Providence Gold-Mining Co. v. Burke

• Citation: 6 Ariz. 323,57 P. 641
• Decision Date: 02 June 1899
• Docket Number: Civil 676
• Parties: THE PROVIDENCE GOLD MINING COMPANY, Defendant and Appellant. v. DENNIS A. BURKE, Plaintiff and Appellee
• Court: Supreme Court of Arizona

57 P. 641

6 Ariz. 323

THE PROVIDENCE GOLD MINING COMPANY, Defendant and Appellant. v. DENNIS A. BURKE, Plaintiff and Appellee

Civil No. 676

Supreme Court of Arizona

June 2, 1899

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.

Statement of facts: --

The appellant, the Providence Gold Mining Company, claiming to be the owner of mining locations situated in Yavapai County called the "Hillside," "Yum-Yum," and the "Francis," made application for United States patent therefor in the land office in Prescott. The appellee Dennis A. Burke, filed his contest in the land office on May 8, 1897, and within thirty days thereafter commenced proceedings in the district court of Yavapai County to determine the question of right of possession, in accordance with the provisions of section 2326 of the Revised Statutes of the United States. The three mining locations claimed by appellant adjoin each other, and run in a general easterly and westerly direction. The Hillside lies in the middle, the Yum-Yum joins it on the westerly end with a strong deflection to the southwest, and the Francis joins the Hillside on the easterly end with a strong deflection to the northeast. Appellee made allegation in his complaint that he was the owner of the Wizard mining claim. By a map filed as an exhibit with the complaint, he showed and alleged that the surface boundaries of the Wizard location were substantially those of the Hillside location, and that there was a conflict between the Wizard claim and the claims for which appellant was seeking patents to the extent of 2.876 acres on the Yum-Yum, 15.030 acres on the Hillside, and .304 acres on the Francis. The Wizard claim was located May 24, 1893, by A. L Butler and Joseph McKeague, and came into possession of appellee by mesne conveyances. The Yum-Yum claim was located July 6, 1893, by A. E. Baker and A. B. Lewis. The Hillside was located January 1, 1896, by A. B. Lewis and Henry Johnson. The Francis claim was located January 1, 1896, by S. E. Mensinger. The three claims, Yum-Yum, Hillside, and Francis, came into possession of appellant by mesne conveyances. The Hillside claim, whose lines are substantially those of the Wizard claim, is a relocation of the Wizard claim, and is described in the location notice as "formerly the Wizard mining claim, as a forfeited claim." The answer of appellant, after making allegations of the locations of the several claims, further alleges, and urges as a defense, that the annual expenditure for the year 1895 was not made upon the Wizard claim, and that the same was forfeited. The cause was tried before a jury, who returned a verdict in favor of plaintiff, Burke, the appellee herein. Judgment was rendered accordingly. The defendant appealed to this court, and assigned the following errors: Nos. 1, 2, and 3 relate to instructions to the jury. No. 4. That the court erred in permitting the introduction of the location notice of the Wizard claim to be read in evidence. No. 5. That the court erred in admitting the testimony as to the acts of location as to the Wizard claim. No. 6. That the court erred in admitting the deed from Joe McKeague, one of the locators, in evidence. No. 7. That the court erred in permitting any evidence to go to the jury as to Joe McKeague's having voted at Big Bug in 1894, to prove citizenship. No. 8. That the court erred in overruling appellant's motion for an order and decree in favor of defendant notwithstanding the findings and verdict of nine of the jurors. No. 9. That the court erred in overruling appellant's motion in arrest of judgment. No. 10. That the court erred in overruling appellant's motion for new trial. No. 11. That the court erred in instructing the jury that under the law in this class of cases it is not required that a unanimous verdict be returned by the jury.

The following is a plat of the premises in question: --

[SEE DIAGRAM IN ORIGINAL]

Andrews & Ling, and H. D. Stocker, for Appellant.

The court erred in permitting any testimony to go to the jury as to Joe McKeague having voted at Big Bug in 1894. An attempt to prove a man's citizenship by simply voting at one election is incompetent in any case, and particularly so in actions of this kind. Citizenship of the locator of a mining claim is governed by section 2321 of the Revised Statutes of the United States. The only evidence which is admissible as to the citizenship of the locators of the Wizard claim would be either depositions of the party himself, affidavits, or other testimony of the party himself.

Morrison & Morrison, for Appellee.

The party setting up forfeiture must prove it by a preponderance of evidence. Hammer v. Garfield M. and M. Co., 130 U.S. 291, 9 S.Ct. 548.

Where a mining claim is a practical relocation of a former location and the notice of location refers to the former location as a forfeited claim, this is an implied admission on the part of the person claiming under the relocation of the validity of the former location. Willis v. Blaine, 4 N. Mex. 378, 20 P. 798; Belk v. Meagher, 104 U.S. 279; Lindley on Mines, par. 404.

That voting is an evidence of citizenship is sustained in Boyd v. Thayer, 143 U.S. 180, 12 S.Ct. 375. Citizenship may be proved like any other fact. Lindley on Mines, par. 227; Thompson v. Spray, 72 Cal. 528, 14 P. 182.

OPINION

STREET, C.J. (after stating the facts). --

The last four assignments of error, numbered 8, 9, 10, and 11 may be grouped together. Counsel for appellant have made an exhaustive argument upon them, and have placed the errors there assigned in a prominent attitude. Grouped together, they relate to the rights of the parties to a trial by a common-law jury. The cause was tried before a panel of twelve. The court instructed them that: "Under the law in this class of cases, it is not required that a unanimous verdict be returned by the jury. If, therefore, you do not unanimously agree upon a verdict, but three fourths of you, or more, do agree upon a verdict, such verdict will be signed by your number constituting said three fourths, or more, and returned into court," -- upon which instruction a verdict was returned, signed by but nine of the jurors. Act No. 51 of the Session Laws of Arizona of 1891 provides as follows (section 1): "That in all trials of civil cases and in all trials of misdemeanors in the courts of this territory, where a jury of twelve persons shall be impaneled to try such case, the concurrence of three fourths (3/4) of such jury shall be sufficient to render a verdict therein. And in all such trials, when the said jury of twelve persons shall unanimously agree upon a verdict, said verdict shall be signed by the foreman thereof, and returned into court; but where such jury do not unanimously agree upon a verdict, then said three fourths of such jury shall sign the verdict so agreed upon by them, and notify the court of such fact, and thereupon all of said jury shall be returned into court, and shall then deliver to the court the verdict so signed by three fourths (3/4) of such jury; and the court shall receive and cause to be read and recorded such verdict in the cause, and judgment shall be entered thereon as in other cases now provided by law. Provided, that in all trials of felony, the concurrence of twelve jurors shall be necessary to render a verdict." The act has already received a construction by this court in the case of Carroll v. Byers, 4 Ariz. 158, 36 P. 499, where it was held that the act, "in so far as it applies to cases cognizable at common law, must be held invalid, because in conflict with section 1868 of the Revised Statutes of the United States, which authorizes in the territories a commingling of common-law and chancery jurisdictions in the territorial courts, and a uniform course of proceding in all cases, legal or equitable"; and provides also (Supp. Rev. Stats. U.S. 1874-1881, p. 13; 1891, p. 7), "No party shall be deprived of a right to trial by jury in cases cognizable at common law." Similar statutes have been upheld in other territorial jurisdictions when not in conflict with section 1868 of the Revised Statutes of the United States and its amendments. In the case of Hess v. White, 9 Utah, 61, 33 P. 243, the supreme court of Utah held that a statute providing that in all civil actions a verdict may be rendered by a concurrence therein by nine or more members of the jury was not in conflict with the constitution of the United States, "that in suits in common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved" (Amend. art. 7); nor in conflict with section 1868 of the Revised Statutes of the United States and its amendments, that "no party shall be deprived of the right to trial by jury in cases cognizable at common law." The supreme court of the United States, in the case of Publishing Co. v. Fisher, 166 U.S. 464, 17 S.Ct. 618, in discussing the validity of the Utah statute, only held that it was in conflict with the provisions of the constitution and statute heretofore cited in cases arising at common law; that the provision of the constitution and the acts of Congress secured to litigants in common-law actions the right to trial by jury in all its substantial elements. The same court, in the case of Walker v. Railroad Co., 165 U.S. 593, 17 S.Ct. 421, in construing a territorial statute providing for special issues to be found by a jury, held that it was within the power of a legislature of a territory to provide that on a trial of even a common-law action the court may, in addition to the general verdict, require specific answers to inquiries; and when a conflict is found between the two, render such a...