J. S. McNEISH, Appellant,
EDWARD H. KOLB, Appellee
APPEAL from a judgment of the Superior Court of the County of Cochise. Albert M. Sames, Judge. Judgment reversed.
Mr. D. C. Pace and Messrs. Sutter & Gentry, for Appellant.
Mr. J. T. Kingsbury, for Appellee.
LING, Superior Judge.
This action was brought by appellee, plaintiff below, to quiet his title to certain unpatented placer mining claims. Appellant, defendant below, answered denying plaintiff's title and setting up his own ownership in a like number of claims, differently named, but covering substantially the same ground. The case tried to the court, who made findings of fact upon which judgment was entered quieting plaintiff's title. The present appeal resulted.
The facts found are as follows:
[38 Ariz. 156] "That on the 29th day of September, 1928, R. M. Kolb, A. W. Ringhoff, H. A. Stearns, R. Vogel, D. T. Tracy, M. Powers, E. H. Kolb, S. L. Stearns, F. Powers, and F. J. Lucas, entered upon the lands and premises known as Morning Star, Morning Star Nos. 1, 2, 3, 4, 5, 15, 16, 17 and 18 placer mining claims, which were then and there a part of the vacant and unappropriated mineral and placer lands of the United States of America;
"That said parties aforesaid did on said date discover valuable placer marble on said claims and each of said claims aforesaid, and did on said date locate said claims and each of them as placer marble claims as provided by the laws of the State of Arizona and the United States;
"That thereafter said parties by mesne conveyances did convey all their right and title to said above described placer claims to the plaintiff herein, and said plaintiff is now the owner and entitled to the possession of same;
"That by virtue of a judgment for debt, in favor of J. S. McNeish and against the Dragoon Marble and Mining Company, a corporation, for $2,527.34, the Sheriff of Cochise County, Arizona, did sell to J. S. McNeish, and did thereafter give to the said J. S. McNeish a Sheriff's Deed to certain alleged mining claims, known as the Porter, Trouble, Clara, Drew, Mack, Dwight, Florence, Lowell, Bisbee, which said alleged claims covered substantially the same ground as the mining claims of the said plaintiff herein; that said J. S. McNeish did do and perform $100.00 worth of annual work and labor on each of said last named alleged placer mining claims for the years 1927 and 1928; that no valid locations of said last named and alleged mining placer, claims were made at any time by defendants or their grantors on discovery of minerals or placer marble, and said last mentioned and alleged claims were not monumented and the things required by Title XXXIV of the Laws of 1913 of the State of Arizona, were not done and performed by said defendants or their grantors and predecessors in interest."
The defendant contends that he should have had judgment quieting his title, because the court found [38 Ariz. 157] that his annual work for the years 1927 and 1928 had been performed, and the property, therefore was not subject to location on the twenty-ninth day of September, 1928. He insists this was the sole question for the court's determination, and, from our examination of the record, we find his position to be well taken. While it is true the defendant introduced no evidence showing a valid location of the claims by his predecessors in interest, and assuming, in an action of this
character, such proof to be indispensable ordinarily, we find such necessity removed in this case by declarations of plaintiff's counsel, as to what in his opinion was the only controversial question, and the acceptance of his theory by the court and opposing counsel.
The following excerpts from the record indubitably show that the only question submitted to the court for determination was, Had the defendant performed the required annual work? and that the scope of the inquiry ...