92 P. 572 | Idaho | 1907
In this case the trial court sustained a demurrer to the complaint, and on plaintiff’s refusal to amend entered judgment of dismissal against him. This appeal is from the judgment. The only question to be determined on this appeal is whether or not under the provisions of sections 3300 to 3309, Revised Statutes, all the co-
This view seems to have been at least indicated by the courts in several cases. Perhaps the most pronounced expression from any court on this identical subject is that to be found in First Nat. Bank of Hailey v. G. V. B. Min. Co., 89 Fed. 449, wherein Federal Judge Beatty of the district of Idaho, in considering these statutory provisions, said: “This statute determines that such partnership exists when the owners of a mining property ‘ actually engage in working the same,’ and that no ‘express agreement’ is necessary, but that the relation exists when the ‘ownership’ and ‘working’ of the mine by the parties exist. This language seems to indicate that a mining partnership exists only between those owners who actually engage in the working, or by some consent or understanding with each other, agree to it. It seems clear from the statute that, if two or three joint owners work without the consent of the third, they cannot thereby make him, or his interest in the mine, liable for the debts they incur, nor do they deprive him of his share of any resulting profits.”
In Anaconda Copper Min. Co. v. Butte & B. Min. Co., 17 Mont. 519, 43 Pac. 924, the supreme court of Montana was considering the provisions of the Montana code, which are identical with our sections 3300 to 3309, inclusive, and said: “A mining partnership is formed by reason of the existence of certain facts described in the statute. Those facts are: (1) That two or more persons shall own or acquire a mining claim for the purpose of working it, and extracting the minerals therefrom (Civ. Code, sec. 3360); that is to say, the relation arises from the ownership of the shares or interests in the mine. This is the first fact as a foundation for a mining
Lindley on Mines, volume 2, section 803, suggests a similar view, and Snyder on Mines, volume 2, at section 1517, says: “So it would seem that mere joint ownership of mining claims does not constitute a mining partnership; nor will the performance of mere annual labor, made necessary by law, create the relationship; they must actually engage in the development and operation of the mine in the ordinary course of mining.”
The mere assertion, however, of this turgid and splenetic author would not be very convincing or persuasive with us, in view of the closing sentence of his section 1433, and noting his apparent inability to grasp the point at issue in Hawkins v. Spokane Hydraulic Min. Co., supra, and the admitted facts as to the partnership on which the case rested, but in section 1517 he seems to have arrived at a correct conclusion. (See, also, Prince v. Lamb, 128 Cal. 120, 60 Pac. 689; Nolan v. Lovelock, 1 Mont. 224; Charles v. Eshleman, 5 Colo. 107.)
We conclude that under the statutes of this state defining a mining partnership and prescribing its powers and duties, such a partnership can only exist among those co-owners who “actually engage in working the mine,” and that such co-owners as do not so engage in the business are not amenable to the law of mining partnership, but must be dealt with according to the principles of law governing them as co-tenants. The demurrer to the complaint was properly sustained, and the judgment must therefore be affirmed.
Judgment affirmed and costs awarded to respondents.