Jordan v. Duke

• Decision Date: 16 April 1898
• Docket Number: Civil 579
• Citation: 6 Ariz. 55,53 P. 197
• Parties: F. E. JORDAN et al., Plaintiffs and Appellants, v. JOHN DUKE et al., Defendants and Appellees
• Court: Arizona Supreme Court

53 P. 197

6 Ariz. 55

F. E. JORDAN et al., Plaintiffs and Appellants, v. JOHN DUKE et al., Defendants and Appellees

Civil No. 579

Supreme Court of Arizona

April 16, 1898

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. J. D. Bethune, Judge. Affirmed.

The facts are stated in the opinion.

F. E Corbett, Herndon & Norris, and John J. Hawkins, for Appellants.

It may be admitted that under the petition of Schuerman, and with the consent of defendants, the court had power, under section 725, had the application so to do been made within the proper time, to substitute Schuerman as the sole defendant in the action. The statute expressly provides that in the case of a transfer of interest pending suit the cause may be continued either in the name of the original party or in the name of the transferee; and nowhere does it appear in the statute that any such action may be continued in the name both of the original party and the transferee. Estee on Pleading, sec 4494; Virgin v. Brobaker, 4 Nev. 31; Noss v Shear, 30 Cal. 476; Walker v. Felt, 54 Cal. 386.

The court erred in permitting the introduction in evidence, and in permitting to be exhibited to the jury, a certain map and a certain model of the ground prepared by the defendants, for the following reasons: It is plain from the testimony introduced in the action at the time the map and model were offered, and at other times throughout the progress of the case, that this map and model were made upon the statements and representations made to the persons who constructed the map and model by W. H. Ferguson, who, it appears from all the evidence in the case, was not the locator of all the claims shown upon the map and model, -- who was in fact the locator of only three of such claims.

In the case of Bunker Hill etc. Min. Co. v. Schnelling, 79 F. 263, the following doctrine is laid down upon the subject of admission of maps, and the same rule will apply to a model. The decision of the court is as follows: "Another point made on behalf of the plaintiff in error, is that the court, against the objection and exception of the plaintiff in error, admitted in evidence a diagram of the stope where the accident occurred, made by one Easton upon the representations of witness Powers and others as to its appearance after the accident, and the court admitted it in connection with his testimony only as his version of the works, which the jury might consider for what it was worth."

The rule is that such a map and model as were offered and admitted in this case may be taken by the jury for what it is worth, as the version or opinion of witnesses making the same, but even under this broad rule the action of the court in admitting this map and model cannot be upheld, for the reason that after the map and model were admitted then, over the objection of the plaintiffs, the court permitted all the witnesses who testified for the defendant to testify from the map or model, using the same with their testimony, and thereby assuming that the map and model correctly delineated the ground in controversy and all other matters which they purported to represent.

If the map were introduced as a part of the testimony, and for the purpose of explaining the testimony of the witnesses who made it, and if it was competent for that purpose, it cannot be argued that it was therefore competent for all purposes, and that all witnesses had a right to testify thereupon. See Commonwealth v. Switzer, 134 Pa. St. 383, 19 A. 681; Kansas City Railroad etc. Co. v. Smith, 90 Ala. 25 24 Am. St. Rep. 753, 8 So. 43; Burwell v. Sneed, 104 N.C. 118, 10 S.E. 152; Hoge v. Ohio R.R. Co., 35 W.Va. 562, 14 S.E. 152; Poling v. Ohio River Railroad Co., 38 W.Va. 645, 18 S.E. 782, 24 L.R.A. 215; Turner v. United States, 66 F. 289; Wood v. Willard 36 Vt. 82, 84 Am. Dec. 659.

Mere possession of the mineral land is good as against a mere intruder, but not as against one who has complied with the laws and made a legal location. Atwood v. Fricot, 17 Cal. 37, 76 Am. Dec. 567; English v. Johnson, 17 Cal. 107, 76 Am. Dec. 574; Hass v. Winder, 30 Cal. 349; Du Prat v. James, 65 Cal. 556, 4 P. 562; Golden Fleece etc. Co. v. Cable etc. Co., 12 Nev. 312; Noyes v. Black, 4 Mont. 527, 2 P. 769; Funk v. Sterrett, 59 Cal. 613; Patchen v. Keeley, 19 Nev. 404, 14 P. 347.

A location not made in accordance with the provisions of the United States statutes and local laws never becomes a location to any extent whatever, and vests no title or rights in any claimant thereof. The ground attempted to be located, not having been located according to law, remains the public domain of the United States, subject to entry and location by any citizen.

"The right to the exclusive possession of mineral land not actually held in possessio pedis may be acquired only by a legal location thereof." Becker v. Pugh, 9 Colo. 589, 13 P. 906.

"Mere possession of mining ground without location is good as against an intruder who made no location." Neuebaumer v. Woodman, 89 Cal. 310, 26 P. 900.

And, conversely, mere possession not based on a valid location, is not good as against one who has made a location on the land in the manner prescribed by law, and the possession of such locator shall prevail over such prior possession. Garthe v. Hart, 73 Cal. 541, 15 P. 93; Belk v. Meagher, 104 U.S. 279, 26 L.Ed. 739.

Discovery with possession, but without location, is not valid as against a subsequent peaceable location. Horsewell v. Ruiz, 67 Cal. 111, 7 P. 197; Gleeson v. Mining Co., 13 Nev. 442.

A party to a suit of this character involving the possession of a mining claim is not required to prove representation work upon the claim after having proved the proper location thereof, unless it be pleaded by the opposite party that the mining location which is relied upon has been abandoned and forfeited by reason of the failure to perform representation work, and there being no such issue in this case, according to the pleadings, it was unnecessary that any party should have introduced any evidence showing the performance of annual work upon either the Copper Chief or the Equator claims. The instruction of the court goes outside of the pleadings and issues in the case and instructs the jury that it may find against the Equator location, should they find that one hundred dollars' worth of work had not been performed thereon in each year during the several years mentioned in the instruction, thereby informing the jury that they could decide the case upon an immaterial question of fact and upon points not raised by pleadings. "The failure to do annual labor must be specially pleaded." Renshaw v. Switzer, 6 Mont. 464, 13 P. 127, 15 Morr. Min. Rep. 345.

"A later location must plead a failure to do the work prior to such location, thereby showing a forfeiture." Bishop v. Baisley, 28 Or. 119, 41 P. 936.

The jury was informed that if the original Copper Chief location and the original Equator location were both invalid, and that therefore neither of the parties to this suit ever had any title to the ground prior to the institution of any proceedings in this action, then the jury could still in this same action find in favor of Schuerman, who was not a party thereto, by reason of the title acquired by him after the institution of all proceedings. This was error. If in such an action as this the jury should find that the locations in conflict are both invalid, the United States statutes provide that the jury shall find in favor of the United States.

"Neither party in an adverse suit can gain any rights by acts performed subsequent to the filing of the adverse claim." Moxon v. Williamson, 2 Mont. 421, 12 Morr. Min. Rep. 602.

Franklin E. Brooks, W. H. Barnes, and T. W. Johnston, for Appellees.

The amendment of pleadings during the progress of a cause and the admission of new parties is a matter entirely within the discretion of the court. It is true that this is a judicial discretion, and therefore open to review; but in the case at bar it is evident that the discretion was deliberately exercised, and that the amendment and introduction of the new party was made with deliberation, and under terms which were very severe upon the appellees. The discretion not having been abused, the action of the trial court will not be disturbed by this court. Harrington v. Connor, 51 Neb. 214, 70 N.W. 911, 6 Am. & Eng. Corp. Cases, 609; People v. Sexton, 37 Cal. 532.

As to the performance of annual labor, the language of the statute is express and definite. Upon a failure to comply with these conditions (viz., the performance of one hundred dollars' worth of work between the first day of January and the last day of December of each year), the claim or mine upon which such failure occurs 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 will be borne in mind that this is a portion of an act which provides for one hundred dollars' worth of work in each calendar year, but the only penalty for failure so to do is to make the ground, if the locator does not resume work thereon, subject to relocation thereon by others. This forfeiture is not an absolute one, but rather one upon condition. If the condition be performed, -- i.e. re-entry before location by another, -- the forfeiture never becomes operative. If, however, before such re-entry the ground should be located by another, then the forfeiture would become absolute. There is no need of resort to the well-recognized doctrine that forfeitures are not favored by the courts, for the statute...