Copper Queen Consolidated Mining Co. v. Stratton
| Decision Date | 12 June 1915 |
| Docket Number | Civil 1430 |
| Citation | 17 Ariz. 127,149 P. 389 |
| Parties | COPPER QUEEN CONSOLIDATED MINING COMPANY, a Corporation, Appellant, v. EMERSON C. STRATTON, Appellee |
| Court | Arizona Supreme Court |
Motion for rehearing denied February 10, 1916.
APPEAL from a judgment of the Superior Court of the County of Pima. Wm. F. Cooper, Judge. Reversed and remanded, with directions.
Messrs Ellinwood & Ross, for Appellant.
Mr John H. Campbell, for Appellee.
The appellant on the fourteenth day of May, 1913, filed a notice of intention to apply for a United States mineral patent for a group of mining locations including the Eagle No. 2 location. The Eagle No. 2 was located by F. Geesaman and Frank Helig on January 1, 1903. During the year 1905 F Geesaman acquired Frank Helig's estate in the claim, and thereafter, on July 23, 1912, he caused to be recorded an amended notice of said location. The description and boundaries contained in the amended location notice so posted and recorded covered the ground described in the first notice, and included no additional territory. The appellant acquired the Eagle No. 2 claim by purchase after the location notice was amended and prior to the date of filing notice of its application for patent. Within the time prescribed by law the appellee filed his adverse in the land office against the granting of a patent to the applicant for the land embraced in the Eagle No. 2 location, averring that such land is the property of appellee, acquired by him through a mining location made by him on the seventeenth day of July, 1907, as the Oversight mining claim, and alleging that the ground was, on said date, subject to location as a mining claim. The sufficiency of the adverse is not in question. In due time the appellee commenced this action, as plaintiff, in support of his adverse, and in his complaint alleged that the Eagle No. 2 location, made on the first day of January, 1903, is illegal and void, because the ground covered by such location was formerly covered by the Lafayette mining claim, and such mining claim was abandoned as forfeited when the Eagle No. 2 location was made, and the location notice of the Eagle No. 2 claim does not state that the new location is located as abandoned property, and because the other required acts of location were not performed by the locators of the Eagle No. 2 claim. Also, as a second cause of action, the plaintiff alleges that the defendant, appellant, and its grantors, forfeited and lost said claim by failing to do, or cause to be done, the amount of annual labor required to be done by law for the year 1906, and failed to resume such work during the year 1907 prior to July 17, 1907, when plaintiff located the ground as the Oversight claim. The defendant answered, taking issue upon the matters set forth in the complaint as causes of action. No questions are raised upon the pleadings. During the course of the trial the parties in open court stipulated as follows:
"That on the twenty-first day of February, 1900, T. G. Condon located the ground now claimed as the Eagle No. 2 mining claim as the Lafayette mining claim, and that the said Condon performed all acts necessary to a valid location of said claim, and that the same was and remained a valid location until the year 1902, when it was forfeited and abandoned, and that the ground embraced within the Eagle No. 2 mining claim was, prior to January 1, 1903, forfeited and abandoned ground."
Thereupon plaintiff offered evidence tending to prove his location of the Oversight claim on July 17, 1907; that he performed the required annual work representing the claim for each year required after the date of his said location; that he was a qualified locator; and the filing of his adverse claim and other evidence tending to establish a prima facie right to recover, and rested. Thereupon the defendant offered in support of its right the original location notice of the Eagle No. 2 claim dated January 1, 1903. To which evidence the plaintiff objected upon the grounds that such location notice is void, for the reason said notice does not state, as the law in force at that time required such notice to state, if the whole or any part of the location is located as abandoned property, the fact appearing from the stipulation that the property was abandoned or forfeited property on January 1, 1903. The objection was sustained by the court, and the location notice was rejected. Thereupon the defendant offered the said original location notice with an amended location notice of the Eagle No. 2, dated July 13 and recorded July 23, 1912, and in connection with such offer it offered to prove by competent evidence the performance by it or its grantors of all necessary acts of location of the Eagle No. 2, and the performance by its grantors or by it of the annual work on the claim for each year from the date of the location to the time of giving notice of its application for patent. All of which offers were objected to on the same ground as assigned in the objection to the original location notice, and such objection or objections the court sustained, and the offers of proof were rejected. The court thereupon directed a verdict for plaintiff and rendered judgment accordingly. From the judgment and from the order refusing a new trial the defendant has appealed, and as grounds for reversal, among others, has assigned the order rejecting the original location notice of the Eagle No. 2 claim, and the order rejecting the said offers of proof as error.
We will notice only the assignments based upon the rejection of the original location notice and the original with the amended notice.
It seems to be conceded that the said location notice and the said offers of proof were rejected by the court solely upon the ground that the original Geesaman and Helig location notice of the Eagle No. 2 claim was void, because it failed to state if the location was located in whole or in part as abandoned property, the fact appearing from the stipulation of the parties that at the time the said location was made the ground was abandoned or forfeited property. The appellee makes no claim to have acquired any rights under the T. G. Condon location of the Lafayette claim. His rights are based solely and exclusively upon his Oversight location, which was commenced on the seventeenth day of July, 1907. He had no claim to the ground prior to that date, and makes none. He admits that appellant's grantors attempted to locate the ground as the Eagle No. 2, commencing such location on January 1, 1903, but denies the validity of such location to affect a legal appropriation of the ground by appellant's grantors, and serve to close such ground from location as open public domain, for the reason the locators failed to post and record a location notice containing a statement of facts required by the law then in force to be stated in the notice of a location of property located as abandoned property. The ruling of the court on the objection recognizes the legal proposition as established by the statute, to the effect that when mineral ground has once been segregated from the public domain by a valid mining location, and thereafter reverts to the public domain by reason of the abandonment or forfeiture of the location by the first locator, any subsequent locator of the ground so abandoned or forfeited and so open to location would acquire no rights thereto unless he located such ground as abandoned property; that such ground cannot thereafter be otherwise located by anyone. In other words, the ruling asserts that while the mineral lands revert to the public domain by abandonment, or forfeiture of a valid location, its character is so changed by such valid location so that after such reversion it cannot be relocated as other mineral lands of the public domain, but requires a different form of location notice, stating a fact preserving this peculiar character derived from the prior location, and giving notice to the world that the ground was of that character of the public domain when the subsequent location was commenced.
Section 2324 of the Revised Statutes of the United States, volume 5 (Fed. Stats. Ann., p. 20, U.S. Comp. Stats. 1913, sec. 4620), recognizes a different rule, providing:
"Upon a failure to comply with these conditions (conditions of location and performance of annual work), the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location."
It is nowhere claimed in this case, and certainly not asserted in the pleadings nor in the objection, that appellee is the original locator, T. G. Condon, or that he bears the relation of heir, assignee, or legal representative to the original locator, T. G. Condon, nor that as either original locator, or heir, assignee, or legal representative of the original locator he resumed work upon the claim after the failure that caused the abandonment or forfeiture of the claim and before appellant's grantors relocated the same as the Eagle No. 2.
In Del Monte Mining etc. Co. v. Last Chance Mining etc. Co., 171 U.S. 55, 77, 43 L.Ed. 72, 18 S.Ct. 895, 903, the court said:
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