Perley v. Goar
| Decision Date | 17 February 1921 |
| Docket Number | Civil 1826 |
| Citation | 195 P. 532,22 Ariz. 146 |
| Parties | FRANK PERLEY, HARRY GARDNER, WILLIAM JEFFRIES, and ED FESLERLING, Appellants, v. WILLIAM GOAR, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Cochise. Alfred C. Lockwood, Judge. Affirmed.
Mr. J T. Kingsbury, for Appellants.
Mr John F. Ross and Mr. Bruce Stephenson, for Appellee.
Appellee alleging ownership by purchase from the locator of fourteen lode mining claims situate in Dragoon mining district Cochise county, Arizona, set out in his complaint that appellants had entered into possession thereof, and were extracting therefrom valuable minerals, with the intent to remove said minerals from the mines and ship and dispose of them; that appellants were insolvent, and, unless restrained from doing said acts, he would suffer irreparable injury and damage; that he was without any adequate remedy at law, and prayed that appellants be noticed to show cause why they should not be enjoined.
Appellants in their answer demurred to the complaint upon several grounds. They also interposed as an affirmative defense that the ground covered by appellee's alleged mining claims was vacant and unappropriated public lands, because appellee's grantor, in attempting to locate said claims, had failed to comply with the law in a number of enumerated particulars, and that, while the same were vacant and unappropriated, they entered thereon, discovered mineral in place, and did the other things necessary under the law to effect valid mining claims.
The case was tried by the court with a jury, to whom the issues of fact involving the validity of appellee's locations were submitted, it apparently being conceded that, if his locations were legal, appellants acquired no rights by their acts of location. All the interrogatories as to the discovery of mineral, building of monuments, posting and recording location notices were favorable to the validity of appellee's locations. Whereupon judgment was entered in accordance with the prayer of the complaint, restraining and enjoining appellants from working on said mines and from taking ore and minerals therefrom.
The assignments based upon the overruling of demurrers we pass over without further notice than to say that, were this an adverse suit, the objections to the complaint in failing to detail the acts of location would be well taken. This not being an adverse suit, but one to prevent a trespass, the complaint is not vulnerable to demurrer upon the grounds asserted. Clason v. Matko, 12 Ariz. 213, 100 P. 773.
Appellee's grantor located the mining claims March 8, 1916, but did not file with the county recorder copies of the location notice until June 7, 1916, or ninety-one days from the date of location, if the first day be excluded and the last day included in the computation. Appellants, taking the position that the notices of location were not competent evidence because they were not recorded within ninety days, as the statute provides (par. 4030, Civil Code), objected to their introduction, and assign error upon the order overruling their objection. It appearing that the appellants' claim of rights to the ground in controversy is based upon locations dated in November, 1917, and long after the notices of location objected to were filed and recorded, the court was right in admitting them in evidence. The failure to file location notices within the time fixed by statute does not render the locations invalid, except as to adverse rights acquired before the filing. 27 Cyc. 576 (G).
The jury were taken, under charge of a court bailiff, to view the premises. On their return into court appellants raised the point that the view was not conducted in accordance with the court's instructions, and that the jury had been permitted to separate. The charge was fully investigated by the court and disallowed. This is assigned as error. The evidence of the bailiff, witnesses, and jurors is all to the effect that the view was conducted fairly, and was made by all the jurors acting together. There is no material dispute as to this, but...
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Rundle v. Republic Cement Corp.
...the government is a silent party.'' (Citing cases.) Moreover, in an analogous situation this court, in the mining case of Perley v. Goar, 22 Ariz. 146, 195 P. 532, held that the question of a qualification of the locator of a mining claim, so far as the validity thereof is affected by his a......
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Goldfield Mines, Inc. v. Hand, 1
...by statute does not render the locations invalid, except as to adverse rights acquired before the late recording. See Perley v. Goar, 22 Ariz. 146, 195 P. 532 (1921). Here, the location notices were filed in the proper county long prior to Hand's attempt to acquire adverse rights in 1981. A......
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Gallaway v. Smith, 5128
...true by the answers filed in the case, and that such admitted facts may be considered as a part of the evidence in the case. Perley v. Goar, 22 Ariz. 146, 195 P. 532; Consolidated Nat. Bank of Tucson v. Cunningham, 24 Ariz. 437, 210 P. 850; State ex rel. Conway v. Glenn, 60 Ariz. 22, 131 P.......
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City of Hot Springs v. Hot Springs Fair & Racing Ass'n
...the admissions is not sworn to. * * *' The cases are in accord that facts admitted by the pleadings need not be proved. Perley v. Goar, 22 Ariz. 146, 195 P. 532; Lifton v. Harshman, 80 Cal.App.2d 422, 182 P.2d 222; Gallaway v. Smith, 70 Ariz. 364, 220 P.2d 857; Butler v. Stratton, 95 Cal.Ap......