236 F. 516 | 8th Cir. | 1916
The appellants challenge the accounting and final decree made by the court below pursuant to the decision of this court and its mandate in Broatch v. Boysen et al., 175 Fed. 702, 710, 99 C. C. A. 278. In April, 1899, Boysen agreed with the appellants and others that they would, at their joint expense, prospect for, and, if possible, obtain from the United States, a lease of a large tract of land in the Shoshone and Wind River Indian reservation in Wyo-ing available for coal and other minerals. Boysen in 1899 proceeded to acquire such a lease of 178,000 acres of land for 10 years. In March, 1905 (Act March 3, 1905, c. 1452, 33 Stat. 1016), Congress passed an act Which gave him, the lessee, a preferential right for 30 days after the government surveys of the reservation were completed to locate and enter for $10 an acre 640 acres of mineral or coal land in a square form in that reservation. lie then searched .out, located, and entered the tract of land he was entitled to take, and the patent therefor wa.s issued to him on May 19, 1907. In the year 1905 he organized the Asmus Boysen Mining Company, and after he had entered the land made a contract to convey it to that corporation. He expended large sums of money in prospecting for coal and for other minerals, in order that he might select, both for his lease and for his patent, land valuable for coal and for other minerals, and he expended much more in endeavors to develop mine? upon these lands. After he had entered and secured the patented land, the appellants brought this suit against Boysen and the Boysen Mining Company to charge the patented land with a trust in their favor, and this court directed the court below to render a decree, and it did so:
“That an accounting be had oí the amount expended by Boysen in acquiring the lease and the patented land and In the development thereof, and also of any amounts which he had received therefrom; that unless each of the complainants (appellants here) John T. Clarke and William J. Broatch pay to tlie defendant Asmus Boysen Mining Company, a corporation to whom the lands have been conveyed since the institution of this suit, the sum of two thousand dollars ($2,000), and in addition thereto the amount which one-sixteenth of said expenditures shall exceed the sum of $2,000, within 60 days after the accounting shall be closed and finally approved by the court, then the bill be dismissed as to them; that unless each of the complainants (appellants here) Robert C. Wertz and Charles J. Woodhurst pay to the defendant the Asmus P.oysen Mining Company the amount which one-sixteenth of said expenditures exceeds the sum of $2,000, then the bill be dismissed as to each of them; and that in case any of thorn make the payment within 60 days, then the Asmus Boysen Mining Company shall convey to each of said four complainants who make such payment one-sixteenth interest in the said real estate described in the patent.”
Pursuant to these directions the District Court took the accounting, found and adjudged that within 60 days from the date of its decree
Nor are the objections that the payment of these fees were not within the scope of the authority of the trustee under the old agreement of 1899, or that the services were rendered after the patented land was selected, fatal. It is conceded that neither this nor many other expenditures relating to this selection and development of the patented land were either contemplated by the parties, nor was the trustee in the old agreement of 1899 authorized by them to make or pay them. That is not the ground of their allowance hy the courts. They rest on the maxim that he who seeks equity must do equity, that Boysen used the lease which he had acquired under the contract of 1899 to procure the preferential right to, and finally to procure, the patented land, that he hired and paid his counsel to bring the injunction suit, paid for the patented land, drove tunnels and sunk a shaft to prospect and develop it, that the appellants now seek the decree of a court of equity for a share in this land, which he thus selected and endeavored to develop, and that it is just and equitable that the grant of their prayer for a share in this property should be. conditioned by the court, as it has been, by the requirement that they first pay to Mr. Boysen their proportionate share of the reasonable expenditures he has made in order to prospect, acquire, and develop the lease and the patented land. The counsel fees fall far within this maxim upon which their allowance rests, and the record proves that the services for which they were paid were rendered before the patented land «was acquired, for the purpose of selecting and obtaining it.
It is assigned as error that the amount required by the decree upon the accounting to be paid by each of the appellants is $2,000 more than it should be. Appellees confess this error, and the record discloses the fact that it must have arisen, not from any mistake in the accounting which resulted in the finding of a balance of credit to Boy-sen of $63,533.10, but in the division of that sum by 16, and in the cases of Clarke and Broatch in the addition of $2,000 to that quotient. There was no other error in the decree. That decree, therefore, must be so modified that the amount required to be paid by each of the appellants Broatch and Clarke shall become $3,972.06, and the amount to be paid by each of the appellants Wertz and Woodhurst shall become $1,972.06.
Eet the case be remanded to the court below, with directions to that court so to modify its decree, and, thus modified, that decree is affirmed.