Arizona weekly miner., 1874-02-13
Opinion of the Supreme Court
 in Q Yavapai County Mining


 mining c,lim The verdict which wls In favor Of the plaintiffs set aside by order of the court against the evidence, aud the appeal Is to dis. affirm that order. The statement Included m the transcript Oi the record, discloses the following conclusions oi 1act In the fall of ls1O andfn lSil, the Tiger Mining Company consisting of r.. J. CoOk, Washington French, A. E. smith, II. (. Curry and D. C. Moreland, was formed Tor the purpose Of prospecting and locating mining claims in the Bradshaw mountains, in tue county of YavapA. On the 10th day Of January, 1871, D. C. Moreland, assisted by c. A. Hammond, 10. clted l20O feet including the discovery location on the Tiger mine, and on behalf Of this company, ut the same time, Moreland at the instance ui French located POO feet north of and adjoining the location of lhe company, for Wm. A. Linn, one of the defendants, aud this is the claim con tested In the present case. Al the time or loca- tiou, tue boundaries were measured by stepping and a monument was erected ou the north eud snd the claim was called the north extension of the Tiger mine. Al the same time, notice was placed on said monument, claiming the samc and signed Wm. A. Linn. On the 21th of January, 1871, French caused description of this claiIo to be recorded in the office of the county recorder of Yayapai county; and on the 2d of February 1871, next following this record, description with the certificate of record upon 1t, was placed on tbe monument with the original notice.
 Tbe transcript Of the record of this cass shows that at the tine Of the location, it WIS not in. cluded within any organized mining district, and that the location and record of It were made in accordance with the custom and practice prevail ing In that vicinity, among miners at the lime 1t also show: that afterwards, on the 4th of Febru- ary 1871, mining district was orgaaIzed there, a system of rules adopted, and a recorder elected or appointed; 1t shows thst it was not at any time the custom Of that district to record with the district mining recorder locations made and recorded with the county recorder previous to tbs election or appointment of the mining re- corder. The transcript also shows that work Was done on the claim on behalf of Linn from about 0f Eafr Ina V.1atn tffzf an. try and custer, which was on the 20th of June, lS7l and that early February s, of that year, Thomas Maxwell was at work there for Linn. The transcript further shows that on the Huh of February, 1871, Mary E. Sawyer entered upon the claim in contest, saw where some work had been done, removed from the monument Linns mo- tlees and substituted one of her own that she worked on the claim one or two days, doing as much work as a woman could do, which one of tue plaintiffs witnesses thought was joke; and on the 18th of June, the same year, conveyed all her interest to the plaintiffs in this case also that be- fore the plaintiffs purchased the claim of Mary F.. Sawyer, they had examined Linn's description of it among the records of the county, and had vis- ited and examined the claim itself, where they saw that considerable work had been done upon it, which they understood had been done by those representing the Llun claim; that afterwards, about the 20th Of June, 1871, the plaintiffs put two men to work on the claim that the day af- ter, Stewart and Maxwell came upon the claim, and Stewart, claiming to be agent partner of Linn, forbade the plaintifs' men from working any longer on this claim; and that on June 9, 1871, Linn came upon the ground, eyicted the plaintiffs and has retained possession ever since also that in January and February, 1871, W. A. Linn, the defendant, resided in Nevada, and that he did not return to Arizona till ,he month of June Of the same year, just previously 10 his sl- legged eviction of the plaintiffs also that at the organization of the Tiger. mining district, the rules and regulations required that all claims To- cated therein should be recorded with the district in A.u five days work be done the same within six months, commencing within thirty daya after the location.
 No regular assignment of errors appears in the case, and the points of law presented for the dis affirmance of the order appealed from, appear only on the brief of appellants counsel, as fol lows:
 l. The verdict of the jury was In accordance with the Jaw and the evidence and the court erred in setting aside the verdict and granting a new trial. lt Is the province of the jury to weigh the evidence and the court will nos disturb the yer dict when the evidence is not conflicting. ?. The court erred in alloving Linn to give evidence to cOunteract his deed to French. g. A mining claim k an interest in land within the meaning ol the statutes of frauds. 4 One person cannot To- cate mining claim for another except in connec. ton with himself, without authority in writing from the person Tor whom he locates. 5. The location of mining claim Is not valid unless made In accordance with tbe laws of the Cuited States, the laws of this Territory, and the rule. and customs Of the mining district where the same Is situated. t. One having already located under the laws Of the United States, approved July, lS66, the amount of mining ground allowed to be located by such law, another location made by him in the name of another person with the intent Co have the after location inure to his ben eft, is void as made in fraud and evasion of said law of the United States. z. The court erred in charging the jury that the law constitutes the dis e0yerer Of mine the agent for whom he chances to act and makes his act their act regardless of the fact Whsfher they hav anu Eun ad cft or not. Such further reference will be made to the acts In thls case as may be found necessary to illustrate the foregoing points, in the progress Of their discussion.
 The first point taken, viz: The verdict of the jury was in accordance with the law and the eyi. denee and the court erred in setting aside the verdict aud granting new trial. It is the prov inee Of the jury To weigh the evidence and the court sill Rot disturb their verdict when the tes. Lnony Ia conflicting. The first of the legal prop ositions presented Is . statement of the afirma- tive branch of the issue and can only be answered by an examination of the whole case the second Sof these propositions is perhaps more frequently repeated than almost any other and, when taken in all Its generality, Is fTaaght with error. IL Is true only of that portion of every case which in tsryenes between the subrnission by the court oi all tue evideBco so the jury, and the completion of It's verdict. The evidence Is subjected to the eogniiion of parties, witnesses, counsel and court before goes 10 the jury at all Some power, be- side tbe jury, must decide the competency, relc Vaney aud unexeeptiouableness of every portion of the evidence before it can enter the jury box And on the rendition Of the verdict the party lit gant 10 whom IL Is adverse, has the indefeasable right 10 have it compared with the evidence by the court, as the final test of it's validity. The statement of the transcript of the present ease shows an obvious preponderanee Of the testi mony against the verdict, and this point must therefore be and Is oyerruled.
 The second point Is: That the court erred lu allowing Linn to contradict his deed. And thl' would certainly be grave error of law, had il any Foundation In the facts of the present case The evidence, however, which Linn was allowed 10 give, and which was excepted to at the time appears 10 be no contradiction of his deed. Tn, Ipcclhe portion Of the testimony which is al kged 10 contradict the deed, was D ot pointed out
 Indeed it was discussed rather as an abstrac proposition Of law, as which it Is certainly uu denlable, not however, without it's well establish ed limitations It does appear that Linn, ii Inc course Of hs examination, was asked, "fo what puTpoSe did you execute the deed in ques nonf and the answcr was objected tO by th,