Jeffords v. Hine

• Decision Date: 09 July 1886
• Docket Number: Civil 143
• Citation: 11 P. 351,2 Ariz. 162
• Parties: THOMAS J. JEFFORDS, Plaintiff and Appellant, v. CHARLES F. HINE, Defendant and Respondent
• Court: Arizona Supreme Court

11 P. 351

2 Ariz. 162

THOMAS J. JEFFORDS, Plaintiff and Appellant, v. CHARLES F. HINE, Defendant and Respondent

Civil No. 143

Supreme Court of Arizona

July 9, 1886

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise.

Affirmed.

Smith &amp Campbell, and C. C. Stephens, for Appellant.

Thos Mitchell, for Respondent.

Shields C. J.

OPINION

The facts are stated in the opinion.

SHIELDS, C. J.

This controversy as to a right of possession and ownership of a certain mining property in Tombstone mining district, Cochise county. The contention was commenced and continued for years in the land department of the United States, and has finally been transferred to the courts of this territory. It is not deemed necessary or important to refer with particularity in this case to the history of such controversy, so carried on, but simply to state certain well-established facts, which will explain our decision, and show upon what ground it rests.

In November, 1875, the plaintiff undertook to locate, and claims to have done so, the mining property in question, giving thereto the name of the "Bronkow Mine." He had the mine surveyed, and in other things claims to have complied with the laws relative to the location of mines. While the plaintiff was taking the various steps to procure a patent, and on October 4, 1880, the register of the United States land-office at Tucson was suspended by order of the president of the United States. No successor to such register was regularly appointed by the president until May, 1881, but in the meantime C. E. Daly, who was at that time receiver of public moneys of the local land-office at Tucson, assumed also to act as register of the land-office, claiming authority to do so by a communication or order from the land-office in Washington. The receiver named continued to act as register, and discharged the duties of said office, from the time of the suspension of the register up to November 16, 1880, when the commissioner of the general land-office at Washington informed him that it was not lawful for him to perform the functions and duties of register. When the successor to the suspended register was appointed, plaintiff and his application for patent, and the proofs accompanying same, submitted to the newly-appointed register, who approved the same, and ordered publication to be made, which was done. The plaintiff claims that from thenceforward his proceedings were such as to entitle him to a patent.

The rights of the defendants arise as follows: While Daly was acting as register the defendants, acting upon the theory that plaintiffs had abandoned the property in question, filed in the land-office at Tucson an application for a patent for the same mining claim in question, but by the name of the "Dean Richmond Claim." Daly, acting as said register, and before the receipt by him of the notification that he had no right to act, ordered the publication of the notice of defendants for a patent to said Dean Richmond claim. To this application the plaintiff filed no adverse claim, presumably acting on the belief that Daly was a mere usurper, and without any authority to do anything of the kind whatever as register.

On May 18, 1881, as stated, the successor of the suspended register was appointed, and entered upon his duties, and on that day ordered a publication of the application of the plaintiffs for a patent to the Bronkow mine. August 12, 1881, the defendants filed in the local land-office a motion to set aside such action as the register in ordering such publication. This motion was denied by the register, and the defendants appealed therefrom to the commissioner of the general land-office at Washington. On the hearing of this appeal the commissioner reversed the decision of the register of the land-office at Tucson, and ordered that the motion of the defendants there made, to set aside the order of the register directing the publication of the plaintiff's notice of application for a patent to the Bronkow mine, be granted. The commissioner seems to have passed fully and squarely upon all questions then in controversy between the parties, holding that the Bronkow application, although first presented, was of no effect against, and opposed no bar to, the reception of the application for the Dean Richmond; also that the Bronkow application was subsequent to that of the Dean Richmond; and further decided that C. E. Daly, when he acted as register, was a de facto officer, and that the publication ordered by him while acting as register of the local land office was a legal publication, and that the rights of the plaintiff were concluded by such publication. The result was that the defendants, the claimants of the Dean Richmond lode, were directed by the commissioner of the land-office to complete their entry. From this decision the plaintiff appealed in due time to the secretary of the interior department. The secretary of the interior, upon the hearing before him, in all things affirmed the decision of the commissioner of the land-office, and ordered that the defendants, as such claimants of the Dean Richmond, should be permitted to complete their entry, and that a patent issue to them for the Dean Richmond claim, which covered the Bronkow location. After such action and decision of the secretary of the interior the complaint in this case was filed in the district court in and for Pima county.

The complaint in the case asks a rehearing of the whole controversy, upon the ground that the land department of the government erred in its decision, and especially in holding that the application tendered by the defendants was proper and in allowing them to complete their entry. It is also said to have been error on the part of the land department to hold that Daly was, at the time he took the steps referred to, a de facto officer; and also in holding that the Bronkow application was subsequent to that of the Dean Richmond. Other errors are said to have been committed by the land department, but these are the essential ones, and all that require consideration. The complaint prays that a decree be rendered that the complainant is an equitable owner of the land in controversy, and that the defendants be held to be trustees of the legal title for the benefit of the plaintiffs, and that they be required to deed and convey the premises to the plaintiff. A decree was rendered in the court below dismissing the...