the amount and value of the assessment work done and performed by the New Vulture Mining Company for the year 1903 are attacked by appellants upon the ground that the evidence does not support these findings. An examination of the evidence shows that the findings of the court, with regard to the amount and value of the actual mining work and necessary road work done upon the claims.for the year 1903, are sustained by the evidence. It is argued by counsel for appellant that the court erred in including as a part of the annual assessment work done for the year 1903 the salary and living expenses of the keeper. It is contended that the evidence does not show any necessity for the maintenance of the keeper upon the property, and, there being no such necessity, the cost of such keeper cannot properly be counted as assessment work. There was much testimony put in by both parties on the question whether or not a keeper on the property was reasonably necessary during the year 1903. It was shown that in former years the property was extensively worked, and a great deal of ore, some of which was of high grade, extracted. It is in testimony that in the old workings are what are termed “pillars,” which contain ore of reasonably high grade, and that it is possible for ore thieves, if the mine be unguarded, to enter these old workings and extract this ore, and in this way disturb the pillars, to the injury of the mine. It is also in testimony that there is a mill on the property containing machinery, part of which possesses a present value, a cyanide plant in fair state of preservation, a number of buildings of more or less value, and a hoist in use for the purpose of taking out water from one of the inclines. There are blacksmith tools, an assaying outfit, and other like property kept in some of the buildings. It is undoubtedly true that much of the machinery on the property is old and of comparatively little value. It is also true that many of the buildings are in bad state of repair.
After the trial of the case the court ordered judgment for the plaintiff, which order was entered on the minutes of the court on December 2, 1905. The judgment was signed by the court, and is. dated on the sixth day of January, 1906. A cost bill was filed by the plaintiff on January 2, 1906. The defendants moved the court to strike this cost bill from the files upon the ground that it was not filed within the statutory time of ten days after judgment. This motion was denied by the trial court, and this ruling is assigned as error. Paragraph 1557, Revised Statutes of 1901, reads: “The party in whose favor judgment is rendered and who claims his costs, shall file a statement of his costs, and shall serve a copy thereof on the opposing attorney. . . . The statement must be filed within ten days next after judgment, unless, for good cause shown, the time shall be extended by the court. ’ ’ The record does not show that the court extended the time for filing the cost bill, or that any application was made to the court for such an order. The question is therefore presented as to whether the date when the court ordered judgment, or the date when the written judgment was signed and filed with the clerk, is to be considered in determining the time within which, under the statute, the cost bill was required to be filed. This precise question does not seem heretofore to have been determined by this court. At this term of the court in the case of Prescott Nat. Bank v. Head (11 Ariz. 213), 90 Pac. 328, it has been held that, for purposes of appeal and filing a reporter’s transcript on appeal, the term at which judgment is rendered is the term at which judgment becomes final by the
The judgment is modified by striking out the costs included in the cost bill in question and awarded to the plaintiff, and, subject to such modification, the judgment is affirmed.
DOAN and NAVE, JJ., concur.
Dissenting Opinion
dissenting. — The titles'to nineteen mining claims are involved in this action. The trial court found that the 'annual assessment work upon the claims for the year 1903 consisted of the salary and expenses of a keeper necessarily incurred in earing for and preserving the mines, to the extent of $1,460, and mining and road work to the extent of $500. The testimony discloses that in 1897, when active operation of the mines ceased, there was left upon the property a number of buildings, some mining tools, an ‘assay outfit, a mill and cyanide plant. No use was made for mining purposes of any of the buildings, tools, or mills, during the six years previous to the attempted relocation. The testimony also shows that during these six years the buildings have become dilapidated, the machinery has rusted, the mill has become little better than scrap-iron, and perhaps no part of the equipment remains- in as good condition as when work ceased. It is a matter of common knowledge that the longer such equipment is “watched” the less valuable it becomes. I think the true rule on this subject is stated in Hough v. Hunt, 138 Cal. 142, 94 Am. St. Rep. 17, 70 Pac. 1059; and that the amount expended for the salary and expenses of a caretaker in this case was not for labor performed or improvements made within the meaning of the statute.