Jordan v. Schuerman

• Decision Date: 11 June 1898
• Docket Number: Civil 610
• Citation: 53 P. 579,6 Ariz. 79
• Parties: F. E. JORDAN et al., Plaintiffs and Appellants, v. GEORGE H. SCHUERMAN, Defendant and Appellee
• Court: Arizona Supreme Court

53 P. 579

6 Ariz. 79

F. E. JORDAN et al., Plaintiffs and Appellants, v. GEORGE H. SCHUERMAN, Defendant and Appellee

Civil No. 610

Supreme Court of Arizona

June 11, 1898

APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. R. E. Sloan Judge. Affirmed.

The facts are stated in the opinion.

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

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

OPINION

STREET, C.J.

-- The appellee, George H. Schuerman, filed in the land office at Prescott, Arizona, on the thirtieth day of April, 1895, an application for patent to a certain mining claim in Verde Mining District, Yavapai County, Arizona, called the "Wonderful." On the third day of August, 1895, and within the period of sixty days of publication of application, appellants filed in said land office their contest to said application for patent to said Wonderful mining claim, on the ground that 3.66 acres of land embraced in the Wonderful mining claim was the property of appellants and within the limits of a certain mining claim belonging to them, called the Equator. Upon the filing of said contest the usual order was made in the land office stopping all further proceedings until the rights of the parties to that portion of said mining claim in contest could be ascertained by a court of competent jurisdiction.

[SEE DIAGRAM IN ORIGINAL]

Appellants thereafter instituted this suit against appellee, claiming title to, and the right of possession of, 3.66 acres of land embraced within the Wonderful mining claim, as well as within the Equator mining claim, as shown by a diagram accompanying this opinion, by virtue of said Equator location made on the first day of January, 1884.

The action of appellants against appellee is in the nature of a suit to quiet title, under the provisions of paragraph 3132 of the Revised Statutes of Arizona, approved March 17, 1891, which reads as follows: "An action to determine and quiet the title of real property may be brought by any one having or claiming an interest therein, whether in or out of possession of the same, against another who claims an estate or interest adverse to him." Within the time for answering such complaint the defendant, Schuerman, filed a general denial; and afterwards, on the twenty-third day of August, 1897, one day before the cause was called for trial, filed an amended answer and cross-complaint, setting up title to the land in dispute by virtue of the said Wonderful mining location made on the eighteenth day of October, 1883, and asked that his title thereto be quieted against the claim of appellants. Defendant further alleged in his answer that at a date less than sixty days prior to the eleventh day of November, 1896, being the owner of the Wonderful lode, and in possession thereof, he made an amended location thereof, and did on the tenth day of December, 1896, cause to be recorded in the office of the county recorder a certificate of such amended location, all of which was done in accordance with the laws of the territory of Arizona and the statutes of the United States. Defendant, as a further defense to plaintiffs' complaint, alleged that on the seventeenth day of October, 1883, the Copper Chief mining claim was located, and that on the first day of January, 1884, it was a good and valid subsisting mining claim; and all the acts done or attempted in the location of the Equator claim were done and performed within the limits and upon the territory of the said Copper Chief mining claim; and that therefore the Equator location was void.

The contest between these parties in reference to the Copper Chief and Equator claims, or the conflict of territory amounting to 6.14 acres of land in common to those two claims, was decided by this court at the present term, and is reported in Jordan v. Duke, ante, p. 55, 53 P. 197.

By reference to the diagram accompanying this opinion, which is identical with the diagram accompanying that opinion, it will be seen that the Copper Chief and Wonderful locations lie virtually parallel to each other, and practically at right angles to the Equator claim, and it will also be seen what ground is in dispute in each contest. The dispute as to the ground in contest in this action is of a similar nature to the dispute in the case referred to between the Equator and the Copper Chief, and, as in that case arises upon priority of location, -- in that case, priority of location between the Copper Chief and the Equator; in this case, between the Wonderful and the Equator. A portion of the ground in dispute is within the surface lines of a mining claim located in December, 1879, by W. H. Ferguson in the name of G. V. Kell, James Biddle, and O. B. Wilcox, called the "Wartoga," which, because of some supposed defects in the location, was relocated by the same locator in the name of the same claimants in February, 1880. G. V. Kell, under the theory that the annual expenditure had not been made on the Wartoga in 18...