Kinney v. Lundy

• Decision Date: 22 March 1907
• Docket Number: Civil 969
• Parties: CLARA A. KINNEY, Defendant and Appellant, v. J. C. LUNDY, Plaintiff and Appellee
• Court: Arizona Supreme Court

89 P. 496

11 Ariz. 75

CLARA A. KINNEY, Defendant and Appellant, v. J. C. LUNDY, Plaintiff and Appellee

Civil No. 969

Supreme Court of Arizona

March 22, 1907

APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for the County of Gila. Frederick S. Nave Judge. Reversed and remanded for new trial.

The facts are stated in the opinion.

A. C Baker, for Appellant.

Section 3241, Revised Statutes of 1901, provides for certain requirements in making a relocation of abandoned property. In this instance the meaning of the legislature was that unless these requirements were complied with, a location notice not including them should be void. And so it has been held in Cunningham v. Pirrung, 9 Ariz. 288, 80 P. 329; Moffat v. Blue River Gold Excavating Co., 33 Colo. 142, 80 P 139.

Evidence as to the amount paid for assessment work is admissible. McCormick v. Parnatt, 80 P. 1044. It is also held that evidence to show that the amount of assessment work performed upon a mining claim of a certain value is insufficient to show an abandonment. Abandonment is a question of intent. Moffat v. Blue River Gold Excavating Co., 80 P. 139. As to the effect of the assessment work done by the appellant upon claim No. 5 to apply upon all the other claims in the group, it has been held that work done upon a claim, or upon one claim in a group of claims with intention to develop and apply upon all is sufficient. This principle has been held in the cases: Wilson v. Triumph Cons. Min. Co., 19 Utah 66, 75 Am. St. Rep. 718, 56 P 300; Klopenstine v. Hays, 20 Utah 45, 57 P. 712; Fissure Min. Co. v. Old Susan Min. Co., 22 Utah 438, 63 P. 587.

George R. Hill, and E. J. Edwards, for Appellee.

Briefly stated, the theory of appellee is as follows: That appellant did no assessment work within the boundaries of Rosaline No. 2 in 1902 or 1903. This is not disputed. Upon appellant, then, rested the burden of showing that representation work had been done elsewhere in such manner that it would tend to develop the Rosaline No. 2, prior to location by appellee. Lindley on Mines, sec. 630, p. 1169; McCormick v. Baldwin, 104 Cal. 227, 37 P. 903; Jackson v. Roby, 109 U.S. 440, 3 S.Ct. 301, 27 L.Ed. 990; Sherlock v. Leighton, 9 Wyo. 297, 63 P. 580, 63 P. 934; Hall v. Kearny, 18 Colo. 505, 33 P. 373; Justice Min. Co. v. Barclay, 82 F. 554.

The right to amend a notice or location, or both, has long been recognized, and exists independently of statutory regulations. Lindley on Mines, p. 717; Snyder on Mines, sec. 432; McEvoy v. Hyman, 25 F. 596; Duncan v. Fulton, 15 Colo.App. 140, 61 P. 246; Strepy v. Stark, 7 Colo. 614, 5 P. 111. And statutes providing for such amendments are nearly declaratory of existing rights. Thompson v. Spray, 72 Cal. 528, 14 P. 182. And are remedial, and should be liberally construed. Our statute, paragraph 3238, is broad in its terms. It provides that "location notices may be amended at any time." In other words, that "location notices" at any time, for any purpose, may be amended. It frequently happens that a "location notice" is said to be "void." McEvoy v. Hyman, 25 F. 596; Strepy v. Stark, 7 Colo. 614, 5 P. 111. That is to say, it may fail in some particular, either as to description, statutory requirements, reference to natural objects, or in other essentials, but, in the absence of intervening rights, and often with intervening rights, the courts hold them to be remedial by amendment. The current and weight of authority is to that effect. Strepy v. Stark, supra; McEvoy v. Hyman, supra; Duncan v. Fulton, 15 Colo.App. 140, 61 P. 244; Frisholm v. Fitzgerald, 25 Colo. 290, 53 P. 1109; Morrison v. Regan, 8 Idaho, 291, 67 P. 960; Jordan v. Schuerman, 6 Ariz. 79, 53 P. 579; McGinnis v. Egbert, 8 Colo. 41, 5 P. 652.

Appellant contends that the word "void," as used in the statute, makes the amendment of the location notice impossible. If the courts use the words "void" and "voidable" interchangeably, and say "void" when the word "voidable" is more exact, it is quite possible that the legislature may use the word "void" in the same way. This has been so held by the supreme court of the United States in Ewell v. Daggs, 108 U.S. 148, 2 S.Ct. 408, 27 L.Ed. 682. As used in contracts, legal writings and statutes, the word may mean absolutely and under all conditions void, or it may mean only voidable under certain conditions. Hogan v. Akin, 181 Ill. 448, 55 N.E. 137. Even though a statute uses the words "absolutely void," it may be construed as voidable only. Tolbert v. Horton, 31 Minn. 518, 18 N.W. 647. It frequently occurs that the word "void" is used in a statute not in the strict literal sense of the word, but as meaning voidable. 29 Ency. of Law, 2d ed., 1068, and cases cited. The word "void," as used in paragraph 3241, should be construed with reference to the subject matter and in the light of precedent and custom, and can only mean voidable; hence the notice is amendable.

OPINION

KENT, C.J.

-- Lundy brought suit in the court below against Clara A. Kinney to quiet his title to a mining claim in Gila county known as the "Little May," alleging that he had duly located the claim on April 1, 1903. The defendant filed an answer and cross-complaint, alleging that the premises covered by the plaintiff's location were not at the time of his location unoccupied public domain of the United States, but that the property covered by the Little May location had theretofore, and on the second day of January, 1896, been duly located by one Alfred Kinney as a claim known as the "Rosaline No. 2," which claim had thereafter been duly transferred to defendant by deed, and that since the date of the location of said Rosaline No. 2 mining claim she had expended thereon the sum of $100 for annual assessment work for each and every year thereafter, and that neither at the time of the location of the claim by Lundy, nor at any time thereafter, had the said claim been abandoned or forfeited, or subject at any time to relocation; and prayed that her title to said claim be quieted as against Lundy. To the cross-complaint so filed the plaintiff filed an answer denying the performance of the annual assessment work upon the claim for the year 1902, and denying any resumption of labor upon said claim prior to plaintiff's location. Upon the issues so formed by the pleadings the case came to trial before the court, sitting without a jury, and upon the evidence the court found that prior to 1903 the defendant was the owner of the Rosaline No. 2 mining claim; that the Little May mining claim and the Rosaline No. 2 mining claim covered substantially the same ground; that the defendant had failed to do the annual assessment work on the Rosaline mining claim for the year 1902, and had not resumed such work thereon prior to plaintiff's relocation thereof in April, 1903; that on April 1, 1903, the plaintiff and one Bennett duly entered upon the premises and located the same as the Little May mining claim, and duly completed such location, and thereafter did the annual work required by law upon said claim for the year 1904; that thereafter, and on the 27th of May, 1905, the plaintiff amended his original location notice to make it conform to the provisions of paragraph 3241 of the Revised Statutes of Arizona, by reciting therein that the Rosaline No. 2 mining claim (Little May No. 1) was relocated in whole as abandoned property; that subsequent to such location of the premises by the plaintiff, and prior to the filing of said amended notice, defendant had acquired no rights in or to said premises, either by relocation or by doing the annual assessment work as required by law; and as a conclusion of law from these findings the court held that on the first day of April, 1903, the premises were subject to relocation, and that the plaintiff's location was in all respects valid, and the defendant had no right, title, or interest in or to the premises; and thereupon entered judgment quieting the title of the plaintiff as against the defendant. From this judgment, and from the denial of a motion for a new trial, the defendant, Kinney, has appealed to this court.

It appears from the testimony of the plaintiff that when he located the claim in May, 1903, he had knowledge of the fact that the ground had theretofore been occupied and taken possession of as a mining claim. The location notice introduced by him in evidence did not contain any statement that the claim so located by him was located in whole or in part as an abandoned claim. Over objection by the defendant, the plaintiff introduced an amended location notice dated May 27, 1905, and filed for record that day, which amended notice of location contained the statement that the whole of the claim was located as abandoned property, and that such amended location notice was filed without any waiver of rights in and to said premises, and for the purpose of making more specific and certain the original location notice. The appellant has assigned as error the ruling of the court in allowing the introduction in evidence of this amended location notice, on the ground that under the statute the original location notice was void and incapable of amendment.

Our statute provides (Rev. Stats. 1901, par. 3241): "The relocation of forfeited or abandoned lode claims shall only be made by sinking a new discovery shaft and fixing the boundary in the same manner and to the same extent as is required in making an original location; or the re-locator may sink the original shaft ten feet deeper than it was at the date of the commencement of such location, and shall erect new or make the old monuments the same as originally required. In either case a new location monument shall be erected, and the location notice shall state if...