2 Alaska 408 | D. Alaska | 1905
This is an action to enforce the specific performance of the Cascaden-Bennett contract of November 30, 1902, for the staking of the placer mines in controversy. It becomes necessary to determine the character of the contract. Plaintiff contends that it is ah ordinary grubstake contract, by which he acquired a half interest in the mines upon their location by him and the cross-relocation by defendant Dunbar, while the defendants maintain that, as stated and testified to by plaintiff, it is an oral contract to acquire an interest in real property, and void under the statute of frauds.
A perfected mining claim is real property in Alaska. Section 181, Civ. Code; Carter’s Ann. Alaska Codes, p. 388; Forbes v. Gracey, 94 U. S. 762, 24 L. Ed. 313; Belk v. Meagher, 104
A grubstake contract is an agreement between two or more persons to thereafter locate mines upon the public domain by their joint aid, effort, labor, or expense, whereby each is to acquire, by virtue of the act of location, such an interest in the mine as is'agreed on in the contract. Berry v. Woodburn, 107 Cal. 504, 512, 40 Pac. 802, 804; Hartney v. Gosling, 10 Wyo. 346, 68 Pac. 1118, 1123, 98 Am. St. Rep. 1005; Meylette v. Brennan, 20 Colo. 242, 38 Pac. 75. The title accrues to each as an original locator, though the location be made in the name of one or more of the parties only. Lindley on Mines (2d Ed.) § 331; Book v. Justice Min. Co. (C. C.) 58 Fed. 106. Each party to the grubstake contract not named in the location notice becomes, nevertheless, an equitable owner and tenant in common with those named. Murley v. Ennis, 2 Colo. 300.
Is the contract sued upon in this case a grubstake contract ? The allegation in the complaint is that plaintiff, who was then preparing to and did start on a prospecting trip to locate mines for himself and at his own expense, agreed with Bennett to stake claims for him and his partners; also upon Bennett’s agreement to record such locations as were made for him and his partners, “and’give to the plaintiff a share and interest of one-half in all such locations so made by him for them.” In his testimony Cascaden states the contract substantially in the' words of his complaint, except that he adds “and together we would prospect and work the ground.” He went,out on the prospecting trip, and in addition to his own claims staked those for Bennett, Scott, and Dunbar, and immediately upon his return prepared the notices of location therefor and the deed from Bennett conveying to him a half interest in the claims staked' for Bennett, who signed the deed, and delivered it to Cascaden.
Plaintiff alleges in his complaint that, in consideration of his promise to stake for Bennett, Scott, and Dunbar, they “promised, agreed, and covenanted that they would forthwith after such staking fulfill the other requirements exacted by the rules and regulations governing the location of placer mining claims on vacant public lands, and more particularly record said locations, and give to the plaintiff a share and interest of one-half in all such locations so made by him for them.” To paraphrase it, the alleged oral agreement was that “after such staking” the defendants would record “and give to the plaintiff” an interest. The defendants did not agree to give until after their title vested by staking; it was an agreement that in consideration of Cascaden’s services in staking they would thereafter convey to him an interest. The allegation is that he was to
On Cascaden’s return to town “after such staking,” he prepared, and Bennett signed and delivered to him, the deed conveying. a half interest in the mines so staked for Bennett. The location notices prepared by Cascaden at the same time, and signed by Bennett, were not recorded, and the claims lapsed at the end of 90 days. Section 15 Pol. Code; Carter’s Ann. Codes, p. 138. In May Dunbar restaked the claims, and it is admitted that by virtue thereof Bennett became the equitable owner and a tenant in common in a one-third interest in all the mines that he had previously conveyed by his deed to Cascaden. On July 1st, while the title stood in that way, Cascaden presented his deed to Bennett, who acknowledged it before an officer authorized to take acknowledgment of deeds, and again delivered it to Cascaden, who thereupon had it recorded on that day. Bennett’s intention was to convey to Cascaden a full undivided one-half interest in the property when he first made the deed on December 20, 1902. When he acknowledged and redelivered it on July 1,1903, he had the like intention, but then owned only a' one-third interest. His deed conveyed all that interest to Cascaden, who thereupon became the owner thereof, as a tenant in common with Scott and Dunbar. .
It is, then, my opinion that, so far as it is based upon the orginal oral agreement, this suit must fail because the agree