80 P. 331 | Ariz. | 1905
The complaint in this adverse suit alleges, substantially, that the plaintiff (the appellant herein), a citizen of the United States, is the owner and entitled to the possession of a certain mining claim located by him in 1902, such ground being then unappropriated mineral land of the United States, and sets forth the performance by the plaintiff of the acts necessary to be performed to make such location valid under the law. It alleges that the defendant, under claim of ownership' of a part of the ground, made application for patent based on a pretended location in 1894, but alleges that such location was null and void, for the reason that the ground was not located in accordance with the provisions of law, and further alleges that after such pretended location the annual assessment work was not performed by the defendant. It sets forth the filing of the adverse by the plaintiff within the proper time, and prays judgment that the plaintiff be decreed to be entitled to the possession of the parcel claimed by the defendant. The answer, after a general denial, sets forth facts showing that the defendant duly located the ground in dispute in 1894, and duly performed the acts required to make such location a valid one, and thereafter performed each year the necessary assessment work, and alleges that the ground was not open to location at the time of the pretended location of the plaintiff, and that such location was void, and that the defendant is the owner and entitled to the possession of the land for which he has applied for patent, and prays judgment that the defendant’s title to the land be decreed to be a good and valid title. Upon the trial the plaintiff offered no proof of the failure of the defendant to perform the necessary assessment work on the claim, nor any proof that the prior location was invalid, but introduced evidence to show that the plaintiff had taken the steps necessary to make a valid location of unverified mineral land, if unappropriated, and offered in evidence his location certificate, which was received subject to the defendant’s objection to its competency; the ground of the objection being that the certificate did not contain a statement that the ground was located, in whole or in part, as abandoned property, as required by the statute. The defendant introduced evidence to show the steps taken by him in locating the ground in 1894. After the testimony was all in, the court rendered a decision
This appeal raises substantially the same questions which we have just passed upon in the case of Cunningham v. Pirrung, ante, p. 288, 80 Pac. 329. In the ease before us the court heard all the testimony of both parties, and from it found that the prior location of the defendant' was a valid one. Such prior location being a valid location, it was a bar to the subsequent location of the plaintiff, unless the latter was made as a relocation of abandoned or forfeited ground. It was not claimed on the trial that the location of the plaintiff was made as a relocation of abandoned ground, and, if so claimed, the location certificate was not sufficient to support such a location, as it did not contain the requirement of the statute. The court, therefore, under the facts as it found them, was right in rendering judgment against the plaintiff and in favor of the defendant.
It is further urged by the appellant that the evidence does not support the finding of the court that the defendant had made a valid prior location, and that affirmative judgment for the defendant should not have been rendered. The contention
From the record before us, we are unable to determine whether the appellant is right in his contention that no proper location notice was filed and recorded by the defendant in the recorder’s office in Yavapai County. The record shows that the application of the defendant for patent of the claim, and the papers filed by him in the land-office in connection therewith, were introduced in evidence. These papers, however, 'have not been incorporated in the record, nor have the originals been sent to this court with the other papers in the case. We might, perhaps, take judicial notice of the fact that upon an application for patent it is necessary for the applicant to file a certified copy of the location notice as recorded, and we might properly presume from the introduction of such papers in evidence that such certified copy of the location notice was before the trial court, and that upon it the court based its specific finding in regard to the location notice, and the date of the filing thereof in the proper recorder’s office. Such a
The judgment of the district court is affirmed.