70 P. 790 | Idaho | 1902
— This action was commenced by the respondents to recover in ejectment certain mining claims and damages. The defense set np in the answer is that defendants were in possession of said mining claims under a contract of purchase, which, upon inspection, appears to be a lease with an option to purchase. The purchase price mentioned in said contract is the sum of $6,000, and was to be paid under the terms of said contract, as expressly provided therein, as follows : “All the net earnings, after working expenses are paid for —and by 'net earnings’ is meant all the gold that is taken out of the said Gold Nugget and Sixteen to One placer claims, after the men who are employed to work it properly are paid for their services, and the tools and all necessary supplies are paid for out of the gold taken out of the above-mentioned claims, then the said parties of the first' part are to receive as their pay the remainder till the said six thousand dollars ($6,000) is all and fully paid, and when the said six thousand dollars ($6,000) is fully paid it is mutually agreed between the said parties of the first part and the said parties of the second part thereto that the above-mentioned parties of the second part, their heirs and assigns, shall have all- the gold taken out of said Sixteen to One and Gold Nugget placer mining claims, and have a full and complete title in and to said claims inasmuch as it is in the right and power of the parties of the first part to convey title to the said Gold Nugget and Sixteen to One placer mining claims. It is further agreed to by the parties hereto that the parties of the second part can at once go onto and enter into possession of said Gold Nugget and Sixteen to One placer mining claims, and put in sluice boxes and all necessary machinery and apparatus to open up and properly develop said Gold Nugget and Sixteen to One placer mining claims. It is further agreed that the parties of the first part have at all timely hours the privilege to enter into the diggings to prospect and pan, and be present at the time of cleaning up any and all gold, that may be found in the working of the said Gold Nugget and Sixteen to One placer mining claims till the terms of this agreement are fully complied with. It is
In our view of this ease, the appellant was rightfully in possession of said mining ground under the terms and conditions of said written agreement, and this action in ejectment would, therefore, fail. The verdict of the jury was evidently based upon the testimony tending to show the collateral oral agreement claimed by the plaintiffs (respondents here) to have been made at the time of the execution of said written contract. Upon no other hypothesis could said verdict be accounted for.
For the foregoing reasons the judgment must be reversed, and the cause remanded for further proceedings consistent with the views herein expressed; and it is so ordered. Costs awarded to appellant.