Bacon v. Thornton

• Decision Date: 05 November 1897
• Docket Number: 853
• Court: Utah Supreme Court
• Parties: JAMES H. BACON ET AL., APPELLANTS, v. JOSEPH THORNTON ET AL., RESPONDENTS

51 P. 153

16 Utah 138

JAMES H. BACON ET AL., APPELLANTS, v. JOSEPH THORNTON ET AL., RESPONDENTS

No. 853

Supreme Court of Utah

November 5, 1897

Appeal from the Third district court, Salt Lake county, A. G Norrell, Judge.

Action by James H. Bacon, as administrator of the estate of William F. Aulls, deceased, and others, against Joseph Thornton and others. From a judgment for defendant Thornton, plaintiffs appeal.

Reversed and remanded.

Toomey & Toomey, for appellants:-

Cited on the valuation of improvements: Van Bibber v Williamson, 37 F. 759; Burwell v. Sollock (Tex.), 32 S.W. 846; Dickel v. Smith (W. Va.), 24 S.E. 564-6; McMurray v. Day, 70 Iowa 671; Fletcher v. Brown (Neb), 53 N.W. 589; Carter v Brown (Neb.), 53 N.W. 582; Thomas v. Quarles, 64 Tex. 491; Wasatch Min. Co. v. Jennings (Utah), 46 P. 1106.

Chas. J. Pence and Jas. F. Smith, for respondents:

The plaintiff under the circumstances of this case must pay full value for labor done in good faith. Wille v. Brooks, 45 Miss. 543-548 and many cases cited; Putnam v. Ritchie, 6 Paige 39; Evansville v. Pfisterer, 34 Ind. 36; Neesom v. Clarkson, 4 Hare 97; quoted also in Thomas v. Evans, 105 N.Y. 614; Robinson v. Ridley, 6 Madd. 2; Atty. Genrl. v. Baloil College, 9 Mod. 407, 411; Bright v. Boyd, 1 Story 478; 2 Story 605; Rathburn v. Colton, 15 Pick. 471; Miner v. Beekman, 50 N.Y. 337; Smith v. Drake, 23 N. J. Eq. 302; McLaughlin v. Barnum. 31 Md. 425; Sale v. Crutchfield, 8 Bush. 636.

BARTCH, J. ZANE, C. J., and ROLAPP, District Judge, concur.

OPINION

BARTCH, J.:

This action was brought by the administrator and heirs of William F. Aulls, deceased, to determine the adverse claims of the defendants in and to an undivided two thirds interest of the I X L lode and mine, and for an accounting of the defendant Thornton for the amount of mineral ores which it is claimed he took from the mine, and converted to his own use. In the answer all the material allegations of the complaint are substantially denied, and by way of cross complaint a claim for improvements is set up by Thornton. At the trial the court, among other things, decided that the plaintiffs were the owners of the undivided two-thirds interest in the mine formerly owned by the deceased, but entered judgment in favor of the defendant Thornton for improvements in the sum of $ 1,620, with interest. Thereafter the plaintiffs prosecuted an appeal from an order allowing a motion for a new trial, and from so much of the decree and judgment as relates to the allowance for the improvements.

According to the former rulings of this court, the appeal from the order denying the motion for a new trial is ineffectual except that the matters contained in the statement may be considered by this court in the appeal from the judgment. The portion of the decree and judgment appealed from reads as follows: "That judgment be, and the same is hereby, given and entered in favor of the said Joseph Thornton and against the said plaintiffs for the sum of sixteen hundred and twenty ($ 1,620), with interest thereon at eight per cent. per annum from date until paid; that the said judgment in favor of said Joseph Thornton against said plaintiffs for the sum of $ 1,620 and interest be, and the same is hereby, declared to be a first and prior lien upon the said undivided two-thirds interest so owned by plaintiffs in said mining claim; and that said lien shall continue until said judgment shall be fully paid or satisfied." It is insisted for the appellants that there is no evidence to support such a judgment. Upon examination of the record, it must be conceded that this position is substantially correct, for it is difficult to see upon what evidence the court based this portion of the decree, as well as the finding to the effect that the reasonable value of the improvements was $ 1,620; and counsel for the respondents fail to throw light on this point. It is true, there is testimony tending to show that work was done on the property by Thornton from 1890 to 1895, the period of time in question, consisting of a tunnel of about 100 feet, a winze of 55 or 60 feet, a drift of about 130 feet, and a rise of 30 feet; but there appears to be nothing to show whether any, or all, or what portion, of this work improved or enhanced the value of the mine. It certainly cannot be seriously contended that the plaintiffs are liable for something done which does not benefit the property, and it is quite probable that work may be performed in a mine which damages, rather than benefits, it. In the absence of proof that certain work performed was a benefit to, and enhanced the value of, the mine, how can the court say that such was the case, and render judgment therefor? Declaring such to be the fact in a finding does not make it so. The proof must show the existence of the fact, or the finding will be nugatory, and the judgment which it is to support subject to attack and avoidance. Because a tunnel was driven, a winze sunk, a drift cut, and a rise made, it does not follow as a necessary sequence that they represent such substantial improvements as, ex aequo et bono, should measure the owner's liability for damages. The burden was upon the defendants to show that what work was performed improved the property, and conferred a benefit upon the owners. The court had no power to infer that such was the case, without proof. Nor, if it be conceded that some improvements were made, does the evidence show their value, or to what extent the mine was enhanced in value, or that the improvements made are equal in value, to the amount allowed the defendants by the decree. The cost of some of the material used, and of ordinary labor per diem, is given, but not of the improvements made; and, even if the whole cost were shown, that would not determine the value, because the cost of an improvement may be, and frequently is, greater than its value or benefit to the property; and to charge the true owner with the cost of improvements which exceed the enhancement in value, or with such as do not increase the value of the property, would be inequitable and unjust. The law, doubtless, is that where the rightful owner of real property seeks relief against one who is bona fide in possession under color of title, and who has made valuable, lasting, and beneficial improvements, which enhance the value of the estate, such owner must do equity, by compensating the...