Peachy v. Frisco Gold Mines Co.

• Decision Date: 12 April 1913
• Docket Number: 87.
• Citation: 204 F. 659
• Parties: PEACHY v. FRISCO GOLD MINES CO.
• Court: U.S. District Court — District of Arizona

204 F. 659

PEACHY v. FRISCO GOLD MINES CO.

No. 87.

United States District Court, D. Arizona.

April 12, 1913

William M. Seabury, of Phoenix, Ariz., for plaintiff.

E. S Clark, of Prescott, Ariz., and Walter Bennett and Kibbey Bennett & Bennett, all of Phoenix, Ariz., for defendant.

MORROW Circuit Judge.

The action is in ejectment to recover possession of certain unpatented mining claims in the San Francisco mining district, in Mohave county, in this state.

1. It is conceded by the plaintiff that on December 31, 1907, one D. M. Gaddis and W. E. Sauls, the defendant's predecessors in interest, were the undisputed owners and in possession of the claims in controversy under valid locations, but it is alleged, in substance, in the bill of complaint that during the year 1907 Gaddis and Sauls conspired and agreed together to do no work and perform no labor upon or for the benefit of said mining claims or any of them for and during the year 1907, but, instead of performing the work and labor required upon said claims for said year they conspired and agreed together to abandon the same, and each of them, on December 31, 1907, and on January 1, 1908 to relocate each and every one of said claims, and thereafter, under and by virtue of their said pretended relocations of January 1, 1908, and not under and by virtue of the former titles to said claims and of each of them, owned by said Gaddis and Sauls, to hold the ground and premises embraced within said mining claims, and each of them, to the exclusion of all other citizens of the United States who might lawfully enter upon and develop the same; that pursuant to said agreement and conspiracy between Gaddis and Sauls they performed no labor and made no improvements upon the said claims, nor did they cause the same to be done during the year ending December 31, 1907, as required by section 2324 of the Revised Statutes; that at no time thereafter did they, or their successors in interest, resume work upon said claims as required by said section; that they abandoned said claims on December 31, 1907, and surrendered all right, title, and interest in and to said claims. It is alleged, further, that thereupon said claims reverted to the ownership of the government of the United States and became a part of the public domain, open to entry as lode mining claims by any qualified citizen of the United States, save and except said Gaddis and Sauls, each of whom, by reason of his abandonment of said claims, became disqualified and incompetent to lawfully relocate said claims or any part thereof; that notwithstanding such disqualification Gaddis and Sauls assumed to relocate each of said mining claims on January 1, 1908, by adopting the former boundaries of the claims, together with the then existing discovery of mineral in place upon each of said claims, and the discovery shaft upon each of said claims, but applying to each of said claims a different name from that previously applied to each of them; that about March 12, 1908, Gaddis and Sauls recorded the relocation notice of each of said claims in the office of the county recorder of Mohave county; that in each of said notices the said Gaddis and Sauls declared and stated that they had relocated each of said claims as abandoned ground; that thereafter, through various mesne conveyances, the defendant became the successor in interest of said Gaddis and Sauls; that on September 27, 1910, the plaintiff peaceably and openly entered into and upon a part of said premises and located the same by erecting thereon three certain location notices, and by making on each of said claims a discovery of mineral in place, and by sinking upon each of said claims a discovery shaft at the point and place of discovery; that the plaintiff then and there began the erection and construction upon each of said claims of his discovery monuments, and that he placed in each of said discovery monuments notices of location; that said notices and each of them were duly posted at the discovery point and points of each of said claims, and that at said points there then was, and still is, a well-defined vein or crevice in rock and place carrying gold and other precious metals; that the plaintiff thereupon began the work of perfecting the locations by measuring the boundaries of said claims and by placing monuments thereon, as required by the statute, but that while so engaged the agents and representatives of one Joshua R. Clair, who on August 12, 1909, obtained from Gaddis and Sauls an option to purchase said claims, and afterwards became the successor in interest of Gaddis and Sauls, and the predecessor in interest of the defendant, and who was then in possession of the premises adjacent to the claims in controversy, with force and arms prevented the plaintiff from continuing the completion of his said locations, or any of them, demolished one of plaintiff's location monuments erected by him, and by threats of violence and physical injury against the plaintiff drove, expelled, and ousted the plaintiff and his assistant from said premises.

It is further alleged by the plaintiff that for the protection and preservation of his rights in the premises, he instituted a suit in equity on December 10, 1910, in the then territorial court of the Fourth judicial district of the territory of Arizona, to quiet his title to said mining claims; that a general demurrer based upon the ground that plaintiff's complaint failed to state facts sufficient to constitute a cause of action was interposed by the defendant, and sustained by the court; that a judgment was entered thereon dismissing the plaintiff's complaint upon such ground, and thereafter, on or about September 28, 1912, the said judgment was affirmed by the Supreme Court of the state of Arizona, which said judgment of affirmance became final on November 8, 1912, at which time said Supreme Court denied plaintiff's application for a rehearing of said cause. But plaintiff alleges that the complaint herein is wholly and materially different from his complaint in said action in the state court, and supplies each and all of the defects and deficiencies contained in the former complaint.

Plaintiff further alleges that during the month of October, 1911, he first learned that early in September, 1911, the predecessors in interest of the defendant had so far proceeded with the construction of a mill upon the said premises that the defendant was able to operate the same and reduce the ores contained in said premises, and to extract therefrom the gold and other precious metals contained therein; that said mill has a capacity of 40 tons of ore every 24 hours; that it is the intent and purpose of the defendant to continue the operation of said mill and to increase its capacity, thereby depleting, destroying, and exhausting plaintiff's property and estate in said premises; that the defendant is now converting the product of the ores so reduced as aforesaid to its own use and benefit. It is further alleged that, under an order of court, the defendant was restrained from interfering with the plaintiff in the completion of his location of the claims in controversy, and under this order plaintiff was permitted to perform the work and improvements required by the statute for the year 1911.

The relief demanded by the plaintiff is the recovery of possession of the premises; that the defendant be ejected from the possession and occupation of the premises; that the plaintiff recover damages for the use and occupation thereof, and for the value of the ores and precious metals extracted from said premises by the defendant.

The defendant in its answer denies specifically the charge made in the complaint, that Gaddis and Sauls conspired together and agreed and determined between themselves not to do or perform any work or labor upon or for the benefit of said mining claims, or any of them, during the year 1907; denies that they conspired together and agreed and determined between themselves to abandon said claims or any of them on December 31, 1907, or at any other time, or to relocate the said claims, and to hold the ground and premises embraced within said mining claims under such relocation; denies that pursuant to such agreement between Gaddis and Sauls they did not do or cause to be done or performed any labor or work or improvement upon said claims for the benefit of said claims; denies that at no time after January 1, 1908, the said Gaddis and Sauls resumed work on said claims; denies that pursuant to any agreement or conspiracy they did on December 31, 1907, or at any other time, or at all, abandon said claims or any or either of them, or surrender the right, title, and interest in said claims; denies that said claims on the 1st day of January, 1908, or at any other time, reverted to the unqualified ownership of the government of the United States, and became part and parcel of the unappropriated public domain, open to entry by any qualified citizen of the United States.

The defendant admits that Gaddis and Sauls did attempt to relocate each of said claims, and the ground embraced in the exterior boundaries thereof, under certain names set forth in the answer; but denies that in making said locations said Gaddis and Sauls adopted the discovery shaft upon each of said claims, and the location work theretofore done and performed upon each of said claims; denies that said Gaddis and Sauls did not cause to be done upon the ground embraced within said locations the amount of work required by law to be done and performed upon mining locations to constitute a valid location thereof; admits the recording of notices by Gaddis and Sauls as alleged in the complaint.

The defendant alleges that between the 1st day of January, 1908 and the 12th day of ...