35 Nev. 447 | Nev. | 1913
Lead Opinion
By the Court,
This is an action brought by the respondent to obtain a judgment declaring him to be the owner and to have possession of an undivided one-half interest in a certain mining claim named the Helen, situate in Hornsilver mining district, Esmeralda County. The court found the following facts substantially in accordance with the allegations of the complaint, and as a conclusion of law therefrom determined the plaintiff to be entitled to judgment as prayed for:
" (1) That at all times hereinafter mentioned and until midnight of the 31st of December, 1909, J. M. Russell, Howard Russell, and Elmer J. Chute were the owners of the Whirlwind No. 4 lode mining claim, situate in Hornsilver mining district, Esmeralda County, Nevada.
” (2) That at the time of the making of the contract hereinafter mentioned, plaintiff Clark and Mr. E. L. Stingley were the owners of the Silver King Fraction lode mining claim, situate in the above-mentioned district, county and state, and lying adjacent to and contiguous with said Whirlwind No. 4 lode mining claim.
" (3) That at the time of the making of said contract plaintiff had the right, by virtue of an agreement with said Elmer J. Chute, to enter upon said Whirlwind No. 4 lode mining claim in the place of said Chute and perform the assessment work thereon for the year 1909, and thereby acquire the interest of. said Chute in said claim.
" (4) That between the 23d and 29th days of December, 1909, inclusive, plaintiff and defendant Mitchell entered into a contract; not in writing, whereby defendant*452 Mitchell agreed to perform the assessment work upon the said Silver King Fraction for the year 1909, in consideration whereof plaintiff agreed to convey to him, said Mitchell, the undivided one-fourth of said claim; and whereby defendant Mitchell agreed to relocate said Whirlwind No. 4 in the joint names of plaintiff and said Mitchell, each to have one-half thereof, in consideration whereof plaintiff agreed to refrain from performing the assessment work for the year 1909 upon said Whirlwind No. 4, and permit the same to revert to the public domain so as to make the relocation thereof as aforesaid possible.
" (5) That the terms and conditions of said contract were fully kept and performed on plaintiff’s part, but defendant Mitchell, contrary to the terms of said contract on his part to be kept and performed, and with the fraudulent purpose of dispossessing the plaintiff of said ground, wilfully failed to perform the assessment work upon said Silver King Fraction for the year 1909, and because of such failure the same reverted to the public domain and was lost to plaintiff and said Mitchell in relocating said Whirlwind No. 4 as the Helen lode mining claim, as by the pleadings established, omitted to include plaintiff as one of the relocators thereof, and in violation of the faith and confidence reposed in him by plaintiff, and with the fraudulent purpose aforesaid, relocated said premises in the sole names of himself and defendants Shannon and Carion.
" (6) That the plaintiff wholly relied upon defendant Mitchell’s promise to perform said assessment work upon said Silver King Fraction lode mining claim and to relocate said Whirlwind No. 4 as aforesaid, and, because of his faith in and reliance upon said Mitchell to perform his part of said contract, refrained from performing said assessment work and making said relocation.
" (7) That the said Helen lode mining claim laps over, upon, and includes part of the territory comprising the said Silver King Fraction lode mining claim, and the area so overlapping said Silver King Fraction contains the principal discovery of said Helen lode joining claim, and*453 from it defendants have extracted large quantities of mineral-bearing rock and quartz of commercial value.
" (8) That defendants Shannon and Carion acquired their respective interests in said Helen lode mining claim only by virtue of the relocation made by the defendant Mitchell, as aforesaid in violation of the contract with and trust and confidence reposed in him by plaintiff Clark as above set forth. That said defendants did not purchase said interests for value or otherwise or acquire the same in good faith or without notice of plaintiff’s rights in the premises, but took the same with full notice of all of the foregoing facts.”
This case was argued and submitted to this court, together with Case No. 1987 — H. E. Clark and E. L. Stingley against the same defendants (35 Nev. 464, post), appellants herein. The two cases are so related that they will be considered together. The latter action was brought by Clark and Stingley to recover judgment for the possession of an undivided three-fourths interest of a certain described piece of ground alleged to be a part of the Silver King lode mining claim, included between the exterior boundaries of the said Helen lode mining claim involved in Case No. 1984, supra. In the latter case the findings and decision of the court were as follows:
"That said location of the Silver King Fraction lode mining claim was made for the purpose of claiming a certain piece of vacant ground lying between the Deyling claim, near the westerly end thereof, and the Lime Point No. 3 claim, near its easterly end line; also extending northerly between the end lines of the Deyling claim and the Lime Point No. 1 claim, to a point about 350 or 375 feet northerly from the southwest corner of the Deyling ■ claim and the Lime Point claim No. 1, to a point where said end lines intersect and cross each other. The plaintiffs also, by virtue of said location, claim the piece of ground described as adjoining the west end of what was known as the Whirlwind No. 4 lode mining claim, lying about 250 feet northerly from the northerly point of the*454 fractions above described. The location monument of the said Silver King Fraction was placed upon the vacant ground sought to be located, about 75 feet north of the southwest corners of the Deyling and Lime Point No. 1 claims, and the discovery work was done about 150 feet northerly from the location monument.
"That on the 23d day of December, 1909, the plaintiff H. E. Clark made an agreement with the defendant M. Mitchell to perform the annual labor upon the Silver King Fraction lode mining claim, for an undivided one-fourth interest in the same. In compliance with said contract, the defendant Mitchell did, or caused to be done, some work upon the ground claimed by the plaintiff as the Silver King Fraction. The evidence fails to show, however, that a sufficient amount of work was done by the defendant Mitchell to meet the requirements of the law relative to the annual labor upon mining claims.
"That the defendant A. A. Carion had knowledge of the agreement which had been made between the plaintiff Clark and the defendant Mitchell; but there is no evidence which, in my judgment, was sufficient to show that the defendant G. N. Shannon had any knowledge of the agreement made between the plaintiff, Clark, and the defendant Mitchell.
"That on the 1st day of January, 1910, the defendants Mitchell, Shannon, and Carion located the Helen lode mining claim, taking in the ground which had, prior to that time, been claimed as the Whirlwind No. 4 lode mining claim, and also including the ground first above described, and which was claimed by the plaintiff to be a part and portion of the Silver King Fraction mining claim.
"It is claimed by the plaintiffs that the defendants, in view of the agreement above mentioned, were occupying-a fiduciary relation to and with the plaintiffs, and that they could not occupy and claim any portion of. the ground claimed by the plaintiffs as the Silver King Fraction, to the exclusion of the plaintiffs, and to deprive them of their rights and interest in said ground as a portion of the Silver King Fraction mining claim.
*455 "As conclusions of law, I find that a fiduciary relation did exist between the plaintiffs and the defendants Mitchell and Carion, and that the plaintiffs should be entitled to recover an undivided three-fourths interest in any property which the defendant located, as against the defendants Mitchell and Carion, provided that any portion of the ground so located by them as the Helen claim shall be found to be a portion of the Silver King Fraction claim, lawfully claimed and held by the plaintiffs herein. The evidence relative to the amount of ground alleged to have been vacant at the westerly end line of the Whirlwind No. 4 is very conflicting, but, with the views entertained by the court as to the.law of this case, it will not be necessary to reconcile the conflicting evidence, nor to pass upon the amount of ground which was included in that fraction. From the facts above found, the conclusion of the court is that the plaintiffs acquired no rights to that vacant fraction of ground lying west of the Whirlwind No. 4 lode mining claim, by virtue of the location of the Silver King Fraction. This last-mentioned fraction was not contiguous to the fraction upon which the location was made and the discovery work performed, and was situated at least 250 feet away from the nearest point of the located fraction, and it was an attempt on the part of the plaintiffs to include in their location two several and distinct pieces of ground, separated from each other by a distance of at least 250 feet covered by other and prior located claims.
"It does not appear that any location work was done upon the premises in controversy. No location notice and no monuments were erected anywhere in the vicinity of this fraction to indicate that any claim whatever was made for that fraction. In fact, it appears from the evidence that all of the boundary monuments of the so-called Silver King Fraction lode were placed upon prior and existing mining claims and at a considerable distance from the fractions which were open to location, and were sought to be claimed as the Silver King Fraction. Mr. Lindley, in discussing this proposition, uses the following language: 'If the lode of the junior*456 locator on his course reaches or crosses the properly established surface boundaries of a prior location, the right to pursue the vein beyond that point cannot be asserted. The end line of the junior must either conform to the cross boundary of the senior, or he must, at the expense of abandoning a portion of the lode, so construct his end lines that no part of them shall be on territory previously appropriated.’ No case has been tried by me in which the same questions have been presented as those that are involved in this case, and no authorities have been cited upon the points involved, but it is unquestionably the law that no two separate mining claims can be held by one location. It would seem equally true and logical that no two separate fractions of ground could be held by one location.
"If my conclusions are’ correct in this respect it follows that the defendants in locating the Helen lode mining claim did not in any manner encroach upon the legal rights of the plaintiffs. The complaint of the plaintiffs should be dismissed, and the defendants have judgment for their costs herein expended, and it is ordered that judgment be entered accordingly.”
Case No. 1984 was tried before Judge Somers, while Case No. 1987 was tried by Judge Stevens.
On behalf of the defendants it is contended that the oral agreement made between Clark and Mitchell was void under the statute of frauds; that the Silver King Fraction, being in two pieces, which were divided by other mining locations, only the piece having the location point can be held, and that the other piece, in which is included the valuable ground in controversy on the Whirlwind No. 4, relocated as the Helen, is not a valid part of the Silver King Fraction.
In the case of Hunt v. Patchin, 35 Fed. 816, there were three owners as tenants in common of three mining claims, and by failure to do the annual work there was a forfeiture. The relocation by one of the owners was adjudged to be in trust for the others. In the course of the opinion, Judge Sawyer said: "I am entirely satisfied that these claims were relocated under the new names at the time for the benefit of all the original owners, or else they were located in bad faith by defendant, after giving his associates, by his conduct, the right to believe, and when they did believe, that the location was for the benefit of all. Under this state of facts, I am clearly of the opinion that a trust arises in favor of complainant under the operation of law. * * * It was his duty not to permit a forfeiture for the purpose of relocating and acquiring the whole for himself without their knowledge and consent. By conferring with them and arranging to forfeit, and relocate for the benefit of all, he misled them, and violated the confidence reposed in him, if he relocated clandestinely for the benefit of himself alone. By his act and this breach of faith he threw his associates off their guard and prevented them from taking other means to protect their interests. * * * In Lakin v. Mining Co., 11 Sawy. 238, 25 Fed. 337, a case similar, but not exactly like this, it was held that ' where one. party, wrongfully, obtains the legal title to. land, which in equity and good conscience belongs to another, whether
In the case of Royston v. Miller, 76 Fed. 50, involving the Kingston mines in Lander County, Judge Hawley held that a coowner who undertakes to do the work necessary to hold mining claims cannot acquire any interest in them as against his coowners because of the failure to do such work.
In Reagan v. McKibben, 11 S. D. 270, 76 N. W. 943, it was held that an agreement to locate a mining claim for the benefit of others is valid although not in writing.
In Book v. Justice Mining Co., 58 Fed. 108, the locating of claims at Virginia City by individuals in their own names and the doing of the annual assessment work thereon for a corporation was held to be for the benefit of the corporation.
In the case of Trice v. Comstock, before the Circuit Court of Appeals, 121 Fed. 622, 57 C. C. A. 648, 61 L. R. A. 176, it is said in the opinion: "For reasons of public policy, founded in a profound knowledge of human intellect and of the motives that inspire the actions of men, the law peremptorily forbids every one who, in a fiduciary relation, has acquired information concerning or interest in the business or property of his correlate, from using that knowledge or interest to prevent the latter from accomplishing the purpose of the relation. If one ignores or violates this prohibition, the law charges the interest or the property which he acquires in this way with a trust for the benefit of the other party to the relation, at the option of the latter, while it denies to the former all commission or compensation for his services. * * * And, within the prohibition of this rule of law, every relation in which the duty of fidelity to each other is imposed
In Trice v. Comstock, supra, the court said: "It is here contended that no trust arose because Trice and Beamer had no interest in or control over the lands. But no interest or control of the property to which the agency relates is essential to the raising of the trust. The fiduciary relation and a breach of the duty it imposes are sufficient in themselves. (Winn v. Dillon, 27 Mass. 494, 497; People v. Township Board, 11 Mich. 222, 225; Grumley v. Webb, 44 Mo. 444, 454, 10 Am. Dec. 304; Lockhart v. Rollins, 2 Idaho, 503, 511, 21 Pac. 413.) If one employs and pays an agent to investigate the title or the character of land for the purpose of purchasing it, and the agent uses the knowledge he acquires in this way to forestall his principal and obtain a title to the property for himself, it is no answer to the suit of the former to
In this case, of Clark alone against the defendants, the judgment will be affirmed.
A different order will be made in the other case.
Rehearing
On Petition for Rehearing
By the Court,
Under the cases considered in our decision in H. E. Clark and E. L. Stingley v. Mitchell, et al. (see Case No. 1987, page 464 of this volume, post), and under O’Neill v. Otero, 15 N. M. 707, 113 Pac. 614, and cases cited there and in the brief, we adhere to the conclusion that Clark is entitled to relief under the agreement of Mitchell to relocate the Whirlwind No. 4 and to put Clark in such relocation for an undivided half interest.
However, we notice more particularly one point raised in the petition for rehearing. It is said therein: "Now, it may be true that the act of Mitchell with Mr. Clark would be binding on Mitchell as to any interest that Mitchell might acquire in the property; but we are asserting with great earnestness that it is not law that the act of Mitchell would bind any interest of Shannon and Carion, because the contract made by Clark with Mitchell would be a •fraud and a breach of faith against Shannon and Carion, and it does not matter that Shannon and Carion may have known of such an agreement between Clark and Mitchell, because they had a right to presume that Mr. Mitchell would carry out his agreement with them, and he did carry out that agreement, and relocated the mining claim Whirlwind No. 4 according to his previous and prior agreement.”
There is evidence that Mitchell did agree with Carion to relocate the Whirlwind No. 4 for the benefit of Mitchell and Carion, and that Shannon was not aware that he was to be included in the relocation until after it had been made and his name added to the notice. Under these
As counsel contend with so much assurance, we state that under the circumstances shown equity will not allow a party to avoid responsibility for his agreement by giving away the property, or by taking it in his own name or in the name of others. If, in addition to making the agreement with Clark, and also an agreement with Carion to relocate each for one-half or the whole of the Whirlwind No. 4, Mitchell had also made an agreement to relocate Carion or others for one-half or the whole of the claim, so that different parties would be entitled under the different agreements to more than the whole interest in the property, we can see how equity might of necessity make some division of the property which would award each of the parties entitled a less proportion than that provided for in his agreement, but the largest proportion possible upon a division of the whole property.
The judgment of the district court awarding Clark an undivided one-half interest in the Helen location will stand, subject to the judgment in the other case, of H. E. Clark and E. L. Stingley against these defendants, or, with the same result, the judgment may be modified to cover all that part of the Helen claim excepting the ground which belonged to the Silver King Fraction at the end of the year 1909. The interest in the ground which so belonged to the Silver King Fraction must be
The petition for rehearing is denied.
Concurrence Opinion
I concur.
Concurrence Opinion
I concur.
