Kinney v. Fleming

• Decision Date: 15 March 1899
• Docket Number: Civil 636
• Parties: CLARA KINNEY, Plaintiff and Appellant, v. JAMES A. FLEMING et al., Defendants and Appellees
• Court: Arizona Supreme Court

56 P. 723

6 Ariz. 263

CLARA KINNEY, Plaintiff and Appellant, v. JAMES A. FLEMING et al., Defendants and Appellees

Civil No. 636

Supreme Court of Arizona

March 15, 1899

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Gila. F. M. Doan, Judge. Affirmed.

The facts are stated in the opinion.

J. S Sniffen, and Owen T. Rouse, for Appellant.

No mere relocation for forfeiture made before the forfeiture actually attaches by actual default would be valid to defeat the claim. Jupiter Min. Co. v. Bodie Cons. Min. Co., 7 Saw. 96.

Where one locates a claim before the former owner is in default such relocation does not lay the foundation for a valid claim, nor does the relocation become valid upon the first locator's subsequent default. It is a mere nullity. Slavonian Min. Co. v. Perasich, 7 F. 331; Belk v. Meagher, 3 Mont. 65; Belk v. Meagher, 104 U.S. 279.

A failure to comply with local rules and regulations and customs does not work a forfeiture unless the rules expressly so declare; and where parties claim a forfeiture under local rule or custom, the rule is to be strictly construed against a forfeiture. Rush v. French, 1 Ariz. 99; Jupiter Min. Co. v. Bodie Cons. Min. Co., 7 Saw. 96; Jupiter Min. Co. v. Bodie Cons. Min. Co., 11 F. 680; Oreamuno v. Uncle Sam Min. Co., 1 Nev. 215; Colman v. Clements, 23 Cal. 248.

Mere failure to do work, while it may cause a forfeiture, does not constitute an abandonment. Lakin v. Sierra Buttes G.M Co., 25 F. 337; Morenhaut v. Wilson, 52 Cal 263; Depuy v. Williams, 26 Cal. 309.

Edwards & Stoneman, for Appellees.

In proving the identity of a mining claim the rule is, that monuments will control courses and distances. McEvoy v. Heyman, 15 Min. Rep. 397; Cullacott v. Cash, 8 Colo. 179; Book v. Justice, 58 F. 106; Higueras v. United States, 5 Wall. 827; Howe v. Bass, 2 Mass. 380, 3 Am. Dec. 59; Bradford v. Hill, 1 Hayw. 30, 1 Am. Dec. 546.

If the center line be sufficiently described, it is enough to state that the claim is for a specified number of feet on each side of the line. Carter v. Bacigalupi, 83 Cal. 187, 23 P. 361; Duryea v. Boucher, 67 Cal. 141, 7 P. 421; Bennett v. Harkrader, 158 U.S. 441, 15 S.Ct. 863.

Notices of mining claims should be liberally construed. Book v. Justice, 58 F. 107.

OPINION

STREET, C.J.

-- 1. The appellant brought an action in the district court of Gila County against appellees to quiet title to a certain mine or mining claim, located on the twelfth day of September, 1896, called the "Deep Down Mining Claim." Defendants made answer, and denied the validity of the location of the Deep Down mining claim, but admitted the acts of the location thereof. As a further answer they alleged that they were in possession of the ground covered by the Deep Down mining claim, by virtue of being the owner of a mining claim called the "Skull," located on the fourth day of September, 1896. Said action was not brought as an adverse, pursuant to an application for patent. Neither party at the time of the commencement of the action or at the trial thereof had made application for patent to either of these claims. On the trial of the case plaintiff asserted, and adduced some evidence to prove, that at the time defendants had located the Skull mining claim the ground was not open to location, by reason of the same having been located on the 13th of June, 1896, by A. O. Crane, John Kasser, George Gessell, and W. J. Grandstaff, and known as the "Damfino Mining Claim"; that the ground covered by both the Skull claim and the Deep Down claim was the same as that covered by the Damfino mining claim; and that the ground was not open to location or relocation until the expiration of ninety days from the 13th of June, 1896, -- to wit, the 11th of September, 1896. It was asserted by the defendants that the Damfino mining claim, located on the 13th of June, 1896, was not a valid mining claim, and, further, that before the Skull mining claim was located the locators of the Damfino mining claim had abandoned the ground. The cause was tried to the court without a jury, and upon that point the court found that "on the 13th day of June, 1896, Crane, Kasser, Gessell, and Grandstaff attempted to locate a mining claim embracing substantially the same property as that located by the defendants, which attempted location was not sufficient to withdraw the same from the public domain of the United States, and that the locators thereof were not in possession of said property on the 4th day of September, 1896." The assignments of error and the argument of appellant related principally to the judgment of the court being contrary to the evidence in the case, and urged particularly the existence of the Damfino claim at the time the Skull claim was attempted to be located.

2. It is well settled by numerous decisions, and by our own court that when a location has once been made the ground covered thereby is not public mineral land open to location, and no one can make any other location thereon so long as the first location is a subsisting one; so, if appellant's contention that the Damfino claim was existing at the time the Skull claim was located be true, the finding of the court would be erroneous. We have made a careful examination of the evidence in regard to the location of the Damfino mining claim, and of the acts of the parties whose names were connected with the location after the date the location notice bore. Grandstaff alone made the location and wrote the names of the other co-locators to the location notice. None of those whose names are on the location notices ever did anything, or ever attempted to do anything, except Grandstaff and Gessell, and none but Grandstaff and Gessell seemed to know anything about the claim, or, in fact,...