Copper State Mining Co. v. Kidder

Decision Date31 March 1919
Docket NumberCivil 1663
PartiesCOPPER STATE MINING COMPANY, a Corporation, Appellant, v. H. E. KIDDER and F. BURNS, Appellees
CourtArizona Supreme Court

APPEAL from a judgment of the Superior Court of the county of Graham. A. G. McAlister, Judge. Affirmed.

Mr John B. Wright, for Appellant.

Mr. F C. Struckmeyer, for Appellees.

OPINION

ROSS, J.

The appellant, claiming to be the owner of the Rough Rider and La Union mining claims, situate in the Bunker Hill mining district, Graham county, brought this action to establish and quiet its title thereto as against appellees, who, it is charged by complaint, "wrongfully and without right entered in and upon the said Rough Rider and La Union claims and attempted to locate two mining claims, the said mining claims of defendants, being named by them the "new York and California No. 1" and the "New York and California No. 2."

Appellees, in their answer, as an affirmative defense, set forth that the Rough Rider and La Union as valid mining claims "had ceased and determined, and had become of no effect, prior to the location of said property by defendants, by reason of the failure of the plaintiff to comply with the requirements of law with respect to location and assessment work upon said property," and prayed that their title to the New York and California Nos. 1 and 2 be quieted.

It will thus be seen that the issue made by the pleadings was as to whether or not the appellant had done and made $100 worth of work and improvements for the year 1915 upon each of the mining claims known as Rough Rider and La Union. The case was tried to a jury, to which four interogatories were submitted as follows:

"(1) Did the plaintiff corporation perform work and labor to the value of one hundred dollars upon the Rough Rider claim for the year 1915?

"(2) The same question with reference to the La Union mining claim.

"(3) Did defendants perform all of the acts of location in conformity with the statutes of Arizona in the attempted location of the New York and California No. 1 claim?

"(4) The same question by the jury in the and California No. 2 claim.

The first two questions were answered by the jury in the negative, and the last two in the affirmative. This appeal is from the order overruling a motion for a new trial, and from the judgment quieting the title of appellees to the New York and California Nos. 1 and 2 mining claims.

The errors assigned are three, as follows:

1. "The court erred in its refusal to grant appellant's motion for judgment in its favor and for an instructed verdict in its favor upon the following grounds: . . . "

The trouble with this alleged error is that it does not seem to be predicated upon the record. Appellant has not pointed out to us any motion made by it "for judgment in its favor and for an instructed verdict in its favor." If any such motion was made, or if any order of the court denying such motion was entered, they do not appear in the abstract and are not noticed in the clerk's minutes as certified to this court, nor indeed may they be found anywhere in the record. Since no such motion was made on the grounds set forth, or any other grounds, no ruling thereon by the court was possible, and for that reason this assignment must fail.

2. It is next contended that the court erroneously instructed the jury that the burden of proof was upon the appellant to show that it had done the annual assessment work upon the Rough Rider and La Union mining claims for the year 1915. Such an instruction was in fact given. Now, it is well settled that where a mining location is made, as in this case, upon ground as abandoned or forfeited for failure to do the annual work or improvement, the burden of showing abandonment or forfeiture is upon the junior locator. This has been the ruling of the supreme court of the United States, as well as our highest court. Hammer v. Garfield Mining Co., 130 U.S. 291, 32 L.Ed. 964, 9 S.Ct. 548; Providence Gold Mining Co. v. Burke, 6 Ariz. 323, 57 P. 641; Cunningham v. Pirrung, 9 Ariz. 288, 80 P. 329.

Appellees admit that the court misdirected the jury, but...

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3 cases
  • Layton Mfg. Co. v. Dulien Steel, Inc.
    • United States
    • Oregon Supreme Court
    • February 25, 1977
    ...See also, Jensvold v. Chicago, Great Western R. Co., 236 Iowa 708, 18 N.W.2d 616, 619 (1945). Similarly, in Copper State Mining Co. v. Kidder, 20 Ariz. 224, 179 P. 641, 643 (1919), the court adopted 'the usual rule . . . that the burden of proof is upon him who assumes it by opening and clo......
  • Kramer v. Taylor
    • United States
    • Oregon Supreme Court
    • February 10, 1954
    ...is upon the party asserting such forfeiture. Whalen Consol. Copper Mining Co. v. Whalen, C.C., 127 F. 611; Copper State Mining Co. v. Kidder, 20 Ariz. 224, 179 P. 641, 642. We also take heed of the rule that a forfeiture cannot be established except upon clear and convincing proof of the fa......
  • Gibson v. Board of Sup'rs of Cochise County
    • United States
    • Arizona Supreme Court
    • March 31, 1919
    ... ... premature. Note B in State v. Superior ... Court, 111 Am. St. Rep. 925-968; s.c., 40 Wash. 555 2 ... ...

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