Jordan v. Duke

STREET, C. J. The appellees Duke & Ferguson filed in the land office in Prescott, Arizona, in May, 1891, an application for patent to a certain mining claim in Verde Mining District, Yavapai County, Arizona, called the “Copper Chief.” In July thereafter appellants filed in said land office their contest to said application for patent to said Copper Chief mining claim on the ground that 6.14 acres of land embraced in the Copper Chief mining claim was the property of appellants, and within the limits of a certain mining claim belonging to them called the “Equator.” Upon the filing of said contest the usual order was made in the land office, stopping all further proceedings until the rights of the parties to that portion- of said mining claim in contest could be ascertained by a court of competent jurisdiction. Appellants thereafter instituted this suit against the appellees Duke & Ferguson, claiming title and the right of possession of 6.14 acres of land embraced within the Copper Chief mining claim, as well as within the Equator mining claim, as shown by the diagram accompanying this opinion. The action by appellants against appellees is in the nature of a suit to quiet title under the provisions of paragraph 3132 of the Revised Statutes of Arizona, as amended by act No. 46 of the sixteenth legislative assembly of Arizona, approved March 17, 1891, which reads as follows: “An action to determine and quiet the title of real property may be brought by any one having or claiming an interest therein, whether in or out of possession of the same, against another who claims an estate or interest adverse to him. ’ ’ To the complaint of plaintiffs the defendants Duke & Ferguson filed a general denial, and the cause proceeded to trial before a jury in the district court of Yavapai County, where the same was instituted. Verdict and judgment were in their favor, and from which judgment appellants prosecuted an appeal to this court, and obtained a reversal thereof and a new trial upon an assignment of error, covering certain instructions given by the court to the jury. Before the cause was tried anew it suffered a change of venue to Pima County, and thereupon the defendants Duke & Ferguson amended — 63 — their answer and filed a cross-complaint setting np title to the land in dispute, and asked that their title he quieted against the claim of appellants. The cause was tried before a jury, and after the plaintiffs had rested their case, and the defendants Duke & Ferguson had introduced a large body of their testimony, the defendant Sehuerman obtained leave of the court to be added as a party defendant upon showing to the court that he had succeeded to the interests of Duke & Ferguson in and to the Copper Chief mining claim. The dispute to the ground in contest arises upon priority of location of the Copper Chief and the Equator mining claims respectively. The ultimate facts presented to the jury upon which they might determine the priority of location are as follows: That W. H. Ferguson and James Biddle located a mining claim called the “Nellie” on December 20, 1879, who also relocated the same ground on February 26, 1880, because of some supposed defects in the location of December, 1879, which claim, during the trial, was, for convenience, designated as “Ferguson’s Nellie”; that one George Y. Kell and Robert K. Evans located the same ground on January 2, 1882, and gave it the name of “Nellie,” under the supposition and claim that the annual expenditure or representation work had not been done upon the claim of Ferguson’s Nellie in the year 1881. This claim was likewise designated at the trial as “Kell’s Nellie.” Ferguson, disregarding Kell’s Nellie as a valid location, and insisting that the annual expenditure on Ferguson’s Nellie had been made for the years 1880 and 1881, and therefore it was not subject to relocation until 1883, located the Copper Chief October 13, 1883, which substantially covered the ground formerly located as Ferguson’s Nellie, and also located as Kell’s Nellie, besides covering other and more ground embraced in the Equator claim. Afterwards Duke became the co-owner with Ferguson in the Copper Chief. The appellants F. E. Jordan, E. A. Jordan, and "W. A. Jordan, disregarding the Copper Chief location, and holding that the location of Kell’s Nellie was a prior subsisting location to the Copper Chief, and claiming that the annual expenditure had not been made by Kell and the owners of Kell’s Nellie for the year 1883, went upon the ground January 1, 1884, and made a location of the Equator claim. The defendant Head afterwards purchased an interest in the Equator claim. — 64 — The relative locations of the Copper Chief and the Equator mining claims are shown on the accompanying diagram in deep black lines:— It was admitted that the annual expenditure for 1883 had not been done on Kell’s Nellie in the year 1883, but when the locators of the Equator claim arrived on the ground on the last day of December, 1883, they found the owners of Kell’s Nellie on the ground also, and about ready to resume representation or annual expenditure work on their location of the Nellie. The owners of Kell’s Nellie remained upon the ground for some six days, and did work thereon to the amount of about sixty dollars, when they quit and went away. ■ The prime question for the jury to solve was whether Ferguson’s N.ellie was a proper location in 1879 or 1880, and, being so, whether the annual expenditure had been made thereon for the year 1881, as required by the statutes of the United States. If those questions should be solved by the jury in favor of Ferguson’s Nellie, it would follow that the ground was not open for relocation in 1882, and the location thereof by Kell and Evans on the second day of January, 1882, established for them no interests in the same. If Kell’s location was. void by reason of having been made at a time — 65 — when the ground was not open to location, then the Copper Chief location of October 13, 1883, if properly made, would have priority over the Equator location made January 1, 1884. If, however, the annual assessment-work had not been done in 1881 on Ferguson’s Nellie, the ground would have been open to relocation January 2, 1882, when Kell made his location; and if the annual expenditure for 1883 had not been made thereon, or if the owners thereof had not resumed work before the expiration of the year 1883, the ground would have' been open to location on January 1, 1884, when the Jordans made a location of the Equator claim; and it would then become material as to whether the owner of Kell’s Nellie had, in fact, resumed work upon that claim before the expiration of the year 1883, and pursued it to a final completion, or to the extent of one hundred dollars required by the statute. The jury solved the question in favor of appellees, and in favor of the Copper Chief claim, as follows: “We, the jury, find the issues herein joined for the defendants; and we further find that they have established a right and title to, and are entitled to the possession and occupancy of, the premises in controversy, by reason of full compliance with the acts of Congress and the laws of the territory of Arizona relating thereto.” This verdict is in harmony with the instruction given the jury by the court at the request of appellants, which is as follows, to wit: “If you find that neither the said Nellie location of December 20, 1879, nor the said Nellie location of February 26, 1880, was a good and valid location, then you are instructed that the ground covered by such attempted locations was open to location and entry on January 2, 1882, and that the same was subject to be relocated by any citizen of the United States. And if you further find that on said 2d day of January, 1882, one G-. Y. Kell did make a valid location of said ground, or any part thereof, which embraced the ground in dispute in this action, then you are further instructed that the attempted location on the same ground by the defendant Ferguson in 1883, as the Copper Chief location, was void. . . . So', then, if you find that the Nellie location of 1879 or of February 26, 1880, was valid, but that the same became forfeited for the mm-performance of annual work for the years 1880 and 1881, and you further find that the Kell location of the Nellie in 1882 was valid, then, and in that — 66 — event, also, you will find that the Copper Chief location of the defendant Ferguson was void, so far as the ground in dispute in this action is concerned, for the reason that, if the Kell location of the Nellie in 1882 was valid, then the ground within the limits of that location was not subject to location or appropriation by another until after the expiration of the year 1883.” The jury having resolved the facts-in favor of appellees and the Copper Chief settles the rights to the disputed ground under the law, and the judgment rendered thereon must stand, unless there can be shown some error of the court in directing the issues, or the introduction or rejection of evidence, or the instructions to the jury. It is not pretended that there is not sufficient evidence to support the verdict of the jury. Therefore, nothing is before us to decide but the correctness of the rulings of the court during the trial of the cause, and of the instructions given to the jury or asked or refused. 2. Appellants have made numerous assignments of error and specifications under such assignments, some of which are insisted upon in the brief. 'An examination of all of them becomes unnecessary, inasmuch as the verdict of the jury was in support of the Copper Chief location. The jury were at liberty to have rendered one of three verdicts: First, for the appellants, supporting the Equator claim; second, for the appellees, supporting the Copper chief; and third, for the government, supporting neither the Equator nor the Copper Chief claims. Had the appellees, as defendants in the district court, gone to trial the second time, as they did the first time, upon a general denial only, the whole issue would have been only as to the validity of the Equator claim, and the right of the owners thereof to maintain the same against the government; but appellees having amended their answer, and set up a claim within themselv.es to the Copper Chief, the issue became then one between the Equator claim and the government, between the Copper Chief claim and the government, and between the Copper Chief claim and the Equator claim. Much of the evidence in such contests is an aim by either party, first, to maintain his own right, or, failing in that, to destroy the right of his adversary, as against the government; and much of the evidence in this case given by both parties — 67 — and many instructions offered had relation to the destruction of the adversary’s rights rather than to the maintenance of their own. Had the verdict of the jury been for the government, and that neither the plaintiffs nor defendants had established their rights or title to the ground in controversy, by reason of the fact that neither had complied with the acts of Congress and the laws of the territory, then it would have been necessary to have examined many of the errors complained of with reference to the introduction or rejection of the evidence and the instructions given and refused; then much of such evidence and instructions would have been pertinent to the issues as to whether the Equator was a valid location as against the location which was made by Kell and Evans, known as “Kell’s Nellie.” One of the assignments insisted upon is that of permitting Schuerman to be added as a party defendant, and allowing him to introduce^ in evidence his amended location to the .Copper Chief mining claim. We have not been able to see the necessity of adding Schuerman as a party. The cross-complaint could have been prosecuted and the action defended by Duke & Ferguson as well without as with him; or he might under the statutes of Arizona have been substituted for them. Paragraph 725 of the Revised Statutes of Arizona, after providing for the continuance of causes by or against the representative of deceased persons or their successor in interest, provides: “In case of any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action.” But how were the appellants affected by the action of the court in allowing Schuerman to be added as a party, and in what way were their interests prejudiced? The jury, finding for the Copper Chief mining claim, necessarily found that Ferguson made a location of the Nellie mining claim in 1879 -or 1880; that the annual assessment or representative work was done thereon in 1881; that the ground was not open to location at the time Kell undertook to make the location on January 2, 1882; and that consequently the Copper Chief claim being located in October, 1883, prior to the location of the Equator, in January, 1884, made the Copper Chief a subsisting and existing mining claim — 68 — from October 18, 1883. The only pretense that the appellants could make that they had been injured by the admission of Schuerman as a party was that which might result from' the introduction of his amended location of the Copper Chief, made on the 31st of August, 1896. That amended location notice did not inaugurate any new rights. It had relation to the original location, made October 18, 1883. In the amended location notice Schuerman says “that it was originally located October 18, 1883, by Ferguson, and that he makes this further amended certificate of location without any waiver of any previous acquired rights by said original locator, but for the purpose of correcting any errors in the original location or description of record thereof.” No serious contest was made by appellants to show that the Copper Chief claim was an invalid location in any other way or from any other reason than that the ground at the time the location was made was not open to location by virtue of the location of the Nellie claim by Kell and Evans in 1882. No special point is made by them that the acts performed by the locator were insufficient to make a location of a mining claim. They make no pretense that they were not aware of the location of the ground either by Ferguson or by Kell. Prior to the act of the legislative assembly of Arizona approved March 20, 1895, there was no penalty attached to a failure to 'record a location notice. The law of the territory prior to that time regulating the recording of location notices was in effect but a registration act. Location certificates recorded under it simply imparted constructive notice as any other registration act. So the amended location notice and certificate of location of Schuerman in August, 1896, gave him no new rights, and the introduction of it before the jury, although useless, was harmless. 3. Appellants assign as error the admission of the map and model in evidence. The map was prepared by an engineer (Powers) who was upon the ground and took the bearings and distances of certain monuments in relation to each other and to other objects, as they were pointed out to him by the locator Ferguson. From his field-notes he made the maps which were in evidence. Appellants insist that before a map can be admitted in evidence it must be proved to be correct. .That is not always the ease. If it is to be used in evidence as — 69 — a substantive and independent piece of evidence, tbe appellants are correct, but if it is only to be used as an illustration of what the witness details, no such proof is necessary; but in this instance the maps were proven to be correct representations of the lines connecting the objects pointed out to the surveyor by Ferguson. It is not necessary that the map should be able to stand the tests of Ferguson’s evidence as to the particular monuments being the correct monuments of the locations testified to by him. The maps were used in connection with the evidence of witnesses that they might show to the jury that which they were endeavoring by words to explain; and being used for that purpose, the practice is too common in nisi prius courts and too well-settled by appellate courts to meet with anything but our approval. 4. Inasmuch as the jury rendered a verdict supporting the Copper Chief claim, it will not be necessary for us to look into the evidence in regard to the acts performed to make the location of Kell’s Nellie or the validity of that location certificate; neither, will it be necessary to discuss the acts of location of the Equator or its certificate of location. The vast volume of evidence, the vast number of instructions asked, and the multitude of errors assigned, have relation to the conflict between Kell’s Nellie and the Equator, all' of which would have been important to have been considered had the verdict been in favor of the government, as we have before indicated; but appellants insist upon one class of errors with so much strength that, probably, it will not be improper for us, if not incumbent upon us, to give the matter some consideration, and that is, as to the law of resumption of annual expenditure or representation work on a claim before the year expires, when the work has not been completed for that year, or, further, where the work had not been attempted until the very last day of the year, and at a time when the owners of a claim about to be permitted to go derelict have entered upon the ground to make the annual expenditure. It is in evidence that on the last day of the year 1883 the Jordans went upon the ground in dispute for the purpose of being there early on the following morning to make a location of the ground; that they there found some of the owners of Kell’s Nellie, who on that day did some little work, probably insignificant in amount, yet who declared at the time — 70 — that, they were there for the purpose of assuming possession of the mine and completing the work to represent it for the year 1883; that they did continue the work for five or six days following the last day of December, 1883, until they had made an expenditure on the Nellie to the amount of about sixty dollars, when they went away and never returned. On the morning of January 1, 1884, and some time before eight o’clock on that day, the Jordans completed the monuments for the Equator and posted their notices, and did such acts, let us say without comment or investigation, as would give them a valid location to any unoccupied ground; and they now insist that the owners of the Nellie having abandoned their claim after they had performed only the amount of sixty dollars’ worth of work, it became forfeited, and their location of the Equator related back to the 1st of January. We do not so understand the law. Since the ease of Belk v. Meagher, 104 U. S. 279, and the multitude of cases following it, it has become a settled law that if the work be not completed on a mining claim in any part of the year in which the statute requires it to be done, but the owners thereof are upon the ground for the purpose of doing the'work before the year expires, and then prosecute the work to completion, the work so prosecuted will have relation to the year in which it should have, been done, and that such resumption will prevent the claim from being forfeited. Such resumption effectually prevents it from becoming forfeited, and no forfeiture can take place until after there is a failure to prosecute the work, after the same has been resumed. It is also well settled that until a claim has been abandoned or has been forfeited, no other location can be made of the ground. The decisions go so far as to make it a settled law that if the first locator resumes work at any time, even after the expiration of the year, but before other rights attach in favor of relocators, he preserves his claim. If this be the law, how can the appellants be heard to maintain that their location of the Equator is a valid one? By their own evidence, and by all the undisputed evidence in the case, had Kell’s Nellie been a proper location, which the Equator people made strenuous efforts to prove, yet that claim (Kell’s Nellie) did not become forfeited nor the ground become open to relocation, until after the- owners had quit — 71 — work, at. the expiration of the fifth or sixth day following the last day of December, 1883. There is no such thing as making a location of ground not open to relocation by reason of being already located, and' then, because of failure on the part of the owners to support that claim either by abandonment or forfeiture, have the relocation relate back to the original act.' In the location of mining claims there is no such thing as relation of acts, except such amendments as may take place in support of an original valid location. We would not be understood to say that a party, after once having resumed the work, can fitfully perform it, and pursue a portion of it at one time, quit and go away, and then come and resume again, so as to. take all of the following year to do the work which was necessary to be done for the year previous. But we do say that having resumed work, they must pursue it to completion ; and if they do not pursue it to completion, but leave the ground, it will then become forfeited, and not before. But if work is resumed before the expiration of the year, or before any interests have intervened, no forfeiture can occur until the work is- abandoned. When owners resume work, they must perform all that it would have been necessary for them to have performed in the previous year, in order to prevent a forfeiture. Hence, under any view of this ease, we cannot see how the appellants could have obtained a verdict from the jury or maintained their rights to the Equator claim against ther government, or against any locators, whether it be of the Copper Chief or Kell’s Nellie or Ferguson’s Nellie. The judgment of the district court is affirmed. Sloan, J., Doan, J., and Davis, J., concur.