Zeiger v. Dowdy

• Decision Date: 25 March 1911
• Docket Number: Civil 1178
• Citation: 114 P. 565,13 Ariz. 331
• Parties: EDWARD ZEIGER, Defendant and Appellant, v. J. T. DOWDY and E. L. GIBSON, Plaintiffs and Appellees
• Court: Arizona Supreme Court

114 P. 565

13 Ariz. 331

EDWARD ZEIGER, Defendant and Appellant, v. J. T. DOWDY and E. L. GIBSON, Plaintiffs and Appellees

Civil No. 1178

Supreme Court of Arizona

March 25, 1911

APPEAL from a judgment of the District Court of the Fourth Judicial District of the Territory of Arizona, in and for Yavapai County. Edward M. Doe, Judge. Reversed.

The facts are stated in the opinion.

Norris & Smith and Ross & O'Sullivan, for Appellant.

"An action to determine the right to mining ground is in the nature of a suit to quiet title, so that plaintiff can recover only on the strength of his own title, and if he fails to show title it is immaterial that defendant has none." Schroder v. Aden Gold M. Co., 144 Cal 628, 78 P. 20. A complaint by townsite claimants alleging that they claim under a townsite occupancy that was prior to the placer mining location under which the defendant claimed without stating that any steps had been taken to make entry or connect with the government, was held on demurrer to be sufficient. Bonner v. Meikle, 82 F. 697, 19 Morr Min. Rep. 83; Young v. Goldsteen, 97 F. 303. An answer alleging that the defendants claim the land in question by virtue of a prior townsite settlement and occupation was held on demurrer, in a suit by a subsequent placer mining locator, to be sufficient. Cascaden v Bartolis, 146 F. 730, 77 C.C.A. 496. The rights of a bona fide possessor of public lands will be protected. Ritter v. Lynch, 123 F. 930; Waring v. Loomis, 35 Wash. 87, 76 P. 510; Tustin v. Adams, 87 F. 377; Davis v. Simmons, 1 Ariz. 25, 25 P. 536; Tidwell v. Chiricahua Cattle Co., 5 Ariz. 352, 53 P. 192; Neal v. Kayser, 12 Ariz. 118, 100 P. 439.

Robt. E. Morrison, for Appellees.

Where a person makes a relocation of mining ground, alleging in his notice abandonment as the reason for relocation, he is estopped thereafter from attacking the validity of the original location. Belk v. Meagher, 104 U.S. 279, 26 L.Ed. 735; Providence G.M. Co. v. Burke, 6 Ariz. 323, 57 P. 641; Zerres v. Vanina, 150 F. 564, 80 C.C.A. 366; Jackson v. Prior Hill M. Co., 19 S.D. 453, 104 N.W. 207.

OPINION

CAMPBELL, J.

Appellees brought this action to quiet title to a placer mining claim, the complaint alleging a discovery, by the plaintiffs, of mineral upon the unoccupied mineral lands of the United States and the performing of the various acts of location required by law, and that the defendant claimed some interest therein by virtue of an attempted relocation of the ground. The defendant, appellant here, answering, denied that plaintiffs made any discovery of mineral, denied that the ground was mineral in character, denied that he claimed any interest therein by virtue of any attempted location, and alleged that he claimed a portion of the ground in controversy by reason of the fact that for more than ten years last past there has been a settlement, village, or town upon the ground attempted to be located by the plaintiffs as a mining claim; that many houses for residence and business purposes have been erected thereon, some of which defendant purchased and is in possession of, and upon which he and his grantors have paid taxes for a number of years; and that the ground was not unoccupied at the time plaintiffs attempted to make their location. At the trial the plaintiffs produced testimony tending to establish the character of the ground as placer mineral ground, the discovery of mineral thereon, and the performance of the various acts of location. A location notice, filed by the defendant, whereby he sought to relocate the ground covered by the plaintiffs' location, because of forfeiture incurred by failure to do the annual assessment work during the year 1908, was also put in evidence. An objection to any testimony on the part of the defendant was sustained, and judgment entered for plaintiffs, from which and the order denying a new trial this appeal is prosecuted.

In the absence of any showing that he is seeking to connect himself with the government title under the townsite or other public land laws of the United States, we do not think appellant can claim any rights other than those of an occupant of the public lands. His rights are those of a licensee of the government, and he must give way to one who makes a valid entry of the land under the public land laws. But, until a valid entry is made, only the government may complain of his occupancy. The plaintiffs may have their title quieted only if they have one.

It is essential to the validity of a mining claim that the ground be mineral in character, and that a discovery of mineral within the confines of the claim be made. Sections 2329-2330 Revised Statutes of the United States (U.S. Comp. Stats. 1901, p. 1432); Chrisman v. Miller, 197 U.S. 313, 25 S.Ct. 468, 49...