Weekly journal-miner., 1912-11-06

 point within the Fort Whipplc Mil. tary Reservation. to a storage and distributing reservoir on Willow Creek and in conflict to that ex tent. General Land Office letter "F' of July 2S, 1912. directed this office to order hearing with view of bona iidcs of the respective appli- cants.
 Pursuant to the said instructions, hearing was set for September 70. 1912. before ] M w Moore. No ,ary Public, Prescott, Arizona. final hearing before this office October IS. 1912, at which time and place the Arizona Land & Irrigation Com pany apepared by it's representatives and by counsel and submitted tesu- mony It will be noted by the en- closed letter signed by Notary Public Moore. that while Duke appeared in his own behalf, offered evidence and cross examined contestant's witness cs. he refused ,o sign his testimony or a stipulation and would not per mt his witnesses to sign their tcsti- mony. saying tha, he proposed to make his showing" before the land office at Phoenix.
 October 5. 1912. contestee Duke 1. fled an affidavit and motion for q | continuance of final hearing to No- i vcmbcr 1. 1912. which was denied i by this office on October /. l9l2. on the ground that no sufficient req son therefor was shown to exist. Oc i tober l4. 1912. conicstec Duke filed < an appeal from our letter of October l7. 1912. alleging that he had thereby q been deprived of his rights to be e heard We have chosen to disregard this appeal as having no merit en- l titling it to consideration.
 fl The record in the case which with v the exhibits and briefs filed. k very n voluminous. discloscs the following n facts:
 [. George A. Thayer, a mining and ,- civil engineer began his ,invcs,iga- y tions. which resulted in the filing
 of the right of way application oi ?. the Arizona Land & Irrigation Com Il pany, in November, 1910. It doc. ,- not appear that he definitely deter
 mined upon the filing of the applica r. ton in its present location until af c ter an interview with one Johr D. Bianconi at the latter's ranch abou T. December 22. 1910. when Biancon | sugge sted the feasibility of the pro ,f feet as later applied for and mad, it no mention of the fact that he hac e any interest in or claimed any watel IT rights adverse to those necessar, ll to the company's project. Abou
 January ,. 1911. Thayer purchased n the Wynkoop ranch. consisting Q | sal. l.. al flowed by the construction of th' d proposed dam. for S2O.OoO. There
 after, Thayer made journey t' rt Omaha. Nebraska. and purchased q le the Santa Fe Railroad its lands. to ,s gethcr with numerous script lo i cations. which would be susceptible r. to irrigation under the proposed pro r. ject The water locations. now tn in property of the Arizona Land & Ir D. rigation Company. were made No n- vember %. 1910. and January {. 1911 Id on the ground at the point of diver oi sion and thereafter duly recorded. ,c On October H. 1911. Thayer con veyed his interest in the property - heteinbefore mentioned. to the Ari
 zona Land & Irrigation Company
 which company has now expended
 for lands, surveys and other prop
 erty, nearly $lD,0O0 in the furth
 crenoe of their project It also ap pears that their right of way appli
 cation was filed in this office as 500
 as their extensive invc cstigations an
 surveys were completed
 John Duke recorded water loca
 tions for himself and John Biancon
 covering the flood and winter wate
 of certain creeks therein mentione,
 on December 27. 1910, the body c
 the notices stating that such notice
 were posted on the land October 1910. However, numerous distinteI
 cs,ed witnesses for the contestan testify that they were on or near th point of the alleged posting betwee
 October 1. 1910. and December 2. 1910. without having seen any notic or monument In fact notice wa
 first discovered by one of the vii
 ncsses during the spring of i9l tSec protestant's exhibit No, 9.
 was claimed by Duke that his fir notices were torn down and destro,
 cd, but in view of the positive ev
 dence by the protestant and the fa' that inc notice SO recorded. Is idei
 tical with the notice and photo
 graphed. admittedly not. the origina . we conclude that the notice foun
 was the first and only one poste = which posting was not done until Il spring of l9ll and ineffective as . valid water location under the law o Arizona (Sec Paragraph Al7
 K. $. Arizona, lo0l)
 It is also shown that the only c,
 penditurcs made by Duke as T
 sul, of his application for said rigl of way was in making survey of Il
 proposed reservoir which survey vi
 begun in the field on Juno p. 1911. II Taking all the facts into conside V ation we are of the. opinion th .. Dukes duplication akooesaid wi E. made because of ,he Pro9p.ed bull