Volume 7 — Arizona Reports

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. 'Webster Street, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Graham. Fletcher M. Doan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Webster Street, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Insurance—Defense—Garnishment—Situs of Debt—Jurisdiction —Action In Hem.—Plaintiff in Arizona sued defendant on an insurance policy. Defendant set up as a defense that it was engaged in a general fire-insurance business, with its general offices in San Francisco, where the general manager conducted all business and kept all funds for the payment of losses; that after receipt of plaintiff’s proofs of loss, plaintiff’s California creditors brought suit against it, service being had on plaintiff by publication, and garnished, under the attachment laws of the state of California, the amount due plaintiff upon his policy of insurance, and that upon judgment against plaintiff in said suits defendant discharged its liability to plaintiff by paying to plaintiff’s creditors in garnishment proceedings the full amount due plaintiff upon his policy of insurance. Held, that the situs of the debt was in California, subject to garnishment by plaintiff’s creditors, and therefore payment under said garnishment proceedings was a defense to plaintiff’s action.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Pinal. F. M. Doan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. George R. Davis, Judge.</p> <p>The facts are stated in the opinion,</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Webster Street, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. George It. Davis, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Water and Water-Eights—Diversion—Changing Point of—Trespass—Estoppel.—Where an appropriator of water has for more than six years maintained a diversion dam within and a ditch across the field of another, the owner of the field is estopped by his acquiescence from denying the appropriator’s rights therein upon the ground that he is a trespasser.</p> <p>2. Same—Public Lands—Entry—Subject to Existing Ditch Eights. —One taking possession of unoccupied public land takes it subject to the condition in which he finds it as to rights of way for ditches used in connection with valid appropriations of water.</p> <p>3. Pleadings—Damages—Issues—Amendments.—Where the complaint set out facts and prayed for damages which had accrued up to 1898, and no amendment or supplemental complaint covering the year 1898 was ever filed, it was improper to receive evidence of any injury sustained in 1898, although an amendment, changing the amount of damages claimed, was filed by leave of the court after trial, to conform to the proofs.</p> <p>4. Appeal and Error—Assignments of Error—Must Be Specific— Supreme Court Eule 6, Subd. 2, and Act 21, Laws 1893, Construed—Marks v. Newmark, 3 Ariz. 224, 28 Pag. 960, Followed. —Eule 6 (subd. 2) of the supreme court rules provides: “If the assignment of error be that the court overruled a motion for a new trial, and the motion is based upon more than one ground, the same will not be considered as distinct and specific by this court, unless each ground is separately and distinctly stated in the assignment of errors.” Held, an assignment of error, “that the court erred in overruling a motion for a new trial,” is too general, and will not be considered, notwithstanding act No. 21, Laws 1893, provides that “Every motion for new trial shall specify generally the grounds upon which the motion is founded.”</p> <p>5. Same—Judgment.—The supreme court on appeal can render such judgment or decree as the court below should have rendered, except when it is neeesary that some matter of fact be ascertained, or the damages to be assessed or the matter to be decreed is uncertain.</p>

<p>APPEAL from a judgment of tbe District Court of the Third Judicial District in and for the County of Maricopa. Webster Street, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Criminal Law—Evidence—Dependant as Witness—Cross-Examination op—Extent and Limitation—Bev. Stats. Ariz. 1887, Pen. Code, Par. 2040, Construed.—Where the statute, supra, provides that “A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself; but if he offer himself as a witness, he may be cross-examined by the counsel for the territory as to all matters about which he was examined in chief,” it is error to compel a defendant who has testified in his own behalf concerning the circumstances of the killing and in relation to his movements immediately before and after the homicide to answer on cross-examination as to whether or not he had been previously convicted of other felonies.</p>

<p>1. Mortgages—Defective Acknowledgment—Notice—Constructive— Subsequent Lienoe—Priority of—Par. 0601, Rev. Stats. Ariz. . 1887, Construed.—Under the statute, supra, providing that “all deeds of trust and mortgages whatsoever which shall hereafter be made and executed shall be void as to all creditors and subsequent purchasers for value without notice, unless they shall be acknowledged or proved and filed with the recorder to be recorded, as required by law,” one who acquired a lien on the property subsequent to the execution of a defectively acknowledged mortgage, and who has had no notice of the same, save and except such notice as the recording thereof imparts, is entitled to precedence as a prior lienor in an action to correct such defect and forclose the mortgage.</p> <p>% Same—Same—Correction—Not Retroactive—Pars. 2601 and 2621, Rev. Stats. Ariz. 1887, Construed.—Paragraph .2621, supra, provides: “When the acknowledgment or proof of the execution of any instrument in writing may be properly made, but defectively certified, any party interested may have an action in the district court to obtain a judgment correcting the certificate. This statute in connection with par. 2601, supra, must be construed not as permitting a defective certificate of acknowledgment to be amended so as to relate back and give constructive notice from the time of the recording of such instrument, but only as affording a remedy for the correction of such defective certificate so as to make it effective as notice against all purchasers, encumbrancers, and creditors from the time the defect be cured.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise. George It. Davis, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. R. E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Appeal and Error—Record—Minute Entry of Evidence Offered not Part of—Laws of Ariz. 1897, Act No. 71, Sec. 2, Construed. —Section 2 of act No. 71, supra, provides that when an appeal or writ of error is taken the clerk shall certify, among other things, all minute orders in the case. A recitation of what testimony was introduced is not a minute order within the meaning of the statute, and is not intended to take the place of a statement of facts or a transcript of the evidence provided for by section 1 of said act.</p> <p>2. Same—Same—Evidence—Sufficiency—Admissibility. — This court caunot review questions presented by assignments of error as to the admissibility and sufficiency where the only record is a minute entry of the clerk, stating that the plaintiff introduced certain evidence, rested, and the cause was submitted; for even if it is to be considered as a part of the record, it does not show that defendants objected to the admission of such evidence or that other or further evidence was not introduced by plaintiff.</p> <p>3. Same—Same—Briefs—Agreed Statement of Pacts—Must Be Approved by Trial Court.—The agreement of both appellee and appellants in their briefs as to the evidence does not afford grounds for review, as even an agreed statement of facts cannot become a part of the record of any cause on appeal, unless such agreed statement shall have first received the approval of the trial court.</p>

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. R. E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Appeal and Error—Assignment op Errors—Failure to Make— Waiver op All Errors not Fundamental.—A failure to comply with the statutory requirements as to assignments of error amounts to a waiver of all errors which are not fundamental, and there being no assignment of error, and none appearing on the face of the record, the judgment must be affirmed.</p>

<p>1. Appeal and Error—Assignments of Error—Must Be Specific— In Brief—Waiver of Errors not Assigned—Act No. 71, Sec. 4, Laws of Ariz. 1897, and Bules of Court Cited.—The statutes, supra, relating to appeals provide, among other things, “that the briefs of the plaintiff in error or appellant shall contain a distinct enumeration, in the form of propositions, of the several errors relied on, and all errors, not assigned in the printed brief, shall be deemed to have been waived.” The rules of court, supra, also provide that all assignments of errors must distinctly specify each ground of error relied upon. Where no errors are assigned, and none appear on the face of the record, the judgment of the lower court will be affirmed, notwithstanding there may exist a meritorious defense which the defendant might have urged in the court below.</p> <p>2. Same—Same—Cannot Baise Issuable Facts—Must Show Error of Court in Ruling—Becord—No Error Appearing in, Judgment Affirmed if no Assignment of Errors—Act No. 71, Sec. 4, Laws of Ariz. 1897, and Rules of Court Cited.—On appeal from judgment in favor of plaintiff, in an action on an adverse claim to a mining location, appellant presented no assignment of errors, but submitted two propositions in its brief, viz.: “First, that this action was not commenced within thirty days of filing the adverse; seeond, that the verdict is contrary to the evidence and the weight of the evidence.” These propositions are of issuable facts, and do not assign or impute error in the rulings or judgment of the lower court. Therefore in accordance with the statutes and rules of court, supra, no error appearing in the record, the judgment will be affirmed, although appellant might be able to establish both facts as set forth.</p> <p>3. Same—Mines and Mining—Adverse—Limitations—Review—Scope —Sec. 2326, Rev. Stats. TJ. S., Cited.—The statute, supra, provides that an action on an adverse must be brought within thirty days after the adverse claim is filed. An issue as to whether an action was brought within this time, when not raised in the lower court, cannot be reviewed when presented for the first time on appeal.</p> <p>4. Statute of Limitations—Substantive Defense—Pleading — Must Be Raised by Answer or Plea—Mines and Mining—Adverse— Sec. 2326, Rev. Stats. U. S., Cited.—An issue as to whether an action was brought within the thirty days required by statute, supra, was sought to be raised by a motion for judgment on the pleadings and a motion to strike from the files. Meld, that the statute of limitations is a substantive defense which can only be raised by answer or plea.</p> <p>5. Appeal and Error—Record—Verdict—Assignments of Error— Conflict in Evidence.—Where in addition to the record failing to show that the appellant moved to have the verdict set aside as against the evidence it appears that neither the refusal of the trial court so to do nor to grant a new trial on the ground that the verdict was against the evidence is assigned as error, and that there is substantial evidence to support the verdict, although there is a conflict, the verdict of the jury will not be disturbed on appeal.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. George R. Davis, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Certiorari—When Proper Bemedy—Forcible Entry and Detainer —Bond on Appeal—Jurisdiction—Pars. 134, 2026, Bev. Stats. Ariz., Construed.—A writ of certiorari may be issued as provided by the Bevised Statutes of Arizona of 1887 (par. 134) when an inferior court has exceeded its jurisdiction, and there is no appeal, nor any speedy and adequate remedy. In forcible entry and detainer cases paragraph 2026 of the Bevised Statutes of Arizona of 1887 limits an appeal from the district court to cases where the damages awarded exceed on hundred dollars. On appeal from a decision of a justice in a case of forcible entry and detainer defendant gave a jurisdietionally defective bond, and the district court overruled the plaintiff’s motion to dismiss appeal for want of a proper bond. It appearing that no damages could be awarded against the plaintiff, certiorari is the proper remedy to test the question of the jurisdiction of the district court.</p> <p>2. Appeal-Bond—In Forcible Entry and Detainer—Jurisdictional— When Defective—Pars. 2021, 2022, Bev. Stats. Ariz. 1887, Cited. —Where an appeal-bond in an action for forcible entry and detainer provided that appellant should prosecute said appeal to effect, and should fully pay off, satisfy, and perform the judgment which may be rendered against him on said appeal,' said bond was defective because it limited the liability to three hundred dollars. . Paragraph 2021, supra, provides that the condition of such an appeal-bond must be that the appellant shall prosecute his appeal with effect or pay all costs and damages which may be adjudged against him, and neither paragraphs 2021 nor 2022, supra, provides for a limitation of the amount of the liability.</p> <p>3. Same—Defective—New Bond—Cannot Be Given after Time for Taking Appeal Has Expired—Jurisdictional^-Putnam v. Putnam, 2 Ariz. 259, 24 Pac. 320; Johnston v. Letson, 3 Ariz. 344, 29 Pac. 893; Crowley v. Beilly, 3 Ariz. 286, 29 Pac. 14; McDonald v. Ellis, 4 Ariz. 189, 36 Pac. 37, Approved.—Where an appeal-bond is made jurisdictional, any substantial variation from the conditions of the bond required to be given defeats the jurisdiction of the appellate court, and no bond can be given such as to confer jurisdiction after the expiration of the time limited by statute for taking an appeal.</p>

<p>1. Mines and Mining—Location of Claim—Notice of Location— Description — Construction.—As to a mining location notice, there is no rule of necessity, such as exists in the construction of a deed, which requires that the term “easterly,” used without qualifying language, shall denote due east, and the term “westerly” shall denote due west. In the sense in which “easterly” is used by the miner and prospector, the term denotes the general course of a vein or location running nearer towards the east than any of the other cardinal points of the compass.</p> <p>2. Same—Same—Same—Same—Same—Where Boundaries Are not Definitely Located by Erection of Monuments at Time—Area Reserved.—A notice of location which gives the course of the location as running westerly so many feet from a discovery shaft or point of discovery, until boundaries are definitely located by the ereetiou of monuments, must be held to reserve from entry by subsequent locators the surface area which might be included within any location so made that, were a line drawn lengthwise through the center of said claim from the west center end through the point of discovery to the east center end of said claim, said line would lie at some point between east forty-five degrees north and east forty-five degrees south from the point of discovery.</p> <p>3. Same •— Same — Same — Same — Same —• Where Monuments Are Placed—Intervening Eights Protected.—Should the locator, at the time of posting his notice, in addition to giving the general course of his vein, place monuments at the center of each end-line, and thus definitely give notice to subsequent locators as to the meaning and intent of the language used in his notice as to the general course of his location, under the law he is bound by the location thus made and defined, so that he may not thereafter, and during the ninety days permitted for the perfection of his location, change the course of his location to the prejudice of intervening rights.</p> <p>4. Same—Same—Same—Same—Same—Instructions to Jury.—Where the original location notice as posted' did not definitely locate the easterly end of the claim, the court properly refused to charge that the law requires the location notice to substantially conform to the location certificate, and if the locator changed the easterly end of the claim from where it was first located by his location notice to a point eight hundred feet northerly, as fixed by the location-certificate, such change was void, as it was not a substantial compliance with the notice.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Webster Street, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Practice—Demurrer to Answer—Judgment on Pleadings—Miles v. McCallan, 1 Ariz. 491, 3 Pac. 610, Approved..—There is no express provision in onr statute for a demurrer to the answer, and judgment may he rendered upon the pleadings when’ the answer does not deny any of the material allegations of the complaint, nor set up new matter constituting a defense.</p> <p>2. Bonds—Statutory—Common Law—Validity—Contested Election —Pars. 1732, 1750, 3065, Rev. Stats. Ariz. 1887, Construed.— Pending an appeal in a contest to determine who was elected city marshal, defendant gave a bond to refund any salary paid him by the city if declared not entitled to the office. Paragraph 1732, supra, provides for contests of elections, and paragraph 1750, supra, makes provision for such a bond, except that it uses the word “county,” and does not in specific terms extend to any other political subdivision. Defendants set Up no, defense to the bond other than that is was without legal authority. Reid, that as under paragraph 3065, supra, the defendant could not have received money for his services, as city marshal from the city pending the appeal, unless he made a contract protecting the city in the payment of such salary, the bond was valid even though not a statutory bond, and he and his sureties were responsible thereon.</p> <p>‘3. Same—To Refund Salary—Measure of Liability.—Defendant executed a bond conditioned to refund the salary paid to him as city marshal by the city pending an appeal, provided he was declared not entitled to the office. Reid, that the terms of the bond are controlling, and all salary must be refunded, and not merely any' damages which the city might have suffered.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise. George R. Davis, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise. George R. Davis, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Appeal and Error—Record—Motion por New Trial—Presumption—Denied by Operation op Statute—When—Daws op Ariz. 1891, Act No. 49, Cited.—Where the record is silent as to any action, -which the court might have taken on the motion for a new trial, it is proper to assume that it was not expressly ruled upon by tbe court, but was denied by operation of the statute, supra, providing that in case there shall be no ruling on said motion for a new trial during the term at which it was filed, then such motion shall be deemed to have been denied.</p> <p>2. Same—Same—Same—Time por Filing—Par. 836, Rev. Stats. Ariz. 1887, Held Mandatory—Spicer v. Simms, 6 Ariz. 347, 57 Pag. 610, Cited.—Where a motion for a new trial is not filed within two days after judgment, the district court is not required to hear and decide it, the statute, supra, providing that all motions for new trials shall be made within two days after the rendition of the verdict or judgment being mandatory.</p> <p>3. Same—Same—Same—Same—Spicer v. Simms, 6 Ariz. 347, 57 Pac. 610, Cited and Distinguished.—While the court would not be required to hear and decide a motion for new trial, made more than two days after verdict and judgment, yet it has the power so to do at any time during the term at which judgment was rendered..</p> <p>4. Same—Same—Same—Same—How Computed—Sundays—Par. 920, Rev. Stats. Ariz. 1887, Construed.—An intermediate Sunday or holiday is included in computing the two days allowed for making motion for new trial under the statute, supra, providing that the time in which any act provided by law is to be done is to be computed by excluding the first day and including the last day, unless the last day is a holiday, and then it is also excluded.</p> <p>5. Same—Same—Same—Necessity for—Review—Scope—Putnam v. Putnam, 3 Ariz. 182, 24 Pao. 320; Richards v. Green, 3 Ariz. 227, 32 Pac. 266, Hollowed.—On appeal no alleged error will be reviewed which might have been good ground for a new trial in the court below, unless the same shall have been presented to such court by a motion for a new trial, and the motion overruled.</p> <p>6. Same—Same—Assignment of Errors-—Brief—Waiver of Errors— Par. 940, Rev. Stats. Ariz. 1887, and Act No. 71, Laws of Ariz. 1897, Construed.—Paragraph 940 of the Revised Statutes of Arizona of 1887 required in all cases the appellant shall file with the clerk of the court below an assignment of errors. Act No. 71, Laws of Arizona of 1897, did not do away with the necessity of filing assignments of errors. Section 4 of act No. 71, supra, providing that it shall not be necessary to assign or file any assignment of errors in the court below or in the supreme court except those assigned in the brief of the appellant, but that the brief of the appellant shall contain an enumeration of the errors relied upon, and that all errors not assigned in the printed brief shall be deemed to have been waived, does not do away with the necessity of filing assignments of errors, as contemplated by paragraph 940, supra, and this court will not consider propositions argued in the briefs in the absence of an assignment of errors.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. ^Webster Street, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Santa Cruz. George K». Davis, Judge.</p> <p>The facts are stated in the opinion.</p>

ERROR from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Webster Street, Judge. The facts are stated in the opinion.

WRIT OF ERROR from a judgment of the District Court of the Second Judicial District in and for the County of Graham. F. M. Doan, Judge. The facts are stated in the opinion.

<p>APPEAL from a judgment of the District Court of the. Fourth Judicial District in and for the County of Yavapai. Webster Street, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Cbimenai, Law — Evidence—Ceoss-Examination—Scope—Impeachment.—In a prosecution for assault -with intent to commit murder a witness for the defense testified that she was present when the quarrel began; that she became frightened and ran out of the room; that there was then a noise like the report of a gun, and then a pistol-shot, but that she did not see defendant have a gun. Eeld, that it was proper to allow the district attorney to ask in cross-examination whether she did not say when she ran into an adjoining place, “Tamborino has shot the butcher,” and questions of similar import, as it is proper to bring out everything said by a witness about the transaction, either at the time it happened or afterwards, inconsistent with or tending to contradict her evidence.</p> <p>2. Same—Same—Impeachment—What Statements Mat Be.—Proof of contradictory statements upon a material point made by a witness may be introduced in evidence to impeach the witness after he has answered that he does not remember whether he made the contradictory statements or not. He cannot by answering that he has no recollection of having made the former statements imputed to him defeat the right of the impeaching party to prove that he did make such statements.</p>

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. R. E. Sloan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise. George R. Davis, Judge.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Webster Street, Judge.</p>

<p>1. Appeal and Error—Record—Contents—Evidence — Must Be Incorporated before Errors Dependent thereon Will Be Reviewed.—On appeal the eourt will not review errors which involve a consideration of the facts disclosed by the evidence, unless the evidence is incorporated in the record.</p> <p>2. Water and Water-Rights — Canal Companies — Negligence — Pleadings—Issues-—-Instructions to Jury.—Where the complaint alleged that plaintiff’s land was flooded and damaged by reason of the negligence of defendant in the operation of its canal, and the answer denied the negligence, but contained no allegation of contributory negligence, a charge to the jury that if plaintiff’s horses and cattle tramped down the borders of the canal and caused the break, or if any direct agency of the plaintiff caused the break, he could not recover, is not erroneous, upon the theory that it is an instruction to find for the defendant because of plaintiff’s contributory negligence, as under the pleadings, the evidence not being in the record, any evidence tending to show that the break was by the direet acts or agency of plaintiff, and such acts were of such nature or committed under such circumstances as not to import negligence on the part of the defendant, in not being aware of them or anticipating their results, would have been competent and would have fully justified the instruction.</p> <p>3. Sam:e—Samf—Sam:e—Damages—Pleadings—Issues—Scope of Evidence—Instructions to Jury.—Where the complaint alleged that plaintiff’s land was flooded and damaged by reason of negligence of defendant in the operation of its canal, and the answer denied every material allegation of the complaint, the question of damage was in issue, and evidence would have been competent to show that the flooding was a benefit instead of a damage. The evidence not having been incorporated in the record, it must be assumed that evidence was given which rendered proper an instruction that plaintiff could not recover if his lands were benefited instead of damaged by the flood.</p> <p>4. Costs—Largely Discretionary with the Trial Court—Court Be-porter’s Per Diem—Bules op Court—Presumptions—Begularity op Proceedings—Pars. 895, 896, 902, 912, Bev. Stats. Ariz. 1887, Cited.-—The statutes, supra, leave the determination and disposition of the costs largely in the discretion of the trial court. The rules of the trial court relative to the per diem of the court reporter not being incorporated in the reeord, and the record showing that the court refused on motion to strike out an item in the cost-bill for the compensation of the court reporter, the presumption in favor of the regularity of procedure must prevail, and it will be assumed that the trial court acted in accordance with its rules.</p>

<p>1. Live-Stock:—Transfer—Bill of Sale—Validity of—Evidence— Act No. 6, Sec. 61, Laws of 1897, Construed.—Section 61, supra, provides that cattle running at large upon the range may be transferred by a sale and delivery of the marks and brands of such animals. It does not, however, prohibit the sale or transfer of live-stock in any other manner. Held, that the owner of an undivided interest in cattle running at large upon the range can transfer his interest the same as any other personal property, without delivery, by a bill of sale properly executed, acknowledged, and recorded.</p> <p>2. Same—Marks and Brands—Registration—Certificate—Evidence of Ownership of Brand but not of Cattle—Act No. 6, Sec. 50, Laws of 1897, Construed.—The statute, supra, makes the certificate of the registration of a brand on cattle competent evidence of registration of such brand and prima facie evidence of ownership. In an action against an administratrix to recover an undivided interest in cattle on the range, the title to the brand not being in controversy, a certificate issued pursuant to the provisions of statute, swpra, is not competent evidence for the purpose of showing that the title to the cattle is in the party in whose-name the brand is recorded.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise. George R. Davis, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Webster Street, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Judicial Notice—Bising and Setting of Sun.—Courts take judicial notice of the time of the rising and setting of the sun.</p> <p>2. Criminal Law—Burglary—Defined—Degrees—Night-Time — Defined—Evidence—Beviewed and Held Sufficient to Convict of Burglary in Pirst Degree—Bev. Stats. Ariz. 1887, Pars. 713, 715, 717, Cited.—Paragraph 713, supra, provides that “every person who enters any . . . store . . . with intent to commit grand or petit larceny, or any felony, is guilty of burglary.” Paragraph 715,. supra, provides that “Every burglary committed in the nighttime is burglary of the first degree, and every burglary committed in the day-time is burglary of the second degree.” Paragraph 717, supra, provides that “The phrase ‘night-time,’ as used in this chapter, means the period between sunset and sunrise.” The owner of a store testified that when he closed on the night of January 10th he noticed nothing wrong; that he was called and told of the burglary between 7 and 7:30 o’clock in the morning of January 11th. Sunrise occurred at 7:04 on the morning of January 11th. The evidence showed that the cellar door was broken open, a hole cut through the floor, the storeroom broken into, the safe blown open, and its contents methodically rifled and the escape of the burglar. Held, that there was sufficient evidence from which the jury could rightfully infer that .the burglary was committed in the night-time.</p> <p>3. Same — Same — Larceny—Evidence—Presumptions—Becent Possession of Stolen Goods—Innocence Presumed until .Guilt Proven—Bev. Stats. Ariz. 1887, Pen. Code, Par. 1645, Cited— Territory v. Casio, 1 Ariz. 485, 2 Pac. 755, Expressly Overruled.'—-The possession of stolen goods by the accused recently after a burglary or larceny, if unexplained, is a circumstance from which the jury may infer complicity therein, but the law raises no presumption from that or any other fact against a defendant, expressly declaring in the statute, supra, that “a defendant . . . is presumed to be innocent until the contrary be proved, and in ease of a reasonable doubt whether his guilt be satisfactorily shown, he is entitled to be acquitted.” Territory v. Casio, supra, is expressly overruled.</p> <p>4. Same—Same—Charge to Jury—Stating a Legal Principal in the Abstract Applicable to the Evidence in the Case not Error— Nor an Assumption of the Existence of Pacts.—A charge that “■where goods have been feloniously taken by means of a burglary, and they are immediately or soon thereafter found in the actual or exclusive possession of a person who gives a false account, or who refuses to give any account, of the manner in which the goods came into his possession, proof of such possession and guilty conduct is evidence tending to prove not only that he stole the goods, but that he made use of the means by which access to them was obtained,” does not assume the existence of certain facts as proven,—viz., that the defendant gave a false account, or refused to give any account, of the manner in which the checks came into his,possession, and that his conduct was guilty at the time he was found with them in his possession,—as it only states a legal principle in the abstract, applicable to the evidence in the case, and hence is not objectionable.</p> <p>5. Same—Same—Larceny—Evidence—Facts Tending to Prove Larceny Tend to Prove Burglary, where Larceny Committed in Connection with Burglary—Charge to Jury—Expression op Opinion by Court—What Is not.—A larceny having been committed in connection with a burglary, testimony which tends to prove the larceny also tends to prove the commission of the burglary. It is not trenching upon the province of the jury to say that particular evidence tends to prove a matter which it clearly does tend to establish. Such an instruction is not an expression of opinion as to the weight or effect of the evidence, nor that any fact has been proved thereby.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Graham. P. M. Doan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Pourth Judicial District in and for the County of Yavapai. R. E. Sloan, Judge.</p>

<p>1. Public Lands—Town-sites-—Trustee—Authority to Dispose op Unoccupied Lots—Whence Derived—Bev. Stats. U. S., Sec. 2387, Comp. Laws Ariz., 1871, Sec. 3, and Bev. Stats. Ariz. 1887, Title 9, Chap. 2, Secs. 1, 22, Construed—Clark v. Titus, 2 Ariz. 122, 21 Pac. 818, Followed.—The Bevised Statutes of the United States (See. 2387, supra) provides that certain officers may enter at the proper land office land settled and occupied as a town-site, in trust for the several use and 'benefit of the occupants thereof, the execution of said trust as to the disposal and sale of lots in said town, and of the proceeds thereof to be regulated by the legislature of the territory or state in which the same may be situated. The Compiled Laws of Arizona of 1871 (chap. £9, sec. 3), in force when the entry of the town-site of Tucson was made, provides that it shall be the duty of the party entering such town-site “to convey the same to the occupants and inhabitants thereof, according to their respective interests, in the manner hereinafter described.” The Bevised Statutes of Arizona of 1887, supra, provides that whenever three or more citizens of a town located, or that may hereafter be located, on public lands request the proper authorities in writing, such authorities shall enter so much of the land under the act of Congress, supra, as is necessary for town purposes. Section 22, supra, provides that the lots undisposed of, the title to which remains in the trustee, shall be subject to entry and purchase from the trustee. Held, that mandamus will not lie to compel the trustee to transfer certain lots to petitioner under the provisions of Revised Statutes of Arizona of 1887, supra, inasmuch as the Compiled Laws of 1871, supra, controls the disposal of lots in Tucson.</p>

ERROR from a judgment ol the District Court of the Second Judicial District in and for the County of Pinal. F. M. Doan, Judge. The facts are stated in the opinion.

<p>1. Supreme Court — Jurisdiction — Power — Writ op Prohibition— May Be Issued although not Mentioned Eo Nomine in Statute —Rev. Stats. IT. S., Secs. 1866^ 1868, and Rev. Stats. Ariz. 1887, Pars. 591, 594, Cited and Construed.—Section 1866 of the Revised Statutes of the United States provides that original and appellate jurisdiction of territorial courts shall be limited “by law.” Section 1868 of the Revised Statutes of the United States provides that the supreme courts of every territory shall possess chancery as well as common-law jurisdiction. Paragraph 591 of the Revised Statutes of Arizona of 1887 vests the supreme court, in addition to the powers conferred on it by the laws of the United States, with full powers to discharge all duties required of it by the laws of the territory. Paragraph 594, supra, gives the court power to issue all writs necessary to a complete exercise of the powers conferred by law. Held, that the power of the supreme court to issue writs of prohibition has been conferred by Congress, and recognized by the territorial legislature, although no statute may exist which mentions the writ of prohibition eo nomine.</p> <p>2. Writ op Prohibition—When Issues as Matter op Right—When Discretionary with Court.—Where it appears that a court whose action is sought to be prohibited has clearly no jurisdiction of the cause originally, or of some collateral matter arising therein, a party who has objected to the jurisdiction at the outset, and has no other remedy, is entitled to a writ of prohibition as a matter of right. But where there is another legal remedy, by appeal or otherwise, or where the question of the jurisdiction of the court is doubtful, or depends on facts which are not made matter of record, or where the application is made by a stranger, the granting or refusal of the writ is discretionary.</p> <p>3. Same—Same—Same—Pacts Reviewed and Writ Denied.—Defendant brought suit against a foreign corporation and other persons, some of whom were non-residents, alleging that the corporation owned the property and was doing business in the county where the action was commenced, and that' plaintiff and the managers of the corporation were residents of said county, and that the corporation, through its managers, was operating its property in such manner as to be detrimental to the interests of plaintiff, who was largely interested therein, and alleging other matters which could only be questioned in a court of the corporation’s domicile. On an application for a writ of prohibition to prohibit the district court from trying said cause, it not being clear that the district court had no jurisdiction, the writ would not issue as a matter of right; and if the district court was in error in holding that it had jurisdiction, such decision being appealable, the granting of the writ being discretionary, it would be denied.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. George E. Davis, Judge.</p> <p>The. facts are stated in the opinion.</p>

<p>1. Appeal and Error — Supreme Court — Jurisdiction—Amount Involved—Recovery—Rev. Stats. Ariz. 1887, Par. 593, Cited.— "Under the statute, supra, providing that the supreme court shall have jurisdiction to review upon appeal a judgment in an action or proceeding commenced in the district courts when the matter in dispute exceeds two hundred dollars, an appeal by the defendant from a judgment in favor of plaintiff for one hundred and thirty-four dollars, though suit was brought for three hundred and twenty-four dollars, will not lie, the defendant seeking no affirmative relief.</p> <p>2. Same — Same — Same—‘Same—Taxation—Paying Inspector eor Tagging Hides not—Rev. Stats. .Ariz. 1887, Pars. 592, 593, and Laws Ariz. 1897, Act No. 6, Sec. 39, Cited.—Paragraphs 592 and 593, supra, provide for appeal to the supreme court from a district court when the amount in controversy exceeds one hundred dollars, when the legality of any tax, toll, impost, or municipal fine is in question, or the amount in controversy exceeds two hundred dollars. Act No. 6, section 39, supra, makes it the duty of the inspector to inspect all animals slaughtered for sale in his district and place a tag on every hide so inspected, for which inspection the butcher must pay twenty-five cents a hide. An appeal will not lie on behalf of defendant from a judgment for one hundred and thirty-'four dollars for inspections made, as the services required are intended for the protection both of the butcher and the public, and the fees cannot be considered either a tax, toll, impost, or municipal fine.</p>

<p>1. Appeal and Error—Assignment of Errors—Must Be Specific— Marks v. Newmark, 3 Ariz. 224, 28 Pag. 960; Christy v. Arnold, 4 Ariz. 263, 36 Pac. 918; MAin v. Main, ante, p. 149, 60 Pac. 888, Followed—Supreme Court Bules 3 and 6 Cited.— Under supreme court rules Nos. 3 and 6, requiring that a specification of the errors relied upon must he particularly and separately stated, and that all assignments of errors must distinctly specify each ground of error relied upon and the particular ruling complained of, appellant’s assignment of errors stating that the court erred in admitting evidence and in rejecting evidence, that the evidence did not sustain the judgment, finding, or verdict, and that the judgment was contrary to the law and evidence; is too general and indefinite for consideration, and, no error appearing upon the face of the record, the judgment must he affirmed.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. [Webster Street, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Webster Street, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Trusts — Resulting Trust —Praud—Pleading.—P.-and D., who lived in Chicago, became joint purchasers of certain mining property in Arizona, the deed being placed in escrow in Prescott, in the name of P. for the benefit of both, said deed containing a forfeiture clause on the non-payment of any of the installments of the purchase price by P. Thereafter a corporation was formed to own and operate the mine, and an agreement was entered into whereby F. was to transfer the mining property to the corporation and receive in payment therefor a certain amount of stock issued to himself and D. Shortly before a certain payment became due, I). went to Arizona, F. paying half the expense of the trip, for the purpose of becoming thoroughly acquainted with the property in order to more effectually sell the stock. D. agreed to make-the next payment when it fell due, or to notify F. in time for him to do it. Upon his arrival in Arizona, D. represented that F. was irresponsible and had no intention of completing the purchase. He then secured an agreement from the owner of the property that it was to be conveyed to him upon the same terms, provided F. failed to make the payment. D. then notified F. that he had secured an extension of time for the payment. After default in payment, D. secured and transferred the property to-the defendant corporation, which had full knowledge of the facts, and received therefor the stock which should have 'been issued tobimself and F. In an action by F. to recover from D. and the corporation the value of the stock which should have been issued to him, held, that a complaint setting out the above facts stated a good cause of action, and a demurrer thereto was properly overruled.</p> <p>2. Same —Same — Same — Same — Fraud Need not Be Alleged in Action against Trustee for Appropriating Property of Cestui que Trust.—Where F. and D. were jointly interested in the purchase of certain mining property and its transfer to a corporation for stock therein, and D. secured the issuance of all the stock to-himself, to the exclusion of his co-owner and partner in the transaction, the fiduciary relations existing between F. and D. render it unnecessary for F. to allege and prove actual fraud in an action to recover from D. the value of the stock which should have been delivered to him.</p> <p>3. Same—Same—Same—Corporation—Liable to Cestui que Trust where It Transfers His Property to Trustee with Notice of Fraud.—Where F. and D. were jointly interested in the purchase of certain mining property and its transfer to a corporation for stock therein, and D. secured the issuance of all the stock to himself to the exclusion of his co-owner and partner in the transaction, by certain fraudulent acts, and tbe corporation had full knowledge of the whole transaction, held, that the corporation by so transferring the stock to D. rendered itself liable to F. for the value of his share thereof.</p>

<p>1. Mandamus—Operates on Office—Abatement—Change of Personnel Does not Cause—Revivor—Not Necessary against Successor of Officer.—The writ of mandamus operates on the office rather than on the individual who occupies the office, and therefore does not abate by a change in the personnel of the office, and no revivor is necessary against a successor of the officer against whom, the proceedings were instituted.</p> <p>2. Legislative Authority—Of Congress—Of Territorial Legislature— Organic Law — Paramount Law — What Constitutes— Constitutional Law—Acts Cong. June 25, 1890, August 3, 1894,, June 6, 1896, and Rev. Stats. Ariz. 1887, Tit. 31, and Laws Ariz. March 19, 1891, Cited—Laws Ariz. 1899, Act’ No. 32, Held Yoid.—Congress having full authority to legislate directly for the territory, and the territorial legislature having only such power as is specifically delegated to it by Congress, whenever the latter legislates upon any subject pertaining to the territory such legislation has the force and effect of a constitutional provision, and becomes a part of the Organic Law, and therefore the act of Congress of June 25, 1890, supra, amending, approving, and confirming, “subject to future territorial legislation,” Revised Statutes of Arizona, title 31, supra, creating a board of loan commissioners for the funding of the existing territorial indebtedness, having been accepted by the territorial legislature by act of March 19, 1891, supra, is now the paramount law upon the subject of funding, and becomes a part of the Organic Law, to the extent that it may not be changed so as to render any of its provisions inoperative by any act of the territorial legislature, except with the express consent of Congress, and act No. 32, supra, repealing the territorial acts creating such commission is void.</p> <p>3. Statutory Construction—Statutes not in Express Terms Repugnant—Repeal by Implication.—When two acts are not in express terms repugnant, yet if the latter act covers the whole subject of the former, and embraces new provisions, plainly showing that it is intended as a substitute for the first act, it will operate as a repeal of that act.</p> <p>4. County Bonds — Refunding — Good Faith—’Railroad Construction—Mandamus—Laws Ariz., Act Feb. 21, 1883, Acts Cong., June 25, 1890, and June 26, 1896, Cited and Construed.—The Territorial Aet of February 21, 1883, supra, authorized Pima County to issue bonds in the amount of two hundred thousand dollars, to be exchanged for bonds of a railroad, thereafter to be constructed, in the following manner: Fifty thousand dollars when the company was organized, and a like amount “so often as each five miles of said railroad shall have been graded, laid with ties and iron,” the proof the work having been performed to be the certificate of the county surveyor. The company was organized and ten miles of the road graded and laid with ties and iron, and one hundred and fifty thousand dollars in bonds were issued to the company according to the terms of the aet. Work on the road was thereafter abandoned, the road was never completed, nor was any payment either of interest or principal made by the county upon the bonds. The aet of Congress of June 6, 1896, supra, having provided that all outstanding bonds of the territory and counties thereof which had.been sold or exchanged in good faith in compliance with the terms of the acts of the legislature by which they were authorized should be funded in accordance with the aet of Congress of June 25, 1890, creating a board of loan commissioners, whose duty it was to provide for the redeeming and refunding of the territorial or county indebtedness by the issuance of bonds therefor, and mandamus being brought to compel the loan commissioners to fund the bonds of Pima County issued to the railroad company: Held, that the exchange of bonds was not rendered fraudulent by the fact that the railroad had not been completed, the issuance and payment not being dependent upon completion, and that the bonds should therefore be funded.</p>

<p>APPEAL from-a judgment of the District Court of the Pourth Judicial District in and for the County of Yavapai.. B. E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the. District Court of the Fourth Judicial District in and for the County of Yavapai. R. E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. George E. Davis, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Water and Water-Eights—Irrigation—Unincorporated Association—Members-—Status—Tenants in Common.—The status of the members of an unincorporated irrigating ditch company, in so far as the dam and ditch, the property of the association, is concerned, is that of tenancy in common.</p> <p>2. Same—Same—Same—Title to Ditch—Appropriation.—There is a clear distinction between the property of an unincorporated irrigating ditch association, which consists of the dam and ditch, and which is held in common by the members of the association, and the right of appropriation which each member thereof has by virtue of being the owner or possessor of land irrigated by water from the river by means of such dam and ditch.</p> <p>3. Same—Same—Same—Certificates of Stock—Contracts — Appropriation—Transfer.—Where an unincorporated irrigating ditch company issued to its members certificates which were treated by the members as evidencing their titles to the dam and ditch the property of the association, their right to a voice in the management and control of the property, and also the amount and extent of the appropriation of water by each, or at least as evidencing the measure of their right in times of scarcity, such certificates are evidences of the contract between the several members' constituting the association, not only as to the ditch and dam, but as to the distribution of the water diverted thereby, and the sale and alienation thereof is in effect a conveyance not only of the interest in the dam and ditch but as well the water-right owned and possessed by the original holder thereof.</p> <p>4. Same—Same—Same—Same—Appropriator—-Priority—Governs in Absence of Contract — Water-Users under a Common Ditch Max Contract among Themselves as to Method of Service.— Independent of any statutory provision upon the subject, wherever the right of prior appropriation of water is recognized and enforced, each appropriator of water under a ditch, whether such ditch be held in common or owned by a corporation, is entitled, in the absence of a contract between the owners of the ditch, to be supplied in the order of his priority of appropriation. But this right is a property right and one which may be the subject of contract, and there is no statute in this territory which prevents appropriates of water by means of a common diteh from agreeing among themselves as to the manner in which they may enjoy their several appropriations.</p> <p>5. Same—Same—Same—Priority—According to Oldest Titles Limited to Public Ditches—Private Ditches—Priority Determined by Appropriation and Use—Bev. Stats. Ariz. 1887, Pars. 3201, 3215, 3223, Construed.—Paragraph 3215, supra, providing that the oldest land titles shall have precedence • always in the use of water in times of scarcity, in its strict application must be limited to public ditches. Paragraphs 3201, 3215, and 3223 together, so far as private ditches are concerned, are to be construed as declaring that not mere priority of diversion, but priority of use and appropriation of water upon particular lands, shall govern in determining conflicting rights.</p> <p>G. Same—Same—Same—Members—Appropriation—Sale—Change op Use—Application op Water to Land Other than that por which Originally Appropriated—Eev. Stats. Ariz. 1887, Pars. 3201, 3215, 3223, Construed.—The statutes, supra, while recognizing the ownership and possession of land as essential to the acquisition and enjoyment of a water-right for purposes of irrigation, and while limiting its use to the particular lands to which it is attached, do not deny the right of alienation and the transfer of such right from one particular tract of land to another, except under the limitations that the transferee is of the class of persons-entitled to make a valid appropriation by virtue of being the owner or possessor of arable and irrigable land, and that such change does not injure another having rights which have accrued at the time of such transfer and change of use.</p> <p>7. Same —Same — Same — Same-U3stoppel—Dalton v. Eentaria, 2 Ariz. 275, 15 Pag. 37, Cited.—Where certain holders of certificates in an unincorporated ditch company, which represented an interest in the ditch and water diverted thereby, sold such certificates to persons who located under an extension of the canal, and these transferees up to the time of the commencement of the suit, being from eight to sixteen years, with the acquiescence of the other holders of certificates, have enjoyed the same use of water, and the same equal division in times of scarcity, and have reclaimed and cultivated lands under the belief that they had an equal right to water, those who retained their certificates and original holdings are thereby estopped from asserting a priority of right in themselves.</p> <p>8. Same—Same—Prescription.—Where certain Indians acquired rights to water from a canal by labor in the construction and maintenance of the canal, without becoming shareholders, and have been accorded such rights for twenty years or more, those rights are in their nature prescriptive, and a judgment apportioning them water in accordance with the amount shown to have been used, upon condition that they shall perform labor and contribute a proportionate amount toward the expense of maintenance, as they have been accustomed to do, is not unreasonable or erroneous.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. R. E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Jurisdiction—Inferior Tribunals—Must Appear on the Face of Proceedings—Presumptions.—In tribunals of special and limited jurisdiction the particular facts and circumstances upon which, their jurisdiction is based must appear upon the face of the proceedings. No presumptions are indulged in favor of their jurisdiction, and it will be assumed that jurisdiction was Wanting where the reeord does not show affirmatively that it has been acquired.</p> <p>2. Taxes and Taxation—Board of Equalization—Jurisdiction—Limited—Record—-Must Show Affirmatively All Facts Necessary to Give Jurisdiction—Presumptions.—The board of equalization, in acting upon the assessment-roll, is a body possessed of but limited and special powers. When its power and authority to do a particular thing are questioned, the record must exhibit affirmatively all the facts necessary to give it the authority to do the act complained of; otherwise, the presumption is against its jurisdiction.</p> <p>3. Same—Same—Same—Original—Appellate—Record ■— Failure to Show Facts Giving Jurisdiction—Increase of Assessment— Conditions Precedent—Bev. Stats. Ariz. 1887, Par. 2654, Construed.—The statute, supra, defines and limits the power and authority of the board of equalization, and provides that its original jurisdiction to add to the valuation of property must be exercised at the July sitting, and that action on a day named after a reasonable notice to the persons interested, is essential as a condition precedent to confer that jurisdiction. It further provides that its jurisdiction at the August sitting is purely appellate, and is dependent upon the appearance before them of the person to the assessed value of whose property there was an amount added in July, and the affidavit of such person that he had no knowledge of such increased valuation. The record of the board showed that the original action of the board in adding to the assessed valuation was taken on the twelfth day of July, on which day appellant’s superintendent was notified to be present on the nineteenth day of July, when the board would act in the matter; that said superintendent did not appear; that no action of the board was then taken, nor was there further action thereon until August 1st. The record is conflicting as to: whether the addition was made on July 12th or August'1st. Held, that an examination of the reeord as furnished in the return failed to show the jurisdictional facts which would render legal or binding the action of the board in raising the assessment either on the twelfth day of July or the first day of August.</p> <p>4. Certiorari—Supersedeas—Subsequent Action Void.—Inasmuch as a writ of certiorari takes effect as a supersedeas upon its being delivered to the officer or board to whom it is directed, rendering all subsequent proceedings before him or it coram non judice and void, any attempted action of a board of equalization to increase an assessment sought to be reviewed after a writ of certiorari was issued to said board, commanding it to desist from further proceedings in relation to increase of such assessment, was void.</p>

<p>1. Mines and Mining—Lesson and Lessee—Mechanic’s Lien—Interest Subject to—Biv. Stats. Ariz. 1887, Par. 2276, Cited—Gates v. Fredericks, 5 Ariz. 343, 52 Pac. 1118—Eaman v. Basheord & Burmister, 4 Ariz. 199, 37 Pac. 24, and Hadley Co. v. Cummings, ante, p. 258, 64 Pac. 443, Approved.—Under the statute, supra, providing that all miners, laborers, and others who may labor, and all persons who may iurnish material of any kind, designed or used in or upon any mine or mining claim, and to whom wages are due for such labor or materials, shall have a lien upon the same for such sums as are unpaid, a miner, employed under a contract with the lessee of a mining claim, cannot foreclose a mechanic’s lien upon the claim as against the owner, though' entitled to subject the lessee’s interest thereto.</p>