42 Colo. 121 | Colo. | 1908
delivered the opinion of the court:
1. We do not think that in this state of facts the conclusion reached by the court as to the ownership, of the one-eighth interest derived by Patrick from Smullen is correct. - By the assignment of the one-half interest in the Smullen bond, Chase became the equitable owner of that interest, and was entitled to receive the legal title thereto in the event that Patrick acquired the legal title to the undivided one-fourth interest from Smullen through and in pursuance of the terms of the bond. In other words, Patrick, by his partial assignment of the bond to Chase, became trustee of the interest so assigned, and upon the conveyance of the legal title to him by
This conclusion, of course, is based upon the condition that Patrick acquired the title to the undivided one-fourth interest under and by virtue of the terms of the bond. That he did so acquire it, and that Smullen executed a deed on the 26th of November, 1881, in pursuance of, and to carry out, the obligation of his bond, which he recognized as in force at that time, are manifest from the consideration paid, and all the circumstances attending the transaction.
Assignments of error Nos. 2, 5 and 6 are, therefore, well taken.
2. Zobel, as owner of an undivided interest in the mine, under an agreement with A. B. Sullivan’ and The Julia L. Beal Estate, Loan & Investment Company, but without the consent and after the refusal of intervenors to join with him therein, operated the mine from the 1st of May, 1898, until October 31st, 1902, and leased parts of the property containing ore bodies to certain lessees. As to the character of the work done by him, and the amount expended therefor, and the value of the ore extracted by him, and the amounts received as royalties, the court finds as follows:
“14. That said Zobel, prior to the 1st day of September, A. D.' 1901, did considerable development work upon said property in the way of driving*128 drifts, tunnels and winzes for the purpose of exploiting and developing the same. # * *
“15. That subsequent to the 12th day of April, 1898, the said Zobel had expended upon said property for development work, as aforesaid, the sum of $4,969.50; that part of said expenditure was for necessary work to the actual mining of ore aforesaid ; that part of -said work was non-productive and done on a part of the property remote from where the ore sold was mined, but was legitimate development and prospecting work in a part of said property that has yielded no income; that said Zobel performed personal services, expended labor and time in the course of said work of .a reasonable value of two thousand, one hundred and eighty dollars and ninety cents- ($2,180.90).”
And further finds that Zobel received from the ore extracted by himself and in royalties the sum of $9,953.06, and finds, as a conclusion of law, that he, Zobel, is entitled to retain the proceeds of the ore taken from the mine to- the amount of $4,969.50 expended as aforesaid, and $2,180.90 for his personal services, and that the balance of $2,847.70 only should be credited and paid to the respective interests in the mine, the amount so credited to the intervenors being the sum of $355.97.
The intervenors contend that the conclusion of law announced by the court upon the- facts as found by it is erroneous, for two reasons:
(1) That a portion of the work, as the court expressly finds, for which such expenditure was made, was “non-productive and done on a part of the property remote from where the ore sold was mined”; that it was simply prospecting, that resulted in no improvement of the property or benefit to the intervenors, and was a character of work for which Zobel was entitled to no credit.
*129 (2) That it erroneously allows Zobel compensation for his personal services.
We think it is clear, from the finding of the court below, that a portion of the expenditure for which Zobel was allowed credit was made in doing work for which he was not entitled to contribution from these intervenors. As was said in Stickley v. Mulrooney, 36 Colo. 242, 244:
“It appears to be well settled that one co-owner, without the consent of the other co-owners, cannot demand from the co-owners, who have not joined with him or in some way given their consent to the development or prospecting in mining property, remuneration for expenses incurred in so prospecting or developing the common property.”
While the operating tenant may, in case he is called upon to account for profits, set off as against a non-operating tenant the cost of the necessary improvements, he must show that such improvements were necessary and added to and enhanced the value of the common property. A portion of the expenditure for which credit was allowed Zobel was, we have seen, not of this character. What portion it is impossible to determine from the findings of the court; it appearing therefrom that part of the expenditure was for work which resulted in the development of the ore body which was opened at the time intervenors acquired title, and in extracting such ore, which would be a legitimate off-set, and a part was for prospecting and developing other parts of the mine, for which he was entitled to no contribution from the intervenors.
It is also well settled that tenants in common are not entitled to compensation from each other for services rendered in the care and management of the common property in the absence of a special agreement or mutual understanding to that effect. — 1.7 Am.
It is manifest, therefore, that the court erred in allowing Zobel the full amount of his expenditures for work and development, and compensation for his personal services. For the foregoing reasons, the judgment is reversed, and the cause remanded. Reversed and remanded.
Chief Justice Steele and Mr. Justice Bailey concur.