Pack v. Thompson

223 F. 635 | 9th Cir. | 1915

MORROW, Circuit Judge

(after stating the'facts as above). Section 2324 of the Revised Statutes of the United States provides, among other things, that:

“On each claim located after the tenth day of May, eighteen hundred and seventy-two, and until a patent has been issued therefor, not less than one hundred dollars’ worth of labor shall be performed or improvements made during each. year. * * * Upon the failure of any one of several co-owners to contribute his proportion of the expenditures required hereby, the co-owners who have performed the labor or made the improvements may, at the expiration of the year, give such delinquent co-owner personal notice in writing or notice by publication in the newspaper published nearest the claim, for at least once a week for ninety days, and if at the expiration of ninety days after such notice in writing or by publication such delinquent should fail or refuse to contribute his proportion of the expenditure required by this section, Ms interest in the claim shall become the property of his co-owners who have made the required expenditures.”

The notice served by Thomas W. Pack, for himself and his sucsessors in interest, informed his co-owner, Thompson, that he (Pack) had expended during the years 1911 and 1912 the sum of $5,600 for labor and improvements upon 175 mining claims designated in the notice. The expenditure required by the statute for 175 mining claims for one year was $17,500, and for two years $35,000. The expenditure of $5,600 upon the mining claims designated in the notice was not the expenditure required by the statute, and was therefore clearly not sufficient to entitle Pack or his successor in interest to a forfeiture to himself or to them of the interest of the delinquent, Thompson, in the claims mentioned in the notice, upon the failure of such delinquent to pay to Pack or his successor in interest his proportion of the sum of $5,600, namely, $700, for a one-eighth interest in the 175 claims. The only labor or improvement required by the statute which will entitle a co-owner doing the work or making the improvement to forfeiture from a delinquent co-owner of his interest is the expenditure of the full sum required by the statute, namely, not less than $100 for each claim. In order that the interest of a delinquent co-owner may be forfeited, it is essential that the entire work shall be performed by one or more of the co-owners claiming the forfeiture. Lindley on Mines, § 646, page 1622; The Golden and Cord Lode Mining Claims, 31 Land Dec. Dept. Int. 178, 181. The notice did not claim that the entire work required b3r- the statute had been performed for the years 1911 and 1912. On the contrary, it conclusively appears from the notice that only a small proportion of the work required had been performed, and if the amount stated in the notice was all the' work that had been performed on all of the claims, and it is so stated in the notice, they were then all subject to relocation, and no interest was saved by a partial compliance with the statute.

The notice being insufficient on its face to entitle the defendants to claim a forfeiture of the plaintiff’s interest in the mining claims mentioned therein, and this also appearing by direct and positive allegations of the complaint, the court below was right in issuing its temporary injunction suspending defendants’ forfeiture proceedings until the actual facts can be ascertained and the questions involved determined upon the merits.

The decree of the court below is affirmed.