THOMAS J. RODGERS, Appellant,
JEANNE SARETTE LEVY BERGER, Appellee
APPEAL from a judgment of the Superior Court of the County of Mohave. J. W. Faulkner, Judge. Judgment affirmed.
Mr. L. C. McNabb and Mr. Elmer Graham, for Appellant.
Mr. Carl Krook, for Appellee.
[55 Ariz. 435] McALISTER, J.
This is an appeal by Thomas J. Rodgers from a judgment quieting title of the plaintiff, Jeanne Sarette Levy Berger, to certain mining property. Two defendants other than appellant were named in the complaint but one of them, Buck Turner, disclaimed any interest in the property and the other, the state of Arizona, did not appeal from the judgment against it.
The complaint alleges that the plaintiff is the owner of three unpatented mining claims located in the Owens mining district of Mohave county, Arizona, known as Gold Standard No. 1, Gold Standard No. 2 and Gold Standard No. 3, and that the defendants make some claim adverse to hers respecting this property but that it is without any right whatever.
In the answer the defendant, Rodgers, alleges that he is the owner of the Yucca mining claim which he located in the Owens mining district in Mohave county on March 18, 1936, and that it is now a valid existing mining claim located on unpatented, unappropriated mineral land but upon ground forfeited by the plaintiff and her predecessors in interest. He avers further that neither the plaintiff nor her predecessors in interest made any valid location on the Gold Standard No. 1, Gold Standard No. 2 or Gold Standard No. 3, in that neither of them discovered mineral in place on any of the claims or properly marked the boundaries thereof on the ground, and that if she did make valid locations thereof the claims were long since forfeited by her or her predecessors in interest by failure to keep up the annual assessment work or were abandoned.
In the answer of the state of Arizona it was alleged that thirty-six is a school section and that since the passage of the act of Congress, approved January 25, 1927, 44 Stat. 1026, 43 U.S.C.A., §§ 870, 871, and the acceptance of its benefits by Arizona in chapter 83, [55 Ariz. 436] Session Laws of 1927, the state has been the owner thereof, even though it is mineral in character; that on June 1, 1938, it entered into an agreement with defendant, T. J. Rodgers, by which it authorized him to prospect for mineral ores on section 36 on the claims located by him thereon called Yucca No. 1, Yucca No. 2, Yucca No. 3 and Yucca No. 4, each covering twenty acres; that the boundaries of these Yucca claims conflicted substantially with the Gold Standard claims but that the latter were abandoned by plaintiff's predecessor in interest, Levy, long prior to January, 1927, or were forfeited for failure to perform the annual assessment work.
The court found as a fact that the three Gold Standard claims were duly located on September 1, 1915, by Gabriel Levy and John M. Owen, and that each year since then the annual assessment work on them had been performed by their owner and proof thereof filed or exemption therefrom claimed under the act of Congress; that the lands embraced within these claims are mineral lands and were worked as such long before they were located by Levy and Owen and were known to be such when located by them and when the survey of them was approved in November, 1917; that the greater portion of them is situated on Section 36, Township 13 North, Range 14 West, Gila and Salt River Base and Meridian, and that defendant Rodgers trespassed upon these claims in 1936 by attempting to relocate them and that in June, 1938, the state of Arizona, against the will of plaintiff and over her objections, attempted to lease to the defendant, Rodgers, for mining purposes that portion of this section embraced within the Gold Standard claims; that from September 1, 1915, until 1936, when defendant made claim thereto without any right whatever, plaintiff and her predecessors in interest occupied the land embraced within the Gold Standard locations and claimed [55 Ariz. 437] ownership thereof and worked them as mineral lands continuously and peaceably.
It appears from the testimony of defendant Rodgers that some time after he made the location of the Yucca claims he learned from a Mr. MacDonald, a state
land employee, that they were on school section 36, and that he was advised by this gentleman to go to Phoenix and get a lease on them from the state land department; that he surrendered these claims and on June 1, 1938, secured from the state a prospector's permit or lease under which he was operating on February 2, 1939, when the complaint and summons in this action and an order to show cause why he should not be enjoined from removing any mineral bearing ore or rock from the Gold Standard claims alleged to be the property of plaintiff were served upon him. Before the return day, however, the parties stipulated that neither would perform any work on the claims until this litigation should be determined.
Section 36 was given the state by the Enabling Act for the benefit of public schools, but the survey of it was not approved until November 17, 1917, nearly two years after the location of the Gold Standard claims, and even though it was mineral land, the title vested in the state following the passage by Congress on January 25, 1927, of the act extending the grant to the state of sections 2, 16, 32 and 36 so as to embrace these numbered sections in every township, even though mineral in character, except where lands in lieu of such mineral lands had been selected, certified and approved, and none had been in the case of section 36. The Arizona legislature having accepted the benefits of this Congressional act in chapter 83, Session Laws of 1927, any mining locations made on this section after January 25, 1927, were invalid and without effect, and the only way defendant could obtain after that date any right to prospect and later work his Yucca claims [55 Ariz. 438] was by procuring a lease on them from the state through its land commissioner. But his right to secure and the state's to grant such a lease on any of the land within this section embraced within that covered by the Gold Standard claims, depended necessarily upon whether these were then valid and subsisting claims. If properly located in 1915 and the annual work on them was performed following that date down to 1938 or exemption therefrom claimed during those years in which it was allowed by Congress, the state even though these claims were on a school ...