Allyn v. Schultz

• Decision Date: 05 May 1897
• Docket Number: Civil 545
• Citation: 48 P. 960,5 Ariz. 152
• Parties: NOYES B. ALLYN, Defendant and Appellant, v. BERTHA SCHULTZ et al., Plaintiffs and Appellees
• Court: Arizona Supreme Court

48 P. 960

5 Ariz. 152

NOYES B. ALLYN, Defendant and Appellant, v. BERTHA SCHULTZ et al., Plaintiffs and Appellees

Civil No. 545

Supreme Court of Arizona

May 5, 1897

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Pinal. Owen T. Rouse Judge.

Reversed.

Selim M. Franklin, for Appellant.

J. S Sniffen, for Appellees.

Hawkins J. Baker, C. J., and Bethune, J., concur.

OPINION

Statement of facts:--

On the eighteenth day of March, 1895, Noyes B. Allyn made application before the United States land office at Tucson for a patent for the Mohawk mining claim, situated in Pinal County, Arizona. Within the time allowed by law, the appellees filed in the land office their adverse claim to a portion of the ground, asserting it to be a part of the New Year mining claim, which was owned by them. This action was brought by appellees under section 2326 of the Revised Statutes of the United States to determine their rights to the ground in conflict. The case was tried before the court below without a jury. The judgment was in favor of the plaintiffs (appellees), and the defendant (appellant) has sought this appeal.

The following diagram will show the relative positions of the Mohawk and New Year claims, and the ground in controversy.

The Mohawk claim was located on December 7, 1881, by the plaintiff Frank Schultz and one R. C. Wood. It is under this location that defendant, Allyn, claims title. The New Year claim was located on January 1, 1885, by plaintiff Frank Schultz. It is under this location that all the plaintiffs claim title. Frank Schultz sold one-fourth interest in the Mohawk to plaintiff Bauer in September, 1882, and his remaining interest to one Eugene W. Aram on July 31, 1882. Since 1882 he has had no further interest in the Mohawk Mine. Wood, the other locator, conveyed all his interest to one Lee H. Newton on January 15, 1883, since which time he has had no interest therein, and since which time he has never been on the ground. In September, 1884 Newton conveyed his one-half interest in the Mohawk claim to Andrew Damm and James G. Fraser. So that in September, 1884, Damm, Fraser, and John Bauer were the owners of the Mohawk claim. In 1884,--about the time that Damm and Fraser purchased their interest,--the plaintiff Schultz went onto the Mohawk claim with them, and pointed out to them its monuments. The monuments he then pointed out are the same as shown by figures 1, 2, 3, 4, 5, and 6, on the foregoing diagram. Schultz then explained to both Damm and Fraser that he believed the ledge swung around to the west, and for that reason he had placed the monuments of the Mohawk in that particular position. About three months after Schultz had pointed out and designated to Damm and Fraser where the monuments of the Mohawk claim were, and the boundaries of the claim had been agreed upon between them, he (Schultz) located the New Year Mine. Prior thereto the ground covered by the New Year claim was unappropriated public land, and it was unappropriated when Schultz pointed out the monuments of the Mohawk in 1884. The location notice of the New Year bears date January 1, 1885. It describes the claim as joining the Mohawk on the east. Later in the year 1885, Damm, Fraser, and Bauer, as owners of the Mohawk claim, had a survey made of the same by Gustavus Cox, a United States mineral surveyor. This surveyor erected regular mineral monuments at the points where the old monuments were. Each of these monuments consisted of a post four by four inches and four feet high, surrounded by a mound of stones. Cox also made a survey and map of the adjoining claims at the time. It shows the Mohawk Mine to be situated and located as now claimed by defendant, Allyn. The monuments so erected by Cox, Damm, and Fraser have remained there ever since. They have been known to every one as marking the boundaries of the Mohawk claim. Andy Collins, Martin Derrig, Thomas L. Bailey, Damm, Fraser, and many other witnesses testified that those monuments of posts and stones were known all around that neighborhood as the Mohawk monuments. In 1890, Thomas Armstrong, a mining engineer, was employed by the Mohawk Mining Company to make a contour map of all the claims belonging to that company, and of the adjoining claims. In making this survey, in 1890, he met plaintiff Schultz on the Mohawk Mine. Schultz then pointed out to Armstrong the monuments of the Mohawk, and Armstrong made a survey of the claim from the monuments as pointed out by Schultz. The monuments so pointed out by Schultz at that time were the identical monuments which Cox, Damm, and Fraser had erected in 1885. A few weeks later, and about August, 1890, Armstrong made a map from the surveys he then made, which map shows all the mines of the Mohawk Mining Company. It also shows the Mohawk and the New Year claims, as surveyed by him from the monuments so pointed out by Schultz. This map is in the records of this case, and shows the location of the Mohawk to be as claimed by defendant, Allyn. In January, 1892, the defendant, Allyn, procured from the plaintiffs Susana and John Bauer an option to purchase their interest in the Mohawk claim, and also the interest of their co-owners Damm, Fraser, and Stephens. The purchase price was to be twenty-five thousand dollars. At or about the time of the execution of this agreement, the said Bauer, Damm, Fraser, and Allyn, and also Thomas L. Bailey, who was agent for Mr. Allyn, met at Tucson, and had an extensive conversation about the Mohawk claim and its monuments and boundaries. At this meeting a sketch-map was drawn, which showed the location of the Mohawk claim relative to the Mammoth and New Year. This sketch showed the Mohawk to be located in the same manner as did the map of Cox and of Armstrong, and it showed that the ground in dispute in this action was included within the limits of the Mohawk Mine. The plaintiffs Susana and John Bauer impressed on Mr. Allyn that this was a fact, and that the sketch correctly outlined the position and boundaries of the Mohawk Mine. It was further agreed at the same time that Damm should take defendant, Allyn, and Mr. Bailey out to the Mohawk ground, and show them the mine and the monuments of the claim. And both the Bauers and Fraser assured Mr. Allyn that they would stand by and indorse as correct everything that Damm showed him. This is not denied by the plaintiffs in the case. Accordingly, in January, 1892, Damm, as the representative and agent of all his co-owners, and particularly Susana and John Bauer, went out to the Mohawk claim with Allyn and Bailey. He took them around the claim, and pointed out to them each of the corner and center end monuments. These monuments were at the points marked 1, 2, 3, 4, 5, and 6 on the diagram herein. They were the same post monuments which had been erected in 1885, and were at the same places where Schultz had, in 1884, pointed out the original Mohawk monuments to Damm and Fraser. The boundaries of the Mohawk Mine as then designated and shown by Damm to Allyn and Bailey were the same as were described in the map of Cox and in the map of Armstrong, and now claimed by Allyn. Mr. Allyn then took possession of the Mohawk claim, under his option to purchase, and put Thomas L. Bailey in charge of it, and had him do development work thereon from that time on until July 15, 1892, when he bought the mine. While Bailey was thus in charge of the mine, doing work thereon,--to wit, on June 11, 1892,--and while Andrew Damm was also at the mine with him, Frank Schultz came on the ground, and took dinner with him. As he had been one of the original locators of the Mohawk claim, and as he was the sole locator of the New Year claim, and was then an owner thereof, Mr. Bailey requested him to show him the monuments of the Mohawk and the dividing-line between the Mohawk and the New Year. Schultz complied with this request. He took Bailey around the Mohawk claim, and pointed out to him each of the corner and center end monuments of the Mohawk claim. He pointed out to Bailey the identical four by four post monuments which Cox, Damm, and Fraser had erected in 1885, and he (Schultz) told Bailey that those were the true and correct corner and center end monuments of the Mohawk claim. Mr. Bailey communicated these facts to Mr. Allyn. Bailey and Schultz then went to work to ascertain and determine the boundary-line between the Mohawk and the New Year. Schultz posted himself at the southeast corner of the Mohawk claim (figure 6 on the foregoing diagram), from which point he could distinctly see the northeast corner monument of the Mohawk (figure 3 on the diagram). Bailey started from this southeast monument, carrying with him an ocatillo stick with a rag tied at the end of it for a flag. He proceeded in the direction of the northeast monument. When about midway between the two monuments he stopped and faced Schultz, who remained at the southeast monument. Schultz motioned with his hat from one side to another until Bailey was in a direct line between the two monuments. Then Bailey stuck his stick in the ground and built a small monument of stones around it. Schultz came up, and it was agreed by him that this monument and the line sighted from the southeast and northeast monuments of the Mohawk was the correct boundary-line between the Mohawk and the New Year. The line is the line marked 3, 6, on the foregoing diagram. And so it was agreed that the New Year claim did not take in any of the ground of the Mohawk as bounded by the post...