121 P. 572 | Utah | 1912
The plaintiff, the administratrix of the estate of Don R. Coray, deceased, brought this action against the defendants Holbrook and Searle for an accounting and to recover whatever money and property might be found due her.
The substance of the complaint is that the deceased and the defendant Searle, in 1892, 1893, and 1894-, explored, investigated, and surveyed Provo> River and' canyon, selected reservoir sites, made maps, drawings, and plans for the purpose of establishing and locating reseovoir sites, and for developing and diverting water for irrigation and for power for the gen
It is further alleged:
“(5) That while so engaged in said acts of appropriation they' employed the defendant Holbrook as their trustee and agent in the consummation of said appropriation and in the formation of said plan, and to aid and assist them in making a practical use and disposition of the said properties and interests then owned by them and to be acquired in the further progress of said project; and it was then and there agreed between said Coray, Searle, and Holbrook that the said Hol-brook would secure a purchaser, or interest other parties with capital, who would take over the said interests and property of the said Searle and Coray then owned and to be further acquired in the development of said plan. That it was then agreed between the said Coray, Searle, and Holbrook that Holbrook would, in his own name, as trustee, and in trust for said Searle and Coray, locate the.reservoir sites pointed out to him and theretofore selected by said Searle and Coray, and make appropriations, as such trustee, of said waters and water rights for said purposes, and the said Holbrook then and there agreed to secure for said Searle and Ooray ten per cent of the capital stock of any corporation thereafter organized to take over said plan and properties, or any corporation that might be formed, based upon the proposition and scheme involved in the said appropriations, surveys, and other work of and acts of the said Searle and Coray in the premises; and it was further agreed that the said Holbrook should receive as his compensation one-third of whatever should be realized from said interests.”
It is then alleged that Holbrook, as trustee for Searle and Coray, located the reservoir sites and water rights or water power to generate electric energy for light and power at the places indicated to him by Searle and Coray, and “thereafter procured divers parties to become interested therein and a certain corporation to be formed, based upon said appropriations
Upon these allegations the plaintiff asked that Holbrook be required to account, and that she be given a “judgment for whatever amounts, both of money and property, may be found due her, and for an undivided one-third of all the moneys and property which the said Holbrook has received on account of said Don H. Coray, deceased,” and for general equitable relief.
It is alleged in the complaint that the deceased died on the 18th day of October, 1899, and that the plaintiff was appointed administratrix of his estate in February, 1905, and that no administration of the estate had theretofore been had.
The defendant Searle filed an answer, admitting all the allegations of the complaint, and filed a counterclaim against Holbrook, in which the same allegations are made as are contained in the complaint. The defendant Searle, in effect, is a plaintiff as against Holbrook, and seeks the same relief sought by the plaintiff. They may therefore both be treated as plaintiffs.
Holbrook filed an answer to the complaint and counterclaim, admitting the demand for an accounting and his refusal to account, and denying all other allegations of the counterclaim and of the complaint, except the death of the deceased' and the appointment of the plaintiff as administra-trix of his estate. He also pleaded the statute of frauds, alleging that the contract or agreement set forth-in the complaint and counterclaim was not in writing nor evidenced by any memorandum, and that the alleged trust or relation was
The case was tried to the court, who found the issues in favor of the defendant.
The court found that Searle and Coray, in 1892, 1893, and 1894, made preliminary surveys of the canyon “at a cost of not exceeding $1000, including rough maps and sketches of said surveys, looking to the establishment of reservoir sites and the development of water power”; that in the year 1894 they had a conversation with Holbrook “in relation to the disposition of any rights that they might have acquired in said canyon and river; but no agreement was entered into concerning the same.” The court further found that Holbrook made no location or appropriation of reservoir sites, or water rights, as trustee for Searle and Coray; that he procured no one to become interested, or any corporation to be formed, based upon any appropriations or properties of Searle and Coray; that he received no property from them and held none in trust for them, nor transferred, nor conveyed, any to the Telluride Power Company, or to any one; and that he received nothing from the Telluride Power Company, or any one, “on account of any property in which they, or either of them, had any interest.” No findings were made in respect of the special pleas of the statute of frauds and of limitations; and, if the findings which were made by the court are correct, no findings on such pleas were necessary.
A judgment was entered in favor of the defendant, dismissing the complaint and counterclaim on the merits, from which both plaintiffs have prosecuted this appeal. They assail the findings.
The evidence shows substantially the following facts:
Searle and the deceased, prior to 1894, made explorations and a survey of the canyon, and in 1892 posted a notice along the river at a point called “Hanging Hock,” to obtain and
In 1905, Holbrook, for bis services, received from Nunn 5000 shares of the capital stock of the Telluride Power Company and 5000 shares of the capital stock of the Sam Magill Consolidated Gold, Mining & -Power Company, a corporation in which Nunn and bis associates were also interested. The stock was a reissue of stock issued to Holbrook in 1897. The evidence is in conflict as to whether the maps and drawings of Searle and the deceased were delivered and turned over to Holbrook. Searle testified that they were delivered to Hol-brook, or to bis representatives. Holbrook „ denied it. In 1896 or 1897, litigation was pending between the Rio Grande Western Railway Company and the Telluride Power Company in respect of conflicting rights in the canyon. Nunn and bis associates then, through their engineer, obtained from Searle the field notes of the survey of Searle and the deceased, which, as testified to by Searle, were used on the trial of that action. He testified that their maps and drawings were also used for that purpose. Nunn testified that be received the field notes from Searle, and that be received the maps, as be thought, from Holbrook, but denied that they were used at the trial, or that they were obtained for such purpose. Nunn testified that the field notes were received by him in respect of an option taken by him on some reservoir sites up the stream, in which Searle and the deceased claimed some interest, but which were wholly separate and distinct from the project and enterprise which culminated in the construction and operation of the power plant. Searle testified that the field notes were delivered to Nunn upon an express agreement that Nunn was to pay him the sum of $2500 for them!, but that be received from Nunn only $250. He testified that Holbrook bad an undivided one-third interest in them, and that be offered to divide with Holbrook the money received by him; but Holbrook told him to keep it, and stated that “there was a great deal more coming in the final settlement.” Searle thereupon kept $125 and paid $125 to Coray. Nunn denied that he bad agreed to pay Searle that
The Telluride Power Company was incorporated with a capital stock of 2,000,000 shares of a par value of one dollar each, and the Sam Magill, etc., Mining Company of 1,500,000 shares of a par value of one dollar each. There is no evidence to show the value of any of theses shares, nor the value, character, or extent of the property or plant owned or operated by either of these companies, nor the business conducted by them, except as may be inferred from their corporate names.
Upon substantially these facts, the plaintiffs assert that a trust relation existed between Searle, Co-ray, and Holbrook, and that Holbrook ought to be made to account. The court disposed of the case by finding that there was no agreement between them, and that Holbrook did not do or receive anything in pursuance of any agreement or understanding between them, and did nothing and received nothing
These are alleged in paragraph five of the complaint. In substance, they are that Holbrook agreed to “secure a purchaser, or interest others with capital, who would take over the said interest and property” of Searle and the deceased “then owned” and to be acquired by them; to “locate in his own name, as trustee for Searle and the deceased,
The only evidence tending to support the other portions of the alleged agreement is the testimony of Searle and Moore, witnesses for the plaintiffs, and that of Holbrook, a witness in his own behalf. Searle testified that in the conversation with Holbrook in the summer or early fall of 1904 Holbrook “stated that he belived that he could find parties to carry out and make the developments in Provo Canyon of the interests that Mr. Coray and I held there. Mr. Holbrook had been told all our plans in connection with that development. I told Mr. Holbrook to represent me in the disposal of the rights we then held in Provo Canyon. I said, ‘You shall represent me entirely.’ Coray and I were together, and the conversation was directed to the entire interests, and I said, ‘And any arrangements you may make which you deem just and equitable I will accede to.’ Mr. Coray made the statement to Mr. Holbrook that he should represent him entirely in the disposal of his interests there and in the water power and irrigation. The value of the water rights was discussed', and it was conceded and expressed by each of us that a one-tenth interest in the developed plant, irrigation or power, would be a just and equitable recognition of the rights represented in the location and plans as then in existence. Mr. Holbrook stated that he believed a oner-third interest of our rights there should accrue to him in the enlistment of capital to develop it, and I stated to him I was satisfied with that, and Mr. Coray stated the same, and Mr. Holbrook afterwards stated that was the
Searle further testified tbat in another conversation bad with Holbrook in 1904 be “asked Holbrook whether be bad bad' a settlement with Mr. Nunn. He said, ‘I thought there was some kind of a settlement a long time age.’ I said, ‘There was never any settlement of the interests you represented, or accounted for by you.’ He said, ‘Wasn’t there a payment made by Mr. Nunn on his purchase of Coray and Searle of certain notes?’ I said: ‘But you, as trustee for Coray and Searle, interested Mr. Nunn and capital here, and you made certain locations up there, and there has never been any settlement of that.’ He said, ‘What was that payment ?’ I said, Mr. Nunn agreed to pay $2500 for the notes representing the early surveys of Coray and Searle just prior to his suit with the Bio Grande. $250 was paid under that agreement, $125 of which came to me. I wanted to tender you one-third of the $125; but you declined, stating that there would be a great deal of money coming at the final settlement; that you did not need this now, and I. retained the entire $125. As trustee for Ooray and Searle, you’ made certain water locations and have carried on the negotiations with Mr. Nunn.’ He said, ‘Yes.’ I said, ‘Now, what I want to know is, has there been any settlement in connection with that?’ He said: ‘I haven’t my notes with me; my books have been burned up, and I thought that was finished. I must look that matter up.’ Mr. Holbrook at that time asked me what was the agreement between the parties, referring to Coray, Holbrook, and Searle. I answered that we should receive a one-tenth interest in the developed plant. He said: ‘Why, that cannot be true. Look at the money they have spent here — the immense amount of expenditures.’ I said: ‘That is true; but at the time this agreement was made Coray and Searle had a good deal more money actually expended there than any one else; and it was agreed between us that one-tenth would represent an equitable payment of the rights then held.’ Mr. Holbrook distinctly assented that,
Moore, Searle’s brother-in-law, testified that lie was “present at this conversation, and that Searle said to Holbrook, ‘You remember you were acting as trustee for Mr. Coray and I, and that we were to share one-third each,’ and Mr. Holbrook said that was his impression.” On cross-examination, he testified: “I didn’t hear Searle say that a one-tenth interest had been definitely agreed upon.”
Holbrook denied this conversation, and testified that in 1894 Searle and Corey spoke to him about an irrigation proposition which they had in the Canyon, and “I remember that they stated that if I could help' them that I could have an interest with them; and I don’t remember whether at this time, or if it was subsequently, that it was stated that I could have a third interest; or, in other words, there being three of us interested, each of us would have a third. I remember distinctly stating at that time that anything I could do for them I would be glad to-, or for any one else that had anything that would tend to develop the country.”
We think this testimony does not support the essential features of the alleged agreement. We have already observed that there is no evidence to support the allegation that Holbrook had agreed to locate the reservoir sites pointed out to him and theretofore selected by Searle and the deceased, or to make appropriations of water and water rights in trust for Searle and the deceased, or otherwise. And we are also of the opinion that the evidence referred to does not support-the- allegation that Holbrook “agreed to- secure for said Searle and Coray ten per cent of the capital stock of any corporation thereafter organized to take over said plant and property, o'* any corporation that might be formed, based upon the proposition and scheme involved in the said appropriations, surveys, and other work of and acts of the said Searle and Oo-ray in the premises.” The nearest of any evidence bearing on that is the testimony of Searle, wherein he testified that ‘it was conceded and expressed by each of us that a one-tenth interest in the developed plant, irrigation or power, would be a just
Furthermore, a large portion of the complaint proceeds or is based on the theory that Searle and Coray had acquired and “owned and held rights” with respect to the selection of a reservoir site or sites and an appropriation and diversion of waters of the river for irrigation and power purposes; that their “property” or “interests” or “rights so owned and held” by them were either transferred to Holbrook, to be by him turned over to others or a corporation formed by them, or were in some other manner to be taken over by such others or a corporation, for which Searle, Coray, and Holbrook were to receive in equal proportions one-tenth of the capital stock of such corporation; and that Holbrook transferred “said property and interests and rights” to the Telluride Power Company, and received therefor “large sums of money and a large amount of stocks and property,” amounting to “at least :$20Q,000.” In support of the allegations of such transfer, or making or taking over of such rights, interest, or property, or of any agreement to do so, Searle, the witness whose testi
Again, what were the “rights, interest, and property” acquired, owned, and held by Searle and the deceased “in Provo Canyon,” and which they authorized Holbrook “to dispose” for them ? Their rights in and to reservoir sites
The ease does not fall within the principle stated in the cited case of Stewart v. Douglass, 148 Cal. 511, 83 Pac. 699, that, “where one who has, by his own labor and at his own expense, discovered a mine, bnt has not made a location thereof under the mining laws, afterwards discloses to another the location of such mine, in consideration of and in reliance upon an agreement or understanding between them to the effect that the mine, when located, shall be the joint property of both, and where, in pursuance of such understanding, the further agreement is then made that the latter will locate the mine in their joint names, or for the benefit of both, so that each shall appear to be a half owner thereof, the subsequent location of such mine by the latter in the name of himself alone, without the consent of the discoverer, will raise a resulting trust in favor of the discoverer, with respect to the half interest which was to belong to him under the agreement;” nor within the principle stated' by the courts and text-writers that, where one furnishes money or supplies to another to prospect and discover minerals, or where two gc together upon the public domain to search and explore for mines, with an agreement that such discoveries and location of claims shall be for the joint benefit of both, and a discovery and location is made in the name of one, both, either on the doctrine of a resulting trust, or that of agency— the acts done being the joint adventure of both — are entitled to a joint and equal interest in and to the property; for, as heretofore observed, there is no evidence to support the allegations of the complaint that Holbrook agreed to make a location or au appropriation of the waters for the use and benefit of Searle and the deceased or otherwise, and the greater weight of the evidence shows that he made the location and the appropriation, not for the use and benefit of Searle and the deceased, but for Nunn and his associates. Nor does the case fall within the principle announced in the cited case of Beckwith, v. Sheldon, 154 Cal. 393, 91 Pac. 867; for there the-plaintiff had in fact made appropriations of water, acquired
The plaintiffs, therefore, are in this situation: They are not entitled to prevail on the theory that they had made an appropriation of unappropriated waters of the river, or that they initiated or acquired any such rights, and
We think the conclusion reached by the trial court and the judgment entered by- him are right. The judgment of the could below is therefore affirmed, with costs.