[75 Ariz. 304] Milton L. Ollerton, Phoenix, for appellant.
Edward B. Ashurst, Wickenburg, for appellee.
LA PRADE, Justice.
This case presents an appeal from a portion of the judgment quieting title in appellee, John House, plaintiff below, in and to certain mining claims, which in his mining locations dated April 3, 1951, were designated as Gold Leaf 1, 2 and 3. Appellant Mrs. M. S. Ponton, defendant below, does not question the judgment insofar as it relates to Gold Leaf claims 2 and 3. But she denied that plaintiff had any right, title or interest in the so-called Gold Leaf No. 1, and alleged that she owned the claim by virtue of a quitclaim conveyance to her executed March 31, 1948, by one J. C. Coupal who it was claimed located the same ground March 29, 1948, under the name of Tiger No. 1. By counterclaim defendant asked to have the title to the ground (Tiger No. 1) quieted in her.
Plaintiff admitted in his answer to the counterclaim that Coupal posted a notice of location and recorded same; and that he had discovered 'a deposit of rock bearing precious minerals.' Plaintiff at the trial and in his briefs admitted that defendant had performed the additional statutory discovery work. Plaintiff denied that defendant had performed the necessary assessment work for the year 1950.
[75 Ariz. 305] It was also admitted that Coupal had quitclaimed any interest he had to defendant, Ponton.
By way of digression and enlightenment it appears that the original discovery on this claim was made on 1914 by one Sisson who christened his claims El Tigre (The Tiger). Considerable development and mining was done by the El Tigre Mining Co. Apparently this company fell by the wayside (the record only hints). Presumably the ground was thereafter open to location for in 1932 two men named Spencer and Cowden located three claims, named by them Gold Bullion No. 1 and No. 2 and Velma, covering the identical ground of
El Tigre Nos. 1, 2 and 3. (Bullion No. 1 same as El Tigre No. 1.) These notices of location were original locations and not notices of re-location.
In 1933 or 1934 the defendant, Mrs. Ponton, attempted to locate the same claims. She was met by a quiet title action filed by J. H. Patterson, who secured a judgment quieting title and possession in him of twelve mining claims designated by him as the 'Blackbird Group', and admittedly containing the claim here in question. It is admitted by all concerned that the claims were first called El Tigre, then Gold Bullion, then Blackbird, and later, by the plaintiff, 'The Gold Leaf Group'.
One would think that after the Patterson judgment Spencer and Cowden were out of the picture, but not so, for on April 28, 1938, Spencer (alone) conveyed an undivided one-half interest in the Gold Bullion No. 1 to one John Graef. Nothing further appears from the record until 1944 when there was filed on behalf of Graef a notice of intention to hold and claim of exemption from assessment work. Like notices were filed for the years 1945 to 1949, both inclusive.
Plaintiff claims that the foregoing historical background demonstrates that the title to Tiger No. 1 was in Graef at the time of the attempted location by Coupal (defendant's predecessor in interest) in April of 1948.
Plaintiff's proof to demonstrate that the ground was not open to location in 1948 consisted of:
1. Copies of recorded notices of location by Spencer and Cowden.
2. Quitclaim deed of undivided one-half interest in Gold Bullion No. 1 by ...