Treadwell v. Marrs

• Decision Date: 18 November 1905
• Docket Number: Civil 860
• Citation: 83 P. 350,9 Ariz. 333
• Parties: GEORGE A. TREADWELL et al., Plaintiffs and Appellants, v. GEORGE O. MARRS, Defendant and Appellee
• Court: Arizona Supreme Court

83 P. 350

9 Ariz. 333

GEORGE A. TREADWELL et al., Plaintiffs and Appellants, v. GEORGE O. MARRS, Defendant and Appellee

Civil No. 860

Supreme Court of Arizona

November 18, 1905

APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. Richard E. Sloan Judge. Affirmed.

On appeal to the United States Supreme Court.

Statement of facts: --

On April 11, 1901, George O. Marrs filed in the United States Land Office at Prescott his application for a patent to the Copper Link mining claim. George A. Treadwell and F. C Beckwith filed an adverse to such application, and within the time prescribed by law brought this action in support of such adverse. Judgment was given in the court below for Marrs, and from this judgment Treadwell and Beckwith have brought this appeal.

The complaint alleged the citizenship of the plaintiffs, the location of the claim, and the performance of the acts necessary to complete the validity of such location, the acquisition of the claim by the plaintiffs by mesne conveyances, the ownership of the property in the plaintiffs of the claim as monumented and as shown by the adverse map attached to the complaint, and the performance by the plaintiffs of the annual assessment work on the claim. The complaint further alleged that the pretended location of the Copper Link mining claim by the defendant was null and void by reason of the fact that the ground was not open to location, so far as it conflicted with the Buster claim. The complaint further set up the filing of the adverse, and the bringing of the suit in support thereof, and described the conflict according to the adverse map as follows "Beginning at the southeast corner of the Buster mining claim, thence north, 50 deg. west, 430.7 feet, to a point of intersection on the west side line of said Copper Link mining claim; thence north, 27 deg. 44 min. east, 679.4 feet, to a point of intersection on the west side of said Buster mining claim; thence north, 40 deg. east, 713.7 feet, to a point of intersection on the north end line of said Copper Link mining claim; thence south, 62 deg. 16 min. east, 364.2 feet, to a point of intersection on the north end line of said Copper Link mining claim; thence south, 50 deg. east, 86.1 feet, to a point of intersection on the east side line of said Copper Link mining claim; thence south, 27 deg. 44 min. west, 625.8 feet, to a point of intersection on the east side line of the Buster mining claim; thence south, 40 deg. west, 843.5 feet to the place of beginning -- containing 16.855 acres."

The adverse map attached to the complaint was as follows: --

[SEE DIAGRAM IN ORIGINAL]

The answer was a general denial, and contained allegations that the original monuments of the Buster claim had been removed by the plaintiffs prior to the location of the Copper Link so that the boundaries of the Buster claim could no longer be traced upon the ground; that the claim had been abandoned by the plaintiffs, and that the land embraced within the boundaries of the Copper Link was open to location at the time of its location by the defendant. It alleged the acts necessary to constitute a valid location of the Copper Link claim by the defendant, the ownership thereof, and contained certain other allegations, not necessary to be set forth, and prayed for affirmative judgment for the defendant.

The evidence introduced upon the trial showed that in September, 1875, the claim known as the "Buster Mining Claim" was located by J. M. Roberts, T. W. Boggs, and D. R. Poland, who erected the necessary monuments on the ground to mark the boundaries, and posted and recorded a location notice, as follows: "Buster lode notice of location. This ledge is located on a copper ledge or claim, commencing at a monument 200 feet north this notice, and runs 1,300 feet south to a monument, 1,300 feet from this notice, with 300 feet on each side of the vein. This ledge is in the Bradshaw Mountain, and about two miles from the Peck mine, and between the canyon of Turkey Creek and Crazy Basin, and was located by us September 24, 1875, all in Yavapai County, Arizona Territory. [Signed] J. M. Roberts, T. W. Boggs, D. R. Poland. This notice recorded November 20, 1875, at 12:30 o'clock P.M., at the request of D. R. Poland, and recorded in Book C-3 of Mines, records of Yavapai County, Arizona Territory, at page 448. William Wilkerson, County Recorder." The title of the locators to the claim passed to the plaintiffs by purchase in 1892. Soon after the purchase by the plaintiffs, Erwin D. Treadwell, a son of one of the plaintiffs, as their agent, went upon the ground, together with Boggs, one of the original locators, and was informed by Boggs that a large stone monument at a point near the summit of what was known as "Buster Hill," was the location monument, and, as Treadwell understood, also the center monument of the Buster claim. Treadwell shortly thereafter, relying upon the information given him by Boggs, starting from this monument as the center monument of the claim, made search for the other monuments of the claim for a distance of seven hundred and fifty feet north and south from such initial monument, but found none which he regarded as connected with the Buster claim. He thereafter, for the purpose of outlining the Buster claim, in order to make new locations, on either end of the claim built a monument approximately seven hundred and fifty feet in a northeasterly direction along the vein from the center monument, and another approximately seven hundred and fifty feet in a southwesterly direction from the center monument, and about in line with the center monument of the claim. His courses were north, forty degrees east, and south, forty degrees west, respectively. He then built four corner monuments on the north and south end lines, approximately three hundred feet distant in each direction from the north and south end center monuments, and then located several other claims contiguous to, and limited by, the boundaries of the Buster as he understood them. The plaintiffs remained in possession of the property, and spent money thereon continuously from that time until 1899. After the filing of this adverse suit, it was discovered for the first time by Treadwell and by the plaintiffs that the location notice of the Buster claim called for a claim starting from a point two hundred feet north of the initial monument, and not seven hundred and fifty feet, as supposed by Treadwell, and running south thirteen hundred feet, and not seven hundred and fifty feet, and that the monument pointed out by Boggs to Treadwell, instead of being in the center of the claim, as originally located, was located as being two hundred feet from the north end, and thirteen hundred feet from the south end, and that the call of the location notice was for a claim running north and south, and that the monuments, therefore, erected by Treadwell did not correspond to the calls of the location notice. In March, 1901, Treadwell found a monument about two hundred feet in a northeasterly direction from the initial monument pointed out to him by Boggs. In June, 1901, a survey and the adverse map were made on behalf of the plaintiffs by the surveyor, Merritt, from the monuments erected by Treadwell, as pointed out by him to the surveyor, and the conflict, as set out in the complaint, calculated there-from. The testimony further showed that the claim as surveyed and platted by Merritt did not conform to the original Buster location, either as originally monumented or described in the location notice, but as surveyed and platted was the ground monumented by Treadwell in 1893. As so surveyed and platted, it included ground in its northerly end which was neither included in the location notice, nor included in the original boundaries of the claim as defined by the original monuments.

Over the objection of the defendant, the plaintiffs attempted to prove by the testimony of the surveyor, Merritt, a conflict, not as set forth in the complaint, or as shown by the adverse map, or the boundaries as monumented by Treadwell, but based upon the assumption that the north center end monument of the Buster claim was two hundred feet north, forty degrees east, from the initial monument, and the south end monument seven hundred and fifty feet south, forty degrees west, and contained ten and a fraction acres, as against sixteen and a fraction, as shown by the adverse map and plat. The testimony was subsequently stricken out by the court, on motion of the defendant, and a map showing such conflict, from which the surveyor testified, and which was made in 1903, just prior to the second trial of the case, was also excluded. This conflict map followed the lines of the adverse map, and was the same as the latter, except that the north end line of the Buster was shown by a new line, supposed to intersect a point two hundred feet north, forty degrees east, from the initial monument. The map so excluded follows: --

[SEE DIAGRAM IN ORIGINAL]

The testimony of Merritt was the only testimony showing the boundaries and the extent of the conflict. It was admitted that the defendant was a citizen of the United States, and that he had duly performed all the acts necessary to constitute a valid location of the Copper Link claim. The court found that the adverse map was not made from any survey of the Buster claim, either as located on the ground or described in the location notice; that it did not show the boundaries, courses, distances, or extent of the ground included in the Buster claim, and did not show wherein, if at all, the Buster claim, as monumented on the ground, or as described in the location, conflicted with the Copper Link location; and that the plaintiffs' proof...