APPEAL from a judgment of the Superior Court of the County of Pinal. Fred W. Fickett, Judge. Judgment affirmed.
Mr. Louis G. Hummel, for Appellant.
Mr. Harold Baxter, for Appellees.
ROSS, C. J.
This is a suit by Onekama Realty Company, a corporation, to impress a trust in its favor upon George S. Wilson's title as patentee from the government of the E. 1/2 E. 1/2 and W. 1/2 E. 1/2 [42 Ariz. 154] of section 13, township 10 south, range 14 east, Pinal county, Arizona. To the first complaint a demurrer was sustained. Thereafter plaintiff filed an amended complaint which upon motion of defendants was stricken. Plaintiff having failed to further amend, the defendants moved the court to enter an order in their favor dismissing the cause, said motion being "based upon the pleadings and proceedings filed herein." On the day noticed for the hearing thereon, the court granted said motion and dismissed the plaintiff's complaint. Plaintiff has appealed.
While the plaintiff's assignments are directed to the orders of the court sustaining the demurrer to the original complaint and the striking from the files of his amended complaint, it seems to us the vital question is as to whether the court was justified in entering its judgment in favor of the defendants upon the pleadings.
It is alleged in the complaint that plaintiff's predecessors in interest, on or about January 1, 1915, having discovered valuable deposits of gold thereon, located the E. 1/2 E. 1/2 of said section as the Gold Channel and the W. 1/2 E. 1/2 as the Gold Channel No. 8 placer mining claims, and duly recorded these locations in Book 28 of Mines at pages 419 and 426, respectively, in the recorder's office of Pinal county; that through mesne conveyances the plaintiff, on September 12, 1930, became and is now the owner of said claims; that there has been expended upon them and certain contiguous claims constituting a group the sum of $19,000 in work and improvements; that the plaintiff and its predecessors in title have been, in good faith, in the exclusive possession of said mining claims under the mining laws of the United States ever since January 1, 1915, and that by reason thereof, and the work and improvements placed thereon, the said premises were segregated from the public domain.
[42 Ariz. 155] That the defendant George S. Wilson, on May 10, 1926, with full knowledge of the foregoing facts, unlawfully, violently, and forcibly entered into the possession of said premises and filed the following false and fraudulent application, in the United States land office, at Phoenix, Arizona.
"Additional Stock-Raising-Homestead Entry. . . .
"I, George S. Wilson, of Oracle, Arizona, do hereby apply to enter under the act of December 29, 1916 (Public No. 290, 64th Congress), subject to the reservation to the United States of all coal and other minerals in the land, together with the right to prospect for, mine, and remove the same E1/2 Section 13, Township 10 S., Range 14 E., G. & S.R.B. & Meridian, containing 320 acres, as additional to my Homestead Entry, No. 041201-025279" etc.
"I further state that the land applied for is not occupied and improved by any Indian, that no part of said land is claimed, occupied or being worked under the mining laws; that said land is unoccupied and unappropriated by any person claiming the same under the public land laws other than myself; that the land now applied for and that embraced
in my original entry above described do not contain merchantable timber and no timber except a little mesquite and catsclaw; is not susceptible of irrigation from any known source of water supply except the following areas; that some years a little creek runs through the center of the land in which occasionally there is a little water, and does not contain any water hole or other body of water needed or used by the public for watering purposes; that the said land is chiefly valuable for grazing and raising forage crops. That no part of said land is claimed, occupied or being worked under the mining laws" -- with the intent and purpose of deceiving the land officers, and who were in fact deceived thereby; that thereafter, in November, 1926, said defendant George S. Wilson submitted his final proof and received a patent for said premises; that in said final proof he falsely represented that no part thereof was occupied [42 Ariz. 156] or worked under the mining laws of the United States, and that there was thereon no water hole or other body of water, whereas he well knew of plaintiff's mining claims and that a stream of water flowed over said land for six months of the year, and was used successfully in irrigation and raising of crops, and that a spring was located thereon.
The plaintiff's prayer is that George S. Wilson and Jane Doe Wilson, his wife, be declared to hold in trust for plaintiff the title to said premises, and that they be directed to execute and deliver a ...