Shattuck v. Costello

• Citation: 8 Ariz. 22,68 P. 529
• Decision Date: 18 March 1902
• Docket Number: Civil 775
• Parties: L. C. SHATTUCK, Plaintiff and Appellant, v. MARTIN COSTELLO, Defendant and Appellee
• Court: Supreme Court of Arizona

68 P. 529

8 Ariz. 22

L. C. SHATTUCK, Plaintiff and Appellant, v. MARTIN COSTELLO, Defendant and Appellee

Civil No. 775

Supreme Court of Arizona

March 18, 1902

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise. George R. Davis Judge. Reversed. Dismissed on rehearing, post, p. 255.

The facts are stated in the opinion.

Barnes & Martin, for Appellant.

The ground covered by the Henrietta, Triangle, and Leo claims is substantially the same ground. The Henrietta was located in 1893, and was a good, valid, and subsisting location up to December 31, 1895.

The discovery work and discovery monument of the Leo is within the boundaries of the old Henrietta, and at the date of the Leo location, December 12, 1895, it was not open ground, and therefore the Leo location is void. Belk v. Meagher, 104 U.S. 279, 26 L.Ed. 735; Armstrong v. Lower, 6 Colo. 631; Faxon v. Bernard, 4 F. 705; Gwilliam v. Donnellen, 115 U.S. 45, 5 S.Ct. 1110, 115 L.Ed. 348; Golden T. Co. v. Smith, 2 Dak. 374, 11 N.W. 97; Harrington v. Chambers, 3 Utah 94, 1 P. 362.

On an adverse suit it should be determined whether or not either party has a right to the land in controversy, and mere failure to make out a case on the part of one of the litigants does not relieve the other from showing his title. Steel v. Gold Lead etc. Co., 18 Nev. 80, 1 P. 448; McGinnis v. Egbert, 8 Colo. 41, 5 P. 653; Hammer v. Garfield M. etc. Co., 130 U.S. 291, 9 S.Ct. 548, 32 L.Ed. 964; Lee Doon v. Tesh, 68 Cal. 43, 6 P. 97, 8 P. 621; Rosenthal v. Ives, 2 Idaho, 244, (265), 12 P. 904; Anthony v. Jillson, 83 Cal. 296, 23 P. 419; Becker v. Pugh, 17 Colo. 243, 29 P. 173; Manning v. Strehlow, 11 Colo. 451, 18 P. 625; Jackson v Roby, 109 U.S. 440, 3 S.Ct. 301, 27 L.Ed. 990; Gwilliam v. Donnellen, 115 U.S. 45, 5 S.Ct. 1110, 29 L.Ed. 348; Wolverton v. Nichols, 119 U.S. 485, 7 S.Ct. 298 30 L.Ed. 474.

While Costello claims under his Leo location of December 12, 1895 his subsequent action of relocating the same ground, and reciting it to be a relocation of ground formerly located by unknown parties and abandoned in 1895 or 1896, is not only an admission that his pretended location of 1895 was not good, but it is a solemn admission that the Moore location of the Henrietta was a valid one. Belk v. Meagher, 104 U.S. 279, 26 L.Ed. 735; Wills v. Blain, 4 N. Mex. 378, 20 P. 798.

Where a statute like ours requires the court to state separately all the facts found and the conclusions of law, the failure of the court to do so is reversible error. Finding under such a statute is in the nature of a special verdict, and without finding such facts there is no basis for the support of the judgment. Stanzell v. Corning, 21 Mich. 244; Hogaland v. Clarey, 2 Cal. 471.

The findings of the court should consist of a concise and distinct written statement, in its proper order, of each specific fact found. Emeric v. Alvarado, 64 Cal. 529, 2 P. 418; Goodnow v. Griswold, 68 Cal. 600, 9 P. 837; Bahnsen v. Gilbert, 55 Minn. 334, 56 N.W. 1117.

And the findings must support the judgment. As to the rule in adverse cases, see Larkin v. Upton, 144 U.S. 19, 12 S.Ct. 614, 36 L.Ed. 330; McTarnahan v. Pike, 91 Cal. 540, 27 P. 784; Gelcich v. Moriarity, 53 Cal. 217; Pralus v. Pacific Gold etc. Co., 35 Cal. 30; Butte Hardware Co. v. Cobban, 13 Mont. 351, 34 P. 24.

James Reilley, and Ben Morgan, for Appellee.

OPINION

STREET, C.J.

-- Appellee Martin Costello filed his application in the land office for a patent to the Leo mining claim, and within the sixty days Francis A. Ovens and L. C. Shattuck filed an adverse, and brought their action in the district court of Cochise County. They set up their title to the Triangle mining claim, and allege that 7.91 acres of the Leo claim overlap the Triangle claim. The Triangle claim being a prior location, they ask that their title to the ground in conflict be quieted, and be declared to be in them, the plaintiffs. The defendant, Costello, answered, denying the validity of the Triangle claim, and, as a cross-complaint, set up the location of the Leo mining claim, praying that he be entitled to the possession of all the Leo mining claim as described in his location notice, and that he be entitled to a patent from the United States, and that his claim be quieted as against the claim of plaintiffs' asserted right to the Triangle claim. The cause was tried to the court, and defendant, Costello, had judgment against L. C. Shattuck upon the following findings of fact: "The court finds from the evidence that the plaintiff Francis A. Ovens died some time during the year 1898, before the commencement of this suit, and before the adverse claim made in plaintiff's complaint was filed in the United States land office in Tucson. As between the plaintiff L. C. Shattuck and the defendant, Martin Costello, upon the issues of fact the court finds in favor of the defendant and against said plaintiff, and that the allegations of defendant's cross-complaint are true." Numerous assignments of error were made, all of which, in effect, were that the findings of fact and the judgment were contrary to the evidence, and also that the findings of fact were too general to base a judgment upon.

The statute provides that "In all cases where a trial of an issue of fact is held by the courts of record of the territory, the decision of the court shall be in writing, and filed with the clerk within thirty days after the trial takes place. In giving the decision the facts found and the conclusions of law shall be separately stated. Judgment upon the decision shall be entered accordingly." Rev. Stats. 1901, par. 1406. As the issues were made up, it was within the power of the court to find for the appellants, supporting the Triangle claim, or for the appellee, supporting the Leo claim, or for the government, not supporting either of said claims. Had the trial been upon issue raised by general denial, the court would not have been compelled to pass upon the claim of appellee, and the issue would have been only as to the validity of the Triangle claim, and the right of the owners thereof to maintain the same against the government; but, the appellee having set up the Leo claim, and asked for an adjudication of his right to that claim and to a patent therefor, it became the duty of the court to determine the validity of that claim as well as the Triangle claim. Where a defendant merely denies the allegations of plaintiff's complaint, a general finding for the defendant will be sufficient; but where the defendant sets up a cross-complaint, and asks for affirmative relief based upon the facts set up in the cross-complaint, a general finding for the defendant is not sufficient, but there should be a special finding of fact upon the cross-complaint upon which a judgment can be founded. The judgment adjudged "that the defendant, Costello, is the owner of and entitled to the possession of the Leo mining claim, as described in his recorded notice of location thereof, dated December 12, 1895, and in his cross-complaint in this suit, as follows, to wit." Then follows the description, etc. "And it is further ordered, adjudged, and decreed that the title and right of possession of said defendant, Martin Costello, to the said Leo mining claim is forever quieted and confirmed as against the plaintiff L. C. Shattuck," etc. The judgment goes far beyond the findings so prepared. Under the statute, and under defendant's cross-complaint, if the court found in favor of the cross-complaint, full findings of fact should have been prepared and signed, upon which a judgment could have been based. But appellant's assignments of error go further, and say that the findings of fact are unsupported by the evidence, or against the weight of evidence; which leads us into an investigation of the evidence, for, if we should find that the evidence did not present a substantial conflict, but was clearly of such import as to properly support findings in favor of the plaintiffs instead of the defendant, it would be the duty of this court to reverse the judgment.

The Triangle location, claimed by appellants, was located on the first day of January, 1896; the Leo mining location, claimed by appellee, was located on the twelfth day of December 1895. It is conceded that there is a conflict between the locations to the extent of the 7.91 acres of ground in dispute, but the chief contention between the parties is whether the ground located by appellee on the twelfth day of December, 1895, was at that time open to location; for if the ground was open to location at that time, it is plain that the Leo was a prior...