68 P. 529 | Ariz. | 1902
Appellee Martin Costello filed his application in the land office for a patent to the Leo mining claim, and within the sixty days Francis A. Ovens and L. C. Shat-tuck filed an adverse, and brought their action in the district court of Cochise County. They set up their title to the Triangle mining claim, and allege that 7.91 acres of the Leo claim overlap the Triangle claim. The Triangle claim being a prior location, they ask that their title to the ground in conflict be quieted, and be declared to be in them, the plaintiffs. The defendant, Costello, answered, denying the validity of the Triangle claim, and, as a cross-complaint, set up the location of the Leo mining claim, praying that he be entitled to the possession of all the Leo mining claim as described in his location notice,- and that he be entitled to a patent from the United States, and that his claim be quieted as against the claim of plaintiffs’ asserted right to the Triangle claim. The cause was tried to the court, and defendant, Costello, had judgment against L. C. Shattuck upon the following findings of fact: “The court finds from the evidence that the plaintiff Francis A. Ovens died some time during the year 1898, before the commencement of this suit, and before the adverse claim made in plaintiff’s complaint was filed in the United States land office in Tucson. As between the plaintiff L. C. Shattuck and the defendant, Martin Costello, upon the issues of fact the.court finds in favor of the defendant and against said plaintiff, and that the allegations of defendant’s cross-complaint are true.” Numerous assignments of error were made, all of which, in effect, were that the findings of fact and the judgment were contrary to the evidence, and also that the findings of fact were too general to base a judgment upon.
The statute provides that “In all cases where a trial of an issue of fact is held by the courts of record of the territory, the decision of the court shall be in writing, and filed with the clerk within thirty days after the trial takes place. In giving the decision the facts found and the conclusions of law shall be separately stated. Judgment upon the decision shall
The result of the evidence produced by the respective ^parties leads to the conclusion that the Henrietta mining claim was an existing, valid location up until the close of the year 1895; that 'when Costello made the location of the Leo, December 12, 1895, the ground was not open to relocation, and he could not initiate any rights at that time. No one could initiate a right by an attempted location before January 1, 1896, which was the date of plaintiffs’ location. The evidence in regard to these conflicts is not as clear and as distinct as one could desire, but, if the Henrietta is to be regarded as a valid, existing claim (and upon that point we have no doubt), then the evidence more strongly shows that it was a valid, existing claim on the twelfth day of December, 1895, and included ground which is the subject of this conflict, than that it was abandoned or forfeited before 1895. The evidence of witnesses in those particulars, taken in connection with evidence that location notices bearing Costello’s name had been recorded for the Leo ground, dated on the twenty-seventh day of January, 1900, with the declaration, “This is a relocation of the ground formerly located by unknown parties, and abandoned in 1895 or 1896; name of former location unknown,” leads to the conclusion that the location of January 27, 1900, was the act of the former locator of the Leo for the purpose of strengthening his right to his earlier location. It stands in the nature of an admission by Costello that the location of December 12, 1895, was premature.
The judgment of the district court is reversed, and case is remanded to district court for new trial.
Sloan, J., and Doan, J., concur.