EAGLE-PICHER MINING & SMELTING CO.
Rehearing Denied April 28, 1949.
Appeal from Superior Court, Pima County; Lee Garrett, Judge.
Ben C. Hill, of Tucson, for appellant.
Fred W. Fickett, William S. Dunipace, and Robert S. Tullar, all of Tucson, for appellee.
Phelps, Justice. Udall, Stanford, and De Concini, JJ., concur. La Prade, C. J., due to illness, did not participate in determining this appeal.
[68 Ariz. 216] This is an appeal from a judgment of the Pima County Superior Court in favor of Henry H. Meyer, Appellee, and against the Eagle-Picher Mining and Smelting Company, a corporation, Appellant herein.
The facts are that appellant claims to be the owner of certain mining claims located in the Pima Mining District in Pima County, Arizona, among which are a number of claims known as the Wakefield group including the Staple. Claim of right to the various claims were initiated at different times.
This litigation, however, involves only the Staple claim. We will therefore confine our statement of facts as much as possible
to this claim. The A. G. Belmer mining claim situated in the Pima Mining District was located in December, 1899, by A. G. Belmer and Warren Allison. Extensive work was done on the Belmer claim under an option agreement of purchase by one Charles P. Reininger, all of which was done prior to 1920. The work included sinking of shafts and running of tunnels, [68 Ariz. 217] as well as expending large sums of money in erecting buildings and in the installation of mining machinery on said Staple claim. Reininger ceased all work on said claim in 1919 and no one thereafter ever did anything to indicate an intention to continue to hold said claim.
In 1923 one T. K. Landros attempted to relocate the same area covered by the A. G. Belmer claim as an abandoned claim, designating it as the Staple. Within a few days Landros by quit-claim deed conveyed said claim together with two others located by him, known as the Lock and Key, to one Charles H. Pogue and on April 18, 1928, Pogue conveyed said claims by quit-claim deed to W. L. Wakefield. The latter held said claims until his death in 1932 and at all times lived on the Staple until a short time before his death when he was removed to a hospital in Tucson.
At the time Landros relocated the Staple as an abandoned claim, in addition to the large amount of work done thereon as above mentioned there was what was known as the discovery shaft of the approximate required dimensions located about 100 feet from the east center end of said claim. Said discovery shaft was not sunk 8 feet deeper than it was originally and no additional exploration work of any kind was done in said shaft at the time of the relocation or at any time thereafter. No additional monuments were ever erected on said claim by appellant or its predecessor in interest until proceedings were begun to procure patent, in 1945. Notices were merely placed in the old monuments. On the west end of the A. G. Belmer claim now known as the Staple claim there never has existed any monuments except that monuments were located on the east end of the Minnesota claim owned by one A. W. Forbes, lying approximately west of the A. G. Belmer claim. The east boundary of the Minnesota as monumented was approximately 100 feet from the west boundary of the A. G. Belmer or Staple claim and the northwest corner of the Staple was approximately 290 feet from the monument on the northeast corner of the Minnesota. There is nothing in the location notices of the Staple tying it to the east monuments of the Minnesota.
Appellant introduced in evidence ore taken from the old discovery shaft which it claimed was of a character and value sufficient to warrant a prudent man in expending labor and means for further exploration and development of said claim. This evidence was disputed by witnesses for appellee. No finding was made by the court on this issue, and the court stated that it deemed such finding unnecessary. Prior to 1932 no work was done upon the claim in question either by Landros, Pogue or Wakefield.
Upon the death of Wakefield in March, 1932, the probate court of Pima County appointed one Miles Carpenter executor of his estate who duly qualified and acted as such until his death in 1942.
[68 Ariz. 218] Congress in 1933 passed a law suspending the assessment work on unpatented mining claims which included the claims owned by the Wakefield estate. The executor of said estate in conformity with the provisions of said act duly filed his claim of intention to hold said mining claims for the years 1933, 1934, 1935, 1936, 1937, and 1938. In 1939 the act of Congress suspending annual assessment work on said claims having expired, there was filed an affidavit with the County Recorder of Pima County to the effect that the required labor upon said claims had been performed. He did this again in 1940 and in 1941. In his affidavit of labor performed in 1941 his reference to the Staple erroneously stated the page numbers of the Book in the County Recorder's office. On May 7, 1942, Congress again suspended assessment work ...