Yarwood v. Johnson

29 Wash. 643 | Wash. | 1902

Tlie opinion of the court was delivered by

White, J.

The complaint in this action, in substance, alleges a discovery of a vein, lead, ledge, or lode of quartz and other rock in place, hearing gold, silver, lead, copper, and other valuable mineral deposit, on government land, and tlie location of the “Tenderfoot” claim thereon on March 13, 1896, by Geo. A. McDonald and Peter Simons, and that on March 2, 1897, Simons conveyed a one-sixth interest to one Janies Davis, and thereafter, in 1897, Davis conveyed said one-sixth interest to’ plaintiff; that by mesne conveyances through the original locators and J. P. 0’-Parrell, one of the appellants, IT. P. Johnson, became the owner of a one-sixth interest therein, January 29, 1898; that, although this one-sixth interest was conveyed to appellant H. P. Johnson, one-half of said one-sixth interest was conveyed to’ him in trust for the appellant William Johnson, and that ever since said deed of January 29, 1898, the appellants, and each of than, owned therein as tenants in common, each owning an undivided one-twelfth; that during the years 1896 and 1897 $100 worth of work was done each year upon the claim; that for more than four years last past, and also’ during all the times respondent and appellants were tenants in common in said property, the appellant IT. P. Johnson acted as the agent for respondent, for hire, in the management of said property, and in performing respondent’s pro raía part of the assessment work required by law to be performed thereon, and that in the year 1898, in pursuance of said general agency, appellant H. P. Johnson, at respondent’s special instance and request, undertook, promised, and agreed to perform plaintiff’s pro rata share of the assessment work thereon, for which respondent paid him $20; that respondent has been informed and verily believes that over $100 worth of assessment work was performed upon said claim during the year 1898 by the owners thereof, but that, if it was not so performed, respondent alleges that it was through the fault, fraud, and negligence of the appellants J ohnson, and each of them; that by the conduct of appellant H. P. Johnson in assuming, undertaking, and agreeing to act as agent or trustee for respondent with, respect to respondent’s undivided interest in the property, and relying thereon, respondent was prevented from protecting his said interest and the interest of his. other co-tenants in the property by his own personal attention and work, and the respondent alleges that the appellants, and each of them, are estopped from asserting any interest in the property adverse to respondent; that while appellants and respondent were still co-tenants, and. while H. P. Johnson was still agent for respondent, on January 1, 1899, II. P. Johnson entered upon the property, posted a notice; and staked the ground, — in other words relocated or attempted to relocate the ground, in the name of William Johnson, under the name of the “Log Oabin” claim, and recorded it, etc., — and that appellant William Johnson had full knowledge of all the facts, and that, although said attempted relocation was made iu the name of William Johnson, it was in fact made in William Johnson’s name as trustee for the use and benefit of respondent and the appellants, and each of them, as their interests may appear, and that whatever interest William Johnson acquired under the relocation inures to the benefit of respondent and appellants; that appellants, and each of them, recognized respondent’s interest therein, and agreed that respondent owned a one-sixth interest therein; that appellant William Johnson, agreed that, whatever interest he acquired in said property by said relocation or attempted relocation, he held it in trust for the respondent to the extent of a one-sixth interest; that in the month of January, 1899, and at divers times too numerous to mention, both appellants agreed to convey to respondent his one-sixth interest upon payment of his proportionate share of the expenses in operating and improving said mine and in performing the annual assessment work thereon, -which proposition respondent accepted; that prior to commencement of this action respondent demanded an accounting of appellants as to the amount of work and labor performed upon said property, and the amount of money expended thereon, and tendered and offered to pay appellants his proportionate share thereof, and demanded that appellants, and each of them, convey to' him his one-sixth interest therein, which they refused to do, etc.; that appellants, and each of them, have ousted respondent from possession, and refuse to' permit him to outer into, the joint possession thereof with them, and refuse1 to' allow him. to- mine or extract ores, therefrom; that appellant William Johnson and wife have conveyed a one-sixth interest to. appellant J. P. O’Farrell; that appellants have extracted and sold large bodies of ore; of the value, as respondent, believes; of $5,000, and that they are still working the same; that the only value of the property consists in the ores; and that there, is no adequate or speedy remedy at law for the waste complained of. The complaint further alleges, appellants are extracting ores from the mine, and that the value of the mine is being destroyed, and that there is no. adequate remedy at law for the waste; etc. The prayer of the complaint is for an accounting for money expended on the claim, and the amount of ores extracted therefrom, and the expense of so extracting and marketing the same, and that respondent have judgment for one-sixth of the value of all ores extracted, after deducting the expense of marketing the same; that appellants Johnson, and each of them, he decreed to hold a one-sixth interest therein for the nse and benefit, of, and in trust for; respondent, and that, if the net proceeds of ore extracted by appellants he not sufficient to pay respondent’s pro rata■ share of operating and improving the mine, then that the court decree the amount respondent shall pay appellants, and that appellants he compelled to convey to respondent a one-sixth interest in the- property, and that appellants bei enjoined from working the mine; and for such other and further relief as may seean meet and equitable.

To this complaint each of the appellants demurred on the ground that it did not state facts sufficient to constitute a cause of action. The court overruled the demurrers, and its action in this respect is assigned as error. The appellants contend that the specific cause of action relied upon is uncertain, and cite us to. Supervisors of Kewaunee County v. Decker, 30 Wis. 624, where it is said:

“It thus appears that the. authorities relied upon do not sanction the proposition, that a complaint in the first instance and where challenged by demurrer, may be uncertain and ambulatory, purposely so made, now presenting one face to the court and now another, at the mere will of the pleader, so that it may be regarded as one in tort, or one on contract, or in equity as he is pleased to name it and the necessities of argument require, and if discovered to be good in any of the. turns of phases which it may thu3 be made to assume, that it must be upheld in that aspect, as a proper and sufficient pleading by the court. These distinctions continuing, they must be regarded by the courts now as formerly, and now no more than then, except under the1 peculiar circumstances above noted, can any one complaint or count, be made to subserve the purposes. of two- or mere distinct and dissimilar causes of action at the option of the party presenting it. It cannot be 'fish, flesh or fowl’ according to the appetite of the attorney preparing the dish set before the court. If counsel disagree as to the nature of the action or purpose of the pleading, it is the province of the court to settle the dispute. It is a question when properly raised which cannot be left in doubt, and the court must determine with precision and certainty upon inspection of the pleading to what class of actions it belongs or was intended, whether of tort, upon contract, or in equity, . .

The. cause of action is the wrong complained of, — in this case, the withholding from the respondent of the one-sixth interest in the mining claim mentioned in. the pleadings, and, in connection with such ivithholding, the removal of ore from the mine. More than one state of facts may justify the relief demanded. The prayer of the complaint was for an accounting-, for injunctive relief, and that the respondent might be decreed to> be the owner of a one-sixth interest in the mine. Under the facts set out in the complaint, the relief prayed for might have been granted, and the court might have decreed (which it, in effect, did) that the relocation of the mine was a cloud upon the respondent’s title. The complaint alleges that the assessment work for 1898 was done. If such was the case, appellants’ attempted location was absolutely void, and to- that extent the complaint states facts sufficient to constitute a cause of action. Even if this were not the ease, the complaint, among other things, sets up that respondent and appellants were co-tenants, and while such relation existed a relocation of this claim was made; and it is asked that appellants be declared to- hold said property in trust for the use and benefit of this respondent. Such allegation, again, constitutes a good cause of action. The prayer was one for general relief, and under such prayer the court can give such relief, as the pleadings and evidence warrant. Dormitzer v. German S. & L. Society, 23 Wash. 132 (62 Pac. 862). In the case of Damon v. Leque, 14 Wash. 253 (44 Pac. 261), we said:

“If a plaintiff sets forth facts constituting a cause of action and entitling him to- some relief, he is not to- be turned out of court because he has misconceived the nature of his remedial right.”

See, also, Chambers v. Hoover, 3 Wash. T. 107 (13 Pac. 466); Smith v. Wingard, 3 Wash. T. 291 (13 Pac. 717); Titlow v. Cascade Oat Meal Co., 15 Wash. 652 (47 Pac. 19). In the case of Meeker v. Gilbert, 3 Wash. T. 369, 381 (19 Pac. 82), it is said:

“The form or manner of the allegations has un significance i-n that regard; the prayer of the plaintiff or defendant is without weight. The manner in which the parties may have thought best to treat it in their pleadings is unimportant; the question is as to the facts alleged.”

See, also, Watson v. Glover, 21 Wash. 677 (59 Pac. 516).

It is further claimed that the court erred in not requiring the respondent to elect upon which of the allegations in paragraph 9 of the amended complaint he would stand; the first allegation being that “over $100 worth of ivork was done in 1898, and the second allegation being that, if the same was not so' performed, it ivas through the fault, fraud, etc., of the defendants.” The court did not err in refusing to compel the respondent to elect. Under either’ state of facts alleged the respondent Was entitled to the relief he demanded. As we have said, the cause of action was the wrong complained of, and more than one state of facts might establish the wrong, and justify the relief demanded. Under the code system of pleadings, wo see no reason why all the facts justifying the relief may not he stated, and, if necessary, in the disjunctive, as in this casa In so stating facts, two; causes of action are not united in one suit. The action remains hut one cause of action. The, fads stated in the complaint clearly entitle the respondent to equitable relief, aud the court properly overruled the- demurrers and denied the motion requiring the respondent to elect.

II. P. Johnson and William Johnson answered. The answer of William Johnson denied that McDonald and Simons discovered a vein, lead, ledge, or lode of quartz and other rock in place; bearing gold, silver, lead, and copper, etc., and denied that the assessment work was performed on said mine during the year 1898. Po-r an affirmative defense; his answer alleged that on the first day of January, 1899, having theretofore discovered on unappropriated and unoccupied lands of the United States a lode or ledge of mineralized rock, bearing gold, silver, lead, and other precious metals, he located said claim, etc. The answer of the appellant TI. P. Johnson admitted that in January, 1898, he became; the owner of an undivided one-sixth interest in the Tenderfoot lode mining claim, and was thereafter recognized and considered as a tenant in common in and to said property; admitted that McDonald and Simons discovered a vein, lead, ledge, or lode of quartz or other rock in place, bearing gold and silver, etc., but denied that the assessment work was done upon said property in the year 1898. The answers of the Johnsons contained other denials and statements, but we do not deem it necessary to- set them forth. We think the evidence in this ease establishes the following facts-: That on or about the 23d day of March, 1896, George McDonald and Peter Simons discovered a vein, ledge-, or lode- of quartz and other rock in place; bearing gold, silver, and other valuable mineral deposits, on the lands in question, being then unappropriated government lands. On the same day they properly staked said ground, and posted the required notice thereon, and located the same under the name of the Tenderfoot, and thereafter, on the 9th day of April, 1896, caused said notice to- be filed for record in the office of the county auditor of Steveais county, where the land was situated; and thereafter, in the year 1897, ■work vras commenced on this claim, and a tunnel was run from 35 to 50 feet. In the year 1898 the property was owned in common by respondent herein, -who held a one-sixth interest, and by IT. P. Johnson, commonly called and known in the record as “Pete Johnson,” who held a one-sixth interest; and the remaining interests in said claim were owned by J. P. O’Farrell, Peter Simons, George McDonald, and Fred Fitzgerald. In the years 1897 and 1898 Pete Johnson was working for respondent, and in the year 1897 did the respondent’s assessment work on said claim. In the year 1898 Pete Johnson acquired his one-sixth interest in said claim, and in the year 1898 he agreed to, and did, perform what he claimed ivas the assessment work for himself and the respondent. In the year 189S over $100 worth of assessment work ivas done on this claim. During the month of December, 1898, and for several months prior thereto; Pete Johnson was living Avith his brother William Johnson at the Cleveland camp, about fourteen miles from the claim in litigation, lie had heard, aboun December 1, 1898, from Fred Fitzgerald (one of the OAvners of said claim), as he asserts (though it Avas denied by Fitzgerald), that the assessment AA'ork on the claim had not been done; and he SO’ informed his brother William at that time’. William testified: “I told him the last day of December, 1898, if the work had not been done, to locate it for me.” Pete Johnson had not been on the claim after March, 1898, until he Avent upon it to relocate it, as he says, at the1 request of William Johnson. William Johnson and the respondent were and still are OAvners in other mining property situated in that district, and William knew a long time prior to January 1, 1899, the relation that existed between Pete and Yarwood; kneAv that Pete was a tenant in common with Yarwood and the other parties in '.‘he Tenderfoot; and kneAV that Pete Avas on this claim in 1898, doing the assessment work for himself and respondent Yarwood. In 1898 the owners of the Silver Queen, an adjoining or near-by claim,, had struck a rich, vein or body of ore, and had been shipping considerable ore therefrom. Both the Johnsons knew this in 1898, and thought that the vein on the Silver Queen passed through the property in question. William testified : “From the description Pete gave me of it, I thought there was a good chance of it running through there. Question. Pete told you the Silver Queen was a pretty good property? Didn’t he think it was a pretty good property ? Answer. I guess it was. They were shipping ■ore from it. Question. You say Pete said he thought the ledge ran from the Silver Queen through this ground? Answer. Yes, sir.” William Johnson had never been on the Tenderfoot prior to January 1, 1899, and was never on the Tenderfoot until in May or June of 1899. On December 31, 1898, he wrote out a notice of the location, and signed it, giving to the claim the name of ‘Yog Cabin.” His brother Pete described this property to. him, in order to enable him to make out this notice of location. Pete testified: “I told him about where the Tenderfoot was situated, and said, ‘Well, you know where it. is situated; then you can stake it, that way.’ Question. You gave him the description ? Answer. I gave him the description.” After "William wrote out the notice of location, he gave it to Pete, with directions to go and locate the claim, and to. be careful that no one else got in ahead of him, and William stated that Pete stated to him that he located the same shortly after midnight of January 1, 1899. Pete says that he located it on January 1, 1899, after breakfast. Pete left the same day that his brother drew up^ the notice, to go to the mine and post it upon the claim. On January 1, 1899, after posting up this notice on this property and restaking the claim, he went back to the home of his brother William, and continued to reside with thm for some time thereafter. Peta did not go back upon the claim until some time in March or April, 1899, at which time he claims that his brother agreed to- give him a half interest in the claim if he wonld go and develop- it. Accordingly he went hack and commenced work there, and ■worked there from that time on. Ho extended a new tunnel on the claim several hundred feet. Immediately after the responder! found ont that Pete had attempted to relocate this claim in his brother William’s name; he went to see William Johnson, and,. in a conversation, respondent asked him about the jumping of this claim. William told him chat it would not hurt him; that he calculated to- give him his interest; that he intended to give him and Jack O’Parrell their interest in the property. William Johnson denies that he agreed to give an interest to- the respondent, hut states that he agreed to sell him an interest. The evidence, however-, shows that at all times the respondent wa^- claiming and still claims an interest in the Tenderfoot. One of the main questions in dispute is as to whether $ i ('0 worth of assessment work was done on this claim in 1898. The testimony of the respondent clearly establishes 1-hat more than $100 worth of work was done on the claim in 1898. But altogether ignoring the testimony offered on behalf of respondent, we think the testimony of the appellants shows that at least $100 Worth of work was done ogi this claim in 1898, and that it was not subject to- relocation because of failure t,o do¡ assessment work thereon. L. E. Yan Horn, a witness for appellants, says that in 1397 the old tunnel was in 35, may-be 4-0, feet. W. H. Allen, another witness for appellants^ testified that in the fall of 1897 it was in 40 or 50 feet. The Monday before Allen testified in this case; he- measured the old tunnel, and found that it was in 89 feet. He further testified that hut 12 or 14 feet of new work was done on this old tunnel after "December 31, 1898, so that on that date tliis tunnel was in from 75 to- 77 feet. The testimony of the appellants shows that it was worth $é a foot to extend this tunnel, some of the testimony putting it as high as $5 a foot. A simple computation on this basis will show that at least $100 worth of work was done on the tunnel in 1898, in extending’ it the distance it was extended between 1897 and the time it was measured by Allen, deducting the 12 to- 11 feet of extension done in 1899. It follows that the rest must have been done in 1898. It is true that the evidence, is not clear that all the co-owners did their share of assessment work in 1898, but that makes no difference'. $100 worth of work was done upon the claim, and, in the absence of proof to- the contrary, the presumption is that it was done by the co-owners, or some of them.

It. is also claimed that there was no discovery of mineral by the first locators. The testimony of Yarwood and Pitzgerald is positive, as. to this discovery. Pete Johnson, in his answer, does not deny the discovery; and William Johnson, in his notice of relocation, although he had never been upon the claim, set out the discovery, and sought to appropriate the land because he then discovered upon it valuable mineral. He was acting through Pete J ohnson, as herclaims. We do not think, under such circumstances, he should now be allowed to say, in the face of his notice of location and Pete’s admissions in his answer, that a discovery had not been made upon this claim by the original locators prior to the location of the Log Oabin. If Pete was his agent, Pete’s knowledge of that fact was his knowledge. The. court found as follows.:

“1. I find that H. P. Johnson and Peter J ohnson herein are one and the same party, and I find that H. P. Johnson and William Johnson, defendants herein, are brothers.

“2. I find that on the 23d day of March, 1896, and a long time prior thereto, George A. McDonald and Peter Simons were both, over the age of twenty-one years, and citizens of the United States, and residents of Stevens county, state .of Washington.

“3. I find that on the said 23d day of March, 1896, the said George A. McDonald and Peter Simons, and each of them, discovered a vein, lode, lead or ledge of quartz and rock in place'bearing gold, silver, lead, copper and other valuable mineral deposits on certain government land, situate and being in what is known as the Cedar Canyon Mining Camp or District, in the county of Stevens, state of Washington, and more particularly described as follows, towit: Commencing at a, post marked Ho-. 1, at the northeast corner, from thence; 300 feet in a westerly direction to- a center end post marked Ho. 2, thence 300 feet in a westerly direction to a corner post marked Ho. 3, thence 1,500 feet in a southerly direction to. a corner post, marked Ho. 4, thence 300 feet in an easterly direction to a center end post marked Ho. 5, thence 300 feet, in an easterly direction to a corner post marked Ho. 6, thence 1,500 feet to the place of beginning. It is bounded on the north end by the Silver Queen mining claim, situated about, one mile from the Deer Trail mine; and about two. and one-half miles south from Cedarville.

“4. I find that on the 23d day of March, 1896, under and in conformity with the laws of the United States and of the state of Washington, relating to the location of quartz mining claims, said George A. McDonald and Peter Simons, located the above mentioned and described mining, claim, and designated the same by the name of the ‘Tenderfoot/ and duly marked the boundaries thereof in conformity with 1he laws of the United States and of the state of Washington, and in all other respects complied with the laws in order to complete, said location, designating the corners of said claim, and the east and west ends thereof by plainly marked and substantial stakes, placed in the ground in a substantial and firm manner, so1 that the boundaries of said claim could be easily and readily traced, and upon each and all of said stakes engraved and marked thereon the designation, object and purpose of said stakes and monuments, together with the name of the locators, the date of location and at the same time; within the boundaries of said claim and at the point of discovery, posted a notice of location, containing a description of said claim, and thereafter recorded the same in Stevens county, on the 9th day of April, 1896, in Book £1$P of Quartz Claims of the records of Stevens county, state of Washing'ton.

“5. I further find that on the 2d day of March, 1897, the said Peter Simons hereinabove mentioned, by a mining deed of that date, duly and regularly conveyed an undivided one-sixth interest in and to- the property hereinabove described, to one James Davis; and that there»after, on June 28, in the year 1897, said James Davis, by mining deed, duly and regularly conveyed to the plaintiff herein, W. J. Yarwood, said one-sixth interest to the property herein last above described, and that he, the said W. J. Yarwood, is still the owner of the sama

“6. I find that thereafter, t-owit: On the 29th day of January, 1898, by mesne conveyances through the original locators and one J. P. O’Farrell, the defendant herein, Peter Johnson, became the owner of an undivided one-sixth interest in and to the property hereinabove described, known as the ‘Tenderfoot’ mining claim, and was thereafter recognized and considered as a tenant in common with the plaintiff herein, and others in and to said property, and that he has never parted with his said interest.

“7. I find that in the years 1896, 1897 and 1898, one hundred dollars’ worth of assessment work was done for each and every of said years upon the property herein-above described and that all the conditions required by the government to hold said claim above described, were duly and regularly performed by the owners thereof.

‘‘8. I find that in the year 1898, the defendant herein, H. P. Johnson, at plaintiff’s special instance and request, undertook, promised and agreed to perform plaintiff’s fro rata, share of the assessment work on said property, and that he did so perforin the same thereon, for which services so performed, plaintiff paid said defendant the sum of $8.15, for his compensation therefor.

“9. I find that during the whole of the year 1898 and in the month of January, 1899, George A. McDonald and Peter Simons, the original locators of the property hereinabove described, J. P. O’Farrell, Peter' Johnson, W. J. Yarwood, plaintiff herein, and Fred Fitzgerald, were the owners, of the premises, above described as co-tenants thereof.

“10. I find that while said parties hereinabove mentioned were still co-tenants in said property and co-owners thereof, that the sa'id defendants herein, H. P. Johnson, and William Johnson, entered into' a conspiracy to cheat and defraud the plaintiff herein, and the above named co-owners of said property out,of their interest in and to said property, and that after entering into, said conspiracy to so' cheat and defraud the said plaintiff herein, and the other co-owners out of said property, the said ID P. Johnson, in carrying out of the general conspiracy to' cheat and defraud his co-tenants, out of their interest in and to said property, thereafter, towit: On the 1st day of January, 1899, and while in possession • of said premises as such co-tenants, attempted to make a relocation of the ground embraced in said ‘Tenderfoot’ claim, in the name of his said brother, William Johnson, one of the defendants hereinabove mentioned,, by then and there erecting stakes and monuments and posting notice of the same under and by the name of ‘Log Cabin’ claim; and that thereafter, towit: On the 4th day of January, 1899, he caused said notice or attempted notice of relocation to be recorded in Book I of Quartz Claims, at pagei 194, of the records of Stevens county, state of Washington. That the property so1 attempted to be relocated is the same property set out and mentioned in plaintiff’s complaint, and hereinabove specifically described.

“11. I find that thereafter, towit: On the 30th day of August, 1900, iu further carrying out the said unlawful conspiracy to, cheat, and defraud the plaintiff herein and tbei other co-tenants in and to said property out of their interest in and to the same, defendant herein, H. P. Johnson, attempted to make, an amended relocation of the attempted relocation of January 1, 1899, in the name of his brother William Johnson, one of the defendants hereinabove mentioned, and that thereafter, towit: On the 7th day of September, 1900, he caused said attempted amended notice of relocation to be recorded in Book 12 of Quartz Claims, at page: 14-1 of the records, of Stevens, county, state of Washington.

“12. I find that at the time of the attempted relocation hereinabove mentioned, and prior thereto,, the defendant herein, William Johnson, had full knowledge of all the facts hereinabove mentioned and set out.

“13. I find that during the year 1899, 1900 and 1901, that one hundred dollars’ worth of assessment work was done for each of said years, upon said property hereinabove described by the defendant herein, H. P. Johnson, for the owners thereof, and that all the conditions required by law7 to, hold said claim have been duly and regularly performed and complied with by the owners, of said property.

“14-. I find that in the year 1899 the plaintiff herein offered to do his assessment work upon said property, hut the defendants herein, and each of them, refused to permit him to- enter in and upon said premises, or to, perform any of the assessment work thereon.

“15. I find that during all the times hereinabove mentioned, the plaintiff herein had been, and now is, vólling to perform his, part of the assessment work upon the property hereinabove described, and that he is now7, and always has been, ready and willing to pay to- the defendant herein, H. P. Johnson, his proportion of said assessment work so performed by the said H. P. Johnson.

“16. I find that, the defendants herein and each of them have ousted the plaintiff and their other co-owners herein from the possession of said property, and have refused to permit him, or either of them, to enter into, the joint possession of said property with them, and have refused to permit them, or either of them, to mine said property, or to- extract ores therefrom or to make any improvements, or do any work thereon.

“17. I find that, prior to the commencement of this action, plaintiff herein demanded an accounting of defendants, and each of them, as to. the amount of work and labor performed upon said property, and the amount of ores extracted therefrom, and the amount of money expended thereon, and tendered and offered to pay said defendants, and each of them, Iris proportionate share thereof.”

We think these findings are fully sustained by the evidence. The entry of Pete Johnson in the name of William Johnson on the claim in controversy was a mere subterfuge. We are satisfied it was an entry in his own interest, and the use of his brother William’s name was a device arranged between Pete and William to deprive the other owners of their interest in the claim. When Pete undertook to- relocate this claim in the name of his brother, the relation of cotenancy existed between him, the respondent, and the other co-owners of the. property, and, so far as any evidence to the contrary appears, such relationship still continues to' exist. Pete Johnson was a co-tenant with this respondent. His possession of this property was the possession of his. co-tenants. His entry was their entry. The moment that one co-tenant enters upon property, that constitutes an entry of all. Mere lapse of time does not dissolve this relation. When be entered upon the property on January 1, 1899, he entered for the benefit of all co-tenants who- were interested with him in the claim. And William Johnson knew that, the relation of co-tenancy in this property existed between Pete, respondent, and other parties.

“All acts done by a co-tenant and relating to ox affecting the common property, are presumed to have been done by him for the common benefit of himself and the others. The relation between him and the other owners is always supposed to be amicable rather than hostile; and his acts are therefore regarded as being in subordination to the title of all the tenants, for by so. regarding them they may be made to promote the interests of all. Therefore, as a general proposition, the entry of one co-tenant inures to the benefit of all. . . . The possession or entry of one tenant in common, or joint-tenant, is always presumed to be in maintenance of the right of all; and he shall not be presumed to intend a wrong to his companions, if his acts will admit of any other construction.’ ” Freeman, Co-tenancy (2d ed.), § 166.

“The entry of one co-tenant, as we have shown, is in the absence of clear proof to the contrary, construed as conferring seizin upon all. And, supported by the same reasons, and prevailing to the same extent, is the rule that the continuing possession of a co-tenant, whether the entry was made by himself alone or in connection with his companions, is the possession of all the covenants.” Freeman, Co-tenancy (2d ed.), § 167.

See, also, McCarthy v. Speed, 11 S. D. 362 (77 N. W. 590, 50 L. R. A. 184).

From January 1, 1899, the work on this claim and discoveries therein made by the appellants inure to the benefit of Pete and those who were his co-tenants when he made the pretended relocation and entry thereunder on January 1, 1899. Cedar Canyon Consol. Min. Co. v. Yarwood, 27 Wash. 271 (67 Pac. 749). The attempted location and relocation under the name of the Log Cabin claim were mere nullities. We do not think the Tenderfoot claim became a thing of the past under the attempted relocation. The Log Cabin location was not a valid one. The co-tenancy of Pete Johnson and the respondent and the other owners of the Tenderfoot had not terminated when the attempted relocation and entry thereunder were made.

The judgment of the; court is correct, and should be affirmed, and it is so'ordered, with costs to the respondent.

Peavis, C. J., and Anders, Dunbar, Fullerton, Had-3-ey and Mount, JJ., concur.