APPEAL from a judgment of the Superior Court of the County of Mohave. D. A. Bridges, Judge. Judgment reversed and the case remanded for a new trial.
Mr. Louis L. Wallace and Mr. Carl D. Hammond, for Appellant.
Mr. E. Elmo Bollinger and Mr. Fred. W. Morrison, for Appellees.
[40 Ariz. 268] LOCKWOOD, J.
Frank Warning, Cyril Wigmore and C. O. Sanford, hereinafter called plaintiffs, brought suit against Hartman Gold Mining Company, a corporation, hereinafter called defendant, to quiet title to the Big Jim Extension Mining Claim in Mohave county. Defendant filed various motions and demurrers, answered, and then cross-complained, asking to quiet its title to the North Aztec mining claim, covering the identical ground claimed as the Big Jim Extension in plaintiffs' complaint.
The case was tried before the court without a jury, and judgment rendered in favor of plaintiffs, and, after the usual motion for new trial had been denied, the case was brought before us for review.
With one or two exceptions, there is very little dispute as to the facts necessary for the determination of the case, and we state them as follows: In 1908 George Hartman and E. Baird located the North Aztec mining claim. By various intermediate conveyances [40 Ariz. 269] their interest was acquired by the Oatman Gold Mining & Milling Company, a corporation, hereinafter called the company. This company also owned eleven other mining claims in a group adjacent to the North Aztec, eight of them being patented, and four, among which was the North Aztec, being unpatented.
The annual labor necessary to retain the company's interest in the North Aztec was duly performed, or else affidavit filed in lieu thereof, up to and including the year 1925, but no work was done during the years 1926, 1927, and 1928, and in 1927 the manager for the company attempted to relocate the ground covered by the North Aztec under the name of Semloh, but this location was never completed.
During the year 1927 various creditors of the company brought suit against it and filed liens on the twelve claims above referred to. Judgment was recovered on some of these accounts, and the sheriff of Mohave county, in pursuance of the judgment, sold the twelve claims as a group to L. L. Wallace, who on March 15th, 1929, deeded them to the defendant herein.
Between May 2nd and September 1st, 1929, a large amount of labor was performed by defendant on certain claims included in the above group, being amply sufficient, if legally applicable to annual labor on the North Aztec claim, to more than comply with the law.
On September 1, 1929, Frank Warning, one of the plaintiffs herein, attempted to relocate the ground formerly known as the North Aztec under the name of Big Jim Extension Mining Claim, and this is the cause of the present suit.
There are many specific assignments of error, but we prefer to consider the case rather from the standpoint [40 Ariz. 270] of the general legal questions involved. There is no dispute that up to the year 1926 the Oatman Gold Mining Company was the owner of the North Aztec claim. It is the contention of plaintiffs that by failure to do the annual assessment work during the years 1926, 1927 and 1928 the company's interest in the claim in question was forfeited, and on September 1, 1929, it was open government ground subject to relocation. It is the position of defendant that, notwithstanding the failure on the part of the company, as aforesaid, to do the work for the years 1926, 1927 and 1928, its interest in the North Aztec claim passed to defendant by reason of the sheriff's sale and deed, as aforesaid, and that, before plaintiff attempted to initiate his location of the Big Jim Extension, defendant, as the company's assignee, had resumed work on the North Aztec claim, so that on September 1, 1929, it was not subject to relocation.
What are the rules of law applicable to the situation above outlined? The federal statute governing mining locations provides that, after a valid location is made, the locator must place upon the claim not less than $100 worth of labor and improvements each year until a patent is issued. 17 U.S. Stats. at Large 92, chap. 152, § 5, as amended by 21 U.S. Stats. at Large 61, chap. 9, § 2 (30 U.S.C.A., § 28). It is admitted that this was not done during the years 1926, 1927 and 1928. What, then, is the effect of such failure? It is held that a mere failure to comply with this law does not of itself terminate the locator's rights. Madison v. Octave Oil Co.,154 Cal. 768, 99 P. 176. Its only effect is to throw the land open to location by others, and, unless the forfeiture is made complete and effectual by a relocation, the original locator, his heirs or assigns, have a right to resume work ...