76 P. 602 | Ariz. | 1904
This is an action of ejectment brought on July 8, 1901, for the possession of a mining claim in the Castle Dome mining district, known as the Newe Dil, called also the New Deal, located on October 15, 1890. The appellants in their verified answer claimed the ground in dispute by virtue of a deed'to the Blanca mining claim, located April 23, 1900. From a judgment for plaintiffs, and the denial of a motion for a new trial, the defendants appealed, and present to the appellate court two propositions: 1. That the undisputed evidence in the case established that the premises in dispute were outside of the boundaries of the New Deal, and therefore the Blanca, the property of the defendants, was a valid location, having been located upon unappropriated public ground; and 2. That there is no allegation or proof of possession of the premises in the plaintiffs prior to the institution of the suit and of ouster by the defendants, which is necessary to sustain a judgment based upon a complaint in ejectment under the law in force at the time suit was brought.
Appellants allege that the court erred in finding that the “Blanca lode mining claim encroaches upon and embraces within its boundaries a portion of the property of the said Newe Dil mining claim, as follows, to wit: Said claim commences at a stone notice monument which is the northerly end center monument thereof, and which said monument or point is the southeasterly end center monument of the Castle Dome mine, surveyed March 2,1876, for James M. Barney, as shown by the records of the United States surveyor’s office. . . . That all that portion of the said Blanca lode mining claim which lies southeasterly of the said Castle Dome mining claim, or the said southeasterly end center monument thereof, is a part and parcel of the said Newe Dil mining claim” — for the reason that there is no evidence to sustain such finding. The facts bearing on this question, as disclosed by the record, are substantially as follows. The Hopkins claim was located December 11, 1871, and claimed eight hundred feet on the Buckeye ledge, the notice recorded in Castle Dome district and the public records of Yuma County. The Norma claim was located January 1, 1876, one thousand feet on the Buckeye ledge, Castle Dome district, Yuma County, commencing at the north monument of the Caledonia, and running thence in a northeasterly direction one thousand feet to the southern monu
The record on which the appellants base the alleged error in the finding under consideration is the testimony of witnesses as to statements made by Yomocil, the locator of the New Deal and the grantor of the appellees in this case. This testimony is all directed to statements relative to the north monument of the Norma, and is not necessarily irreconcilable with the finding referred to. These were all conversations held by illiterate men, who were unacquainted with the lines or boundaries of the claims in that district, and were had ten or twelve years prior to the trial of the case. In all of them reference is made to the north end of the Norma. They are assumed to be contradictory to the evidence of the plaintiffs, and inconsistent with the finding of the court, by the assumption that the north end of the Norma was identical with that of the New Deal. The conversations were referred to as having occurred about the year 1890, 1891, or 1892, but in every instance the witnesses used the term “Norma” when referring to the claim. Some of them speak of the “Old Norma,” and from the language of the witnesses it is not clear whether there was an old Norma and a new Norma prior to the location of the New Deal, or whether they refer to the New Deal as the new Norma. An examination of the record satisfies us that the monument referred to by Yomocil in these conversations was the north monument of the Norma claim, and, as the south end of the New Deal is identical with the south end of the Norma, — viz. the north end of the Caledonia, — and the New Deal claim is fifteen hundred feet in length, while the Norma claim was only one thousand feet in length, four or even five hundred feet of vacant ground northwest of the Norma could have been covered by the location of the New Deal before the location of the Blanca, and this-evidence, if accepted and given credence, would be entirely consistent with the finding of the
In support of the nest proposition, appellants claim that the court erred in finding “that before the commencement of this action, to wit, on or about the 10th day of January, 1901, plaintiffs were rightfully in possession of the said Newe Dil mining claim, and claimed the right to occupy and possess the said premises, and that on said last-mentioned day the defendants wrongfully entered into and upon the said claim and dispossessed the plaintiffs, and have ever since unlawfully withheld from the plaintiffs the possession of a portion of said Newe Dil mining claim as hereinafter described,” for the reason that there is no evidence to sustain such finding.
The law prior to September, 1901, under which appellants insist actual possession and ouster must be averred and found, read as follows (Eev. Stats. 1887):—
“3135. (Sec. 4.) The action of ejectment may be maintained in all cases where the plaintiff is legally entitled to the possession of the premises. . . .
“3137. (Sec. 6.) It shall be sufficient for the plaintiff to state in his complaint that on a certain day named therein he was entitled to the possession of the premises . . . and the defendant on a day named in the complaint afterwards, and before the commencement of the action entered into and dispossesed him of such premises and unlawfully withholds from the plaintiff the possession thereof. . . .
“3139. (Sec. 8.) It shall be sufficient to entitle the plaintiff to recover to show at the time the action was commenced, the defendant was in possession of the premises claimed, and that the plaintiff had a right to the possession thereof.”
In support of their position on this question, appellants cite from the testimony of the plaintiff, in which he says, “I was in occupation of the ground covered by the certificate, all but the 400 feet there,” and at another point, “I was in possession of all but 400 feet of this mine.” They then cite from the testimony of defendants’ witnesses statements of Yomocil, made about the year 1890, in which he speaks of the ground lying north of the Norma as being vacant ground that might
The judgment of the district court is affirmed.