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(1 Ariz. 404)

FIELD et al. v. GREY et al.1
(Supreme Court of Arizona. April, 1881.)
NOTICE FOR NEW TRIAL-LOCATION OF MINING
CLAIM.

1. Under St. Ariz. 1879, p. 71, requiring the statement, on notice for new trial, to specify the errors on which the party will rely, and providing that, if no specifications are made, the statement shall be disregarded, a statement the correctness of which has been agreed to cannot be disregarded.

2. Under Rev. St. U. S. § 2320, providing that "no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located," one so locating a claim prior to the discovery of the lode can hold possession of the surface as against one possessing or claiming no better right.

Appeal from district court, Cochise county.

Morgan & Price, for appellants. Stanford, Earl & Smith, for respondents.

FRENCH, C. J. This action is ejectment to recover possession of certain mining ground The complaint is in the usual form for ejectment. The denials of the averments of the complaint contained in defendant's answer, except the denial as to damages, are defective. But plaintiffs having proceeded to trial on the answer without objection in these respects, we shall consider the answer as a denial of the plaintiff's allegations. But the defendants show no right, and do not even claim any right, to the premises in controversy or to the possession of the same in their answer, but simply traverse plaintiffs' right to the same. The plaintiffs had Judgment, and defendants moved for a new trial, which was denied, and the appeal is from the judgment and from the order denying a new trial.

The statutory provision as to new trials in this territory provides: "When the notice designates as the ground upon which the motion will be made the insufficiency of the evidence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient. When the notice designates as the ground of the motion errors in law occurring at the trial, and excepted to by the moving party, the statement shall specify the particular errors upon which the party will rely. If no specifications be made, the statement shall be disregarded." St. 1879, p. 71. Plaintiffs object to the assignments under the statute. But their objection cannot be justly sustained to all the assignments of error. Besides, plaintiffs have expressly agreed to the correctness of the statement on motion for new trial. The statement therefore cannot be entirely disregarded, under the provision of the statute: "If no specifications be made, the statement shall be disregarded."

The premises were located by plaintiffs' grantors as a mining claim on the 19th day of December, 1878. At that time the preraises were entirely vacant, open, unclaimed public land, without any adverse

This case, filed April, 1881, is now published by request, with others, in order that the Pacific Reporter may cover all cases in the Arizona Reports from volume 1, p. 1.

claim, occupancy, possession, or right whatever adverse to plaintiffs' grantors, and so continued till after said grantors, on the 1st day of July, 1879, conveyed the same by deed to plaintiffs herein, who then entered under said deed. The evidence is clear, complete, and entirely unquestioned on the foregoing points. There is clear prior possession decisively established, if the location by plaintiff's grantors had any validity. The act of May 10, 1872, (Rev. St. U. S. § 2320,) among other provisions, contains the following: "But no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located." This broad and sweeping provision is earnestly invoked by the appellants in this case as fatal to plaintiffs' claim in this action on the statement and record therein. It would be sufficient answer to this to say that, for the purpose of this appeal, there is a substantial conflict of testimony on this point,-testimony of Field and others on croppings, etc. Another and more decisive answer to defendants' position is that defendants are not in a position to invoke this provision of the statute against the plaintiffs in this action, for the reason that defendants claim no right to the premises whatever. But as the above provision of the statute is so decisive in its terms, a brief and summary discussion of the same may not be out of place here, though not demanded in the decision of the present case. It is well known that in many portions of the mineral regions of the United States blind veins or lodes exist, that is, veins or lodes entirely below the surface of the ground, and often a great distance below the surface, and that in many instances these blind veins or lodes are the only kind found. Where such a state of things exists, the miner must seek the vein or ledge without attempting a location of claim till the vein or ledge is discovered, or he must attempt a location of the surface at least before such discovery; and this brings us to the consideration of the question, what right, if any, does the miner acquire as to the surface, not ledge, by such location, before the discovery of the vein or ledge? If this exact question has been authoritatively passed upon or settled by judicial decision, my attention has not been called to such decision by counsel or otherwise, except as mentioned and discussed in this opinion. The doctrine of prior possession or actual occupancy, without legal claim, except so far as such possession per se confers it, has been of late fully recognized by the supreme court of the United States as to public lands not mineral.

The question whether public lands inclosed and occupied by parties not claiming them under the laws of the United States are subject to pre-emption or homestead entry under such laws of the United States has been settled in the negative. In the case of Atherton v. Fowler, 96 U. S. 513, and later in the cases of Hosmer v. Wallace, 97 U. S. 575, and Trenouth v. San Francisco, 100 U. S. 251, the supreme court of the United States held that no pre-emp tion right can be established by a settl

A prospector on the public mineral do.
main may protect himself in the possession
of his pedis possessionis while he is search-
ing for mineral." The instructions to
juries on this statute in the local federal
courts have been various, generally giving
the substance of the statute that no loca-
tion could be made prior to the discovery
of the vein or lode therein. In the case of
Mining Co. v. Evans, 2 McCrary, 39, 5 Fed.
Rep. 172, (October term, 1880,) Mr. Justice
HALLETT, in the same district of Colo-
rado, is reported as instructing the jury as
follows: "On the public domain of the
United States, a miner may hold the place
in which he may be working against all
others having no better right; but, when
he asserts title to a full claim of one thou-
sand five hundred feet in length, and three
hundred feet in width, he must prove a
lode extending throughout the claim.”
This is indefinite as to extent of ground
and in conflict with the doctrines of the
decision above quoted. If a party on the
public lands not mineral can, by bow and
spear, hold his possession to a tract of
such land, however large, against a party
seeking to enter under the pre-emption
or homestead laws of the United States,
shall not the miner hold the comparatively
small tract embraced in his mining claim,
while continuously and industriously seek-
ing the vein or lode believed to exist there-
in? I speak of the surface only, not the
vein or lode. I am of the opinion that he
can so hold the surface of the claim against
all parties having no better right, and eject
them therefrom, if any so intrude, and
such I understand to be the doctrine
of Mr. Justice MILLER'S decision above
quoted. Judgment affirmed.

ment and improvements on a tract of pub-eral by the defendants or either party.
lic land which was already in the posses-
sion of another. The state and territorial
courts have necessarily followed these de-
cisions, those of California in the cases of
Hosmer v. Duggan, 56 Cal. 257; Davis v.
Scott, Id. 165; and in the still later case of
McBrown v. Morris, 59 Cal. 64. In the case
of Railroad Co. v. Gould, 21 Cal. 254, the
same court sustained naked prior occu-
pancy against a congressional grant of
right of way, as to claim of damages. This
is the settled doctrine as to public lands
not mineral, and, by analogy, should be
recognized where applicable to rights upon
the mineral lands. A person making a
location of a mining claim fully in accord-
ance with law and usage acquires a right
of possession to the same equivalent to an
actual or possessio pedis possession. But
what right does he acquire by making
such location before the discovery of the
vein or ledge? Mr. Justice MILLER in
his circuit has encountered this question
more or less directly, and especially in the
state of Colorado, where these blind ledges
are understood to be of frequent occur-
rence. But his conclusions have not
reached us in an authoritative form. In
the case of Crossman v. Penderry, 2 Mc-
Crary, 139, 8 Fed. Rep. 693, the Orion had
been first located. The Pendery was lo-
cated subsequently, on the same ground,
and discovered mineral in place, before the
prior locators had made such discovery.
In this case, which was heard in the cir-
cuit court of the district of Colorado, the
defendants had judgment in their favor.
Mr. Justice MILLER, of the supreme court
of the United States, in his (the eighth) cir-
cuit, rendered the decision, in which he is
reported as saying: "This cause is sub-
mitted on an agreed state of facts, to the
effect that the ground in controversy is.
covered by the surface lines of the Orion
claim, located by the plaintiff, and also of
the Pendery claim, located by defendant;
that both locations are regular as to form;
that the Orion was first located and sur-
veyed; that the locators have steadily
prosecuted work in the development there-
of, and have discovered mineral in place;
that the discoverers of the Pendery, lo-
cated subsequently to the Orion, and while
the locators of the latter were in posses-
sion thereof, also prosecuted work, and
discovered mineral in place before the dis-
coverers of the Orion. The question sub-
mitted to the court is this: Can prospect-
ors on public mineral domain acquire any
right in which the law will protect them
prior to the discovery of mineral in rock
in place? If so, can the plaintiffs, being
prior locators, recover against defendants,
who first discovered mineral on the ground
in controversy? It is the opinion of the
court that, inasmuch as the plaintiff al-
lowed the defendant to enter upon their
claim, and within their boundaries, and
there sink a shaft, in which they discovered
mineral in rock in place before a discov-
ery by plaintiffs, and make location there-
of without protest, the defendants now
have the better right. But the plaintiffs
might have protected their actual posses-
sion of their entire claim by proper legal
proceedings prior to the discovery of min- |

PORTER and STILWELL, JJ., concur.

(1 Ariz. 426) TOMBSTONE MILL & MINING Co. v. WAY UP MINING CO.1

(Supreme Court of Arizona. Jan., 1883.) NEW TRIAL APPEAL-ADJOINING MINING CLAIMS -VEINS AND DIPS.

1. Though the trial judge retires from the bench pending a motion for a new trial in a case tried by the court, and his successor overrules the motion pro forma, refusing to hear it on the merits, the findings of fact will not be disturbed on appeal if there is substantial evidence to sustain them.

2. Rev. St. U. S. § 2322, provides that locators of mining claims shall have the right to possess and enjoy all veins, lodes, and ledges, the top or apex of which is inside of the surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from the perpendicular in their course downward as to extend outside of the vertical side lines of the surface location. Held, that the owner can follow his claim on its dip only when it dips substantially at right angles with the strike of the vein, and he cannot follow the vein outside of his lode, on the course or strike of the vein, in any case; if it crosses the side lines on its strike the side lines become the end lines and terminate the right to follow the vein in that direction.

3. The end line of the "Way Up" mining

1This case, filed January, 1883, is now published by request, with others, in order that the Pacific Reporter may cover all cases in the Arizona Reports from volume 1, p. 1.

1

claim abutted against the side line of the "Good
Enough," which was the older location. In the
Way Up, there was a fissure vein which passed
from the Way Up, entered the Good Enough,
The ore bodies in the Good
and crossed it.
Enough were connected with this fissure vein and
flowed from it, and constituted flat ore bodies
lying in strata of limestone some distance from
the fissure. Held, that the ore bodies in the Good
Enough did not form a separate vein, and its
owners could not follow into the Way Up, and
were not entitled to the ore at the intersection
under Rev. St. U. S. § 2336.

Appeal county.

from district court, Cochise

John Haynes and Thomas Mitchell, for appellant. Lewis & Dibble and J. D. Rouse, for respondent.

PINNEY, J. This case comes up on appeal from judgment and order overruling a motion for a new trial. The case was tried by the court without a jury, and the trial judge filed findings of fact and conclusions of law, and a judgment was entered in accordance therewith in favor of defendant. Plaintiff moved for a new trial, but, before the motion was disposed of, the trial judge retired from the bench, and another judge was appointed in his stead. When the motion for a new trial came up for hearing, it was overruled pro forma. The court declining to hear the motion on its merits, not having heard the evidence at the trial of the cause, appellant's counsel now insist this court should, under the circumstances, not be governed in its decision on this point by the general rule that an appellate court will not disturb the verdict of a jury or findings of fact by the trial court where there is a conflict of evidence. They insist that the case should be now heard on appeal, as if it were on motion for a new trial in the district court.

In the consid

eration of the case, we have borne in
mind the peculiar circumstances surround-
ing it. Still, it must also be borne in mind
that every presumption is in favor of
the correctness of the judgment, and that
trial court will
neither appellate nor
disturb the verdict of a jury, or the find-
ings of fact by the court, where there is
substantial evidence to sustain such ver-
dict or findings, unless errors of law have
occurred requiring a reversal. Covington
v. Becker, 5 Nev. 281; Kile v. Tubbs, 32
Cal. 332; Miller v. Balthasser, 78 Ill. 302.
One of the main reasons for upholding the
verdicts of juries, and the findings of fact
of a court, where there is no indication of
improper motives influencing them in
coming to a conclusion, and where no er-
rors of law occur, is that they have heard
the testimony, have had an opportunity
of observing the conduct and bias of the
witnesses, their intelligence, etc., and are
therefore better enabled to arrive at the
true facts of the case than an appellate
court possibly can be. Having in mind
the rule, upon an examination of the en-
tire record, if it shall be found that there is
no substantial evidence to sustain the
findings of fact, or if there be found a ma-
terial error in the conclusions of law of the
court below, it is the duty of this tribunal
to reverse or modify the judgment ap-
pealed from; otherwise, the judgment

must be affirmed. The questions, then,
for our consideration, are: (1) Should the
case be reversed on questions of fact, or
findings of the trial court? (2) Is there
error of law in his conclusion and judg-
ment?

The complaint alleges the incorporation
of plaintiff and defendant; that plaintiff
company was the owner and in posses-
sion of the Good Enough mining claim
and lode in Tombstone mining district,
Cochise county, Ariz., which is therein
described; that within said claim there
is a valuable vein, lode, lead, or ledge, and
mineral deposit of rock in place, bearing
silver and other valuable metals, having
its top or apex within the exterior
boundaries of said claim, and dipping in a
north-easterly direction at an angle of 20
to 24 degrees from the horizontal, pass-
Ing beyond the said line of the Good
Enough claim in that direction, and en-
tering the adjoining land; that on or
about March 1, 1881, defendant ousted
the plaintiff from that portion of its vein
or lode which had been opened and de-
veloped by defendant beyond the north-
east side line of the Good Enough claim,
and beneath the surface of the Way Up
mining claim, which at that point ad-
joins the Good Enough claim. Then fol-
lows allegations of value of ore and occu-
pation. The other causes of action are
substantially the same, with variations
as to value of ore mined, etc., followed by
a prayer for an injunction, and for re-
covery of said land and premises, and
The claim for damages
for damages.
was dismissed without prejudice, and the
question of right of possession alone tried.
The defendant's answer specifically de-
nied the material issuable facts stated in
the complaint, and for defense alleges that
the Way Up Company is the owner of,
and was in the possession of, and entitled
to the possession of, the Way Up mining
claim, and of all veins, mineral deposits.
etc., the apexes of which were embraced
in its exterior limits; alleges that the ore
body developed within the Way Up claim;
and prays that defendant may go hence,
and for costs. It is not a cross-bill, but
set up as matter of defense, and not as
a counter-claim, which seems necessary
Brannan v. Paty,
under this practice.

58 Cal. 330. An injunction was granted at
the commencement of the action, which
was dissolved on the rendition of the judg
ment. On the issue thus formed, the case
was tried in the court below; the judge
filed his findings of fact and conclusions
of law; and judgment was entered accord-
ingly. The findings are, in substance, that
plaintiff and defendant were each incor
porated, and the respective owners, and
in possession, of the Good Enough and
Way Up mining claims; that there is no
vein or ledge running through the Good
Enough claim parallel with its side lines,
but that the only vein, lode, etc., shown
by the evidence runs across the said Good
Enough claim, and crosses its side lines,
and enters the Way Up claim on its strike,
and the ore raised and taken out by de-
was from said vein.
fendant company
lode, etc., extending on its strike or course,
as aforesaid, across said Good Enough

claim in a north-easterly direction, beyond its side lines, and into defendant's Way Up claim; that plaintiff had not, within the boundaries of its said claim, any mineral ized lead, lode, belt, zone, etc., of rock, dipping beyond its side lines into the Way Up claim, as alleged and described by plaintiff; that all ore shown by the evidence to have been found within said Good Enough claim, and the extended side lines of the Way Up claim, came from, was connected with, and was a part of, said vein, lode, or ledge, which, upon its strike in a north-easterly direction, entered the Way Up claim; that there is no vein, ledge, lode, or mineralized deposit, having its apex within the exterior boundaries of plaintiff's claim, except that which crosses its side lines and enters the Way Up claim. The sixth and last finding is that there is no vein, lode, ledge, or mineralized deposit, having its apex within the exterior boundaries of plaintiff's claim, dipping beyond the side lines of plaintiff's said claim into the Way Up claim. And as conclusions of law the trial judge found that the defendant was the owner of the Way Up mining claim, with all its veins, etc., and was entitled to recover and work the same, and that plaintiff is entitled to take nothing by the action, and that the injunction and restraining order heretofore granted should be dissolved, and for costs. Upon these findings judgment was entered, which is, in substance, a repetition of the findings and conclusions of law.

The assignments of error on the part of appellant are full and elaborate. They cover every point in the findings, conclusions of law, and in the judgment. The argument is ingenious and exceptionally able. Under our view of the case, only one finding of fact was necessary, and that is embraced in the sixth finding. The material fact, at last, is, did plaintiff's claim have a vein, lead, lode, or mineral deposit, whose apex was located within the exterior boundaries of the Good Enough mining claim, and which dipped into the Way Up claim? This is the ultimate fact to be found, and the one upon which the judgment must stand or fall. The sixth finding is a complete answer. That plaintiff should take nothing by this action, and the injunction and restraining order granted should be dissolved, was all that was necessary, and disposes of the case. As shown above, the answer does not contain a cross-bill, and it follows that the only proper judgment that could be rendered is that plaintiff take nothing by its action; that the injunction be dissolved, and costs awarded to defendant. But plaintiff contends that the evidence is insufficient to sustain the findings of fact, and that the court erred in the conclusions of law, and that the judgment is unsupported by the findings; in other words, that the judgment is contrary to the law and the evidence. An examination of the evidence shows that the Good Enough claim was located in a north-westerly and south-easterly direction adjoining this claim. On its north-easterly side line lies the Way Up. The latter extends lengthwise in a north-easterly and south-westerly direction, so that the south-west end

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line of the Way Up abuts against the north-east side line of the Good Enough.

Plaintiff claims that the Good Enough is located along a vein or ledge of mineralbearing rock in place, which extends through it, substantially parallel with its side lines, and that this vein or ledge dips in a north-easterly direction, passing its side lines into the Way Up; that defendant sunk a shaft near the line dividing the two claims, encountering plaintiff's vein on its dip, and were extracting the ore therefrom. Defendant, on the other hand, insists that the Way Up claim is located along a fissure vein extending in a north-easterly and south-westerly direction, and substantially parallel with its side lines; that its shaft is sunk on this vein, and that the ore being taken out by it is from this vein; that this vein extends through the Good Enough claim in a direction substantially at right angles to the side line to the Good Enough; and that the ore bodies which the plaintiff claims to be on its vein, and which be has a right to follow on its dip into the Way Up, form part of the Way Up vein or lode. Section 2322 of the Revised Statutes of the United States gives the owner of a mining claim the right to follow his vein or lode on its dip only when such vein or lode dips-that is, departs from a perpendicular position-substantially at right angles with the strike of the vein or lode, and does not allow him to follow the vein outside of his claim on the course or strike of the vein in any case. If the vein crosses the side lines on its strike, such side lines become the end lines and terminate the owner's right to follow the vein in that direction. Mining Co. v. Tarbett, 98 U. S. 463. A large number of witnesses for defendant testify to existence of a fissure vein in the Way Up claim. They swear that they examined, saw, and traced it, and found ore in it; that it passes from the Way Up claim, enters into the Good Enough, and crosses it. The judge who tried the case believed that, and it is not for this court to say that his findings are incorrect. The rule is too well established on this point for us to disturb it now. But plaintiff's counsel contend that, conceding that the Way Up fissure vein exists as testified by defendant's witnesses, still the evidence establishes the existence of the Good Enough vein, lode, ledge, or deposit; that this Good Enough claim lode is parallel to its side lines, and dips into the Way Up; that it has an average width of some 60 feet; and that plaintiff has the right, under section 2336 of the United States Revised Statutes, to take all ore at the intersection of the two veins, the Good Enough being the older location. If, however, the sixth finding of fact is sustained by substantial evidence, (and we think it is,) then this point is not well taken. There is much evidence in the record which goes to show that the various ore bodies in the Good Enough claim, opposite the Way Up claim, are connected with the Way Up fissure vein, and flow from it, and, although constituting flat ore bodies lying in strata of limestone, and at considerable distance from the fissure, yet are at

tached to and form a part of the Way Up vein. Ore bodies thus formed off from and connected with a fissure vein do not form a separate vein, lode, ledge, or mineral deposit. This evidence sustains the sixth finding of fact. It notes the ultimate fact at issue, and it was not necessary to find the probative facts which establish this ultimate fact. Mining Co. v. Taylor, 100 U. S. 37.

The second conclusion of law, to the effect that plaintiff is entitled to take nothing by this action, and that the injunction and restraining order be dissolved, properly follows.

The point made by plaintiff's counsel, that the findings are insufficient in form, and are mere conclusions of law, we think not well taken. The true test of the sufficiency of the findings is this: would they answer if presented by a jury in the form of a special verdict? Tested by this rule, we think them sufficient to sustain the judgment. Miller v. Steen, 30 Cal. 402. From the fact, however, that defendant's answer does not contain a cross-bill entithing it to affirmative relief, the judgment will be modified to the extent that plaintiff take nothing by its action, and that defendant go hence without day, and recover of plaintiff all costs and disbursements in this behalf incurred. In other respects, the judgment and orders appealed from will be affirmed, and it is so ordered.

FRENCH, C. J. I concur in the foregoing decision of Mr. Justice PINNEY that the judgment, as modified, and the order appealed from, be affirmed.

(1 Ariz. 397)

OSBORN V. CLARK, Auditor.1 (Supreme Court of Arizona.

Jan. Term, 1881.) MANDAMUS-TO TERRITORIAL OFFICERS. Where a claim is presented to a territorial auditor, who acts on it, and allows and issues his warrant for a part thereof, mandamus will not issue commanding him to draw his warrant for the balance of the claim. PORTER, J., dissenting.

Appeal from district court, Maricopa county.

John Haynes and Baker, Alsap, Lemon & McCabe, for appellant. Fitch & Churchill, for respondent.

FRENCH, C. J. This is an application for a writ of mandamus commanding and enjoining the said auditor to draw his warrant on the territorial treasurer for the sum of $180, under an act of the legislature of Arizona. No facts are stated in applicant's petition, but an affidavit of the applicant is annexed to the petition, from which it appears that petitioner was an officer of the legislative council of the session of 1881, as assistant clerk of said council, and that his claim is for compensation for services in that capacity. It further appears from the affidavit that the auditor has acted on the claim of appli cant, which was $540, auditing and al

1This case, filed January, 1881, is now published by request, with others, in order that the Pacific Reporter may cover all cases in the Arizona Reports from volume 1, p. 1.

If

| lowing thereon the sum of $360, and has issued a warrant for the sum allowed, which has been accepted by petitioner. This action of the auditor is fatal to petitioner's application for mandamus. the auditor has erred in auditing petitioner's claim, such error cannot be reviewed by mandamus. If it could be reached by writ at all, it must be by certiorari, not mandamus. The writ of man

date lies to compel an inferior court, board, tribunal, or officer to act, but never to command how to act, unless the act be purely ministerial. If the act sought for be judicial or discretionary in its character, no court, by its writ of mandate, can command what this action shall be, much less can it command how and what the said action shall be after he or it has already fully acted upon the matter, no matter how erroneously. The writ of mandate is in no case a process for the review or correction of errors.

But it is clear that the auditor committed no error as against petitioner. The error of the auditor, if any, was in favor of petitioner, as fully appears by the direct, positive, and express provision of section 1855 of the United States Statutes, as follows: "Sec. 1855. No law of any territorial legislature shall be made or enforced by which the governor or secretary of a territory or the members or officers of any territorial legislature are paid any compensation other than that provided by the laws of the United States. Wherefore it has been ordered that petitioner's application for a writ of mandamus be denied, and his application be dismissed.

STILWELL, J., concurs. PORTER, J., dis(1 Ariz. 411)

sents.

In re RODDICK'S ESTATE.2 (Supreme Court of Arizona. Jan. Term, 1883.) APPEAL FROM INFERIOR COURTS.

Under the Arizona statutes providing for an appeal from the probate court to the district court with a review of the proceedings of the district court in the supreme court, an appeal does not lie from the probate court direct to the supreme court.

Ben Morgan, for appellant. Farley & Pomroy, for respondent.

FRENCH, C. J. The appeal in this case is from an order of the probate court of the county of Pima, wherein the claim of Guadalupe Roddick for family allowance was denied. The appeal should have been to the district court of the first district. No appeal lies from a probate court to the supreme court. All appeals from the probate court must be to the district court. The action of the district court on such appeal may be reviewed here. Appeal is the creation of the statute, and the whole matter of appeals is expressly provided for in the statutes of the territory. Appeal dismissed.

PORTER and SILENT, JJ.,

concur.

This case, filed January, 1883, is now published by request, with others, in order that the Pacific Reporter may cover all cases in the Arizona Reports from volume 1, p. 1.

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