MacDONALD et al.
Appeal from Superior Court, Pinal County; Lee Garrett, Judge.
Suit by W. D. Cluff against Fay Young MacDonald and Duncan MacDonald, her husband, to quiet title to a mining claim. From a judgment for the plaintiff and from an order denying defendants' motion for new trial, defendants appeal.
Shute & Elsing, of Phoenix, for appellants.
Arthur L. Goodmon and Milton L. Ollerton, of Phoenix, for appellee.
De Concini, Justice. Udall, Stanford, and Phelps, JJ., and Don T. Udall, Superior Judge, concur.Note: Chief Justice LA PRADE being ill, Hon. DON T. UDALL, Judge of Superior Court, Navajo County, was called to sit in his stead.
De Concini, Justice.
[68 Ariz. 370] In April, 1942, D. R. Walker and M. E. Tally, prospecting in the Pioneer Mining District some two and one-half miles south of Superior, Arizona, found perlite ore, a basalt mineral, and located several claims, one of which they named the Arnette. Within a few days of the discovery, they made and posted on the claim their location notice, and filed it with the County Recorder of Pinal County; they erected stone monuments, one at each corner of the Arnette claim and one in the center of each end line; and they dug a discovery shaft which they claimed was over the depth of eight feet as required by Sec. 65-103, ACA 1939. From time to time they took out perlite ore. They filed no notice of intention to hold the claim for the year 1943, and on June 23 of that year they sold the claim to W. D. Cluff, plaintiff, [68 Ariz. 371] who is a resident of California. Thereafter, both Walker and Tally worked for plaintiff, mining the ore and shipping it to him in California in his trucks.
The Congress of the United States, by Act of May 3, 1943, C. 91, 57 Stat. 74, Title 30, Sec. 28a, U.S.C.A., provided for a suspension of annual assessment work on mining claims for the duration of the war if the claimant would file, or cause to be filed, in the same office where his location notice was filed, a notice of his desire to hold the claim. Tally on June 26, 1944, prepared such a notice, signing it "W. D. Cluff by M. E. Tally, agent" and filed it with the County Recorder of Pinal County.
Mrs. MacDonald, the defendant, first went on the claims in the summer of 1944
to look them over. By March 7, 1945 she decided the Arnette claim was abandoned and filed a location notice substantially covering that claim. She hired men to construct monuments and do the discovery work. She also hauled several truck loads of perlite from the claim. When this was called to plaintiff's attention, he protested to defendant. In April she had Walker go over the claim with her, and on May 23 she filed an amended location notice. Plaintiff had his attorney send a quit-claim deed for her signature and upon her refusal to sign this deed, he brought suit to quiet his title to the Arnette.
The judge, sitting without a jury, found for plaintiff. Defendant appeals from the judgment and from the order denying a motion for a new trial.
Defendant's first assignment of error is that the lower court erred in making the following "findings": "The Court finds that all the legal requirements were met in originally locating the Arnette Mining Claim, including length, width, and depth of the discovery shaft thereon;" because the evidence disclosed that the discovery shaft was less than 8 feet deep. This assignment is without merit because there was evidence that the discovery shaft was more than 8 feet deep. This court has held repeatedly that where there is evidence in the record to sustain the lower court's findings, we will not disturb the judgment predicated thereon. Egeland v. Jewell,50 Ariz. 140, 69 P.2d 804; Allen v. Whiting,58 Ariz. 273, 119 P.2d 240; Solomon v. ...