Bolen v. Baker

• Decision Date: 23 February 1949
• Docket Number: 7390
• Citation: 203 P.2d 376,69 Idaho 93
• Parties: BOLEN v. BAKER
• Court: Idaho Supreme Court

203 P.2d 376

69 Idaho 93

BOLEN v. BAKER

No. 7390

Supreme Court of Idaho

February 23, 1949

Appeal from District Court, Seventh District, Canyon County; A. O Sutton, Judge.

Affirmed.

Marshall Chapman (deceased) and Lawrence B. Quinn, both of Twin Falls and Dunlap & Dunlap, of Caldwell, for appellant.

The rule requiring a very high degree of proof where parol evidence is relied upon to establish the trust is especially applicable where one or more of the parties to the transaction are deceased, oral declarations or admissions of persons since deceased, offered to show the trust, received especially with great caution. Wilson v. Warner, 84 Conn. 560, 80 A. 718; Harvey v. Pennypacker, 4 Del.Ch. 445; Streeter v. Gamble, 298 Ill. 332, 131 N.E. 589, 23 A.L.R. 1485; Chambers v. Emery, 13 Utah 374, 45 P. 192; Hudkins v. Crim, 64 W.Va. 225, 61 S.E. 166; Quirk v. Bedal, 42 Idaho 567, 248 P. 447.

Earl E Garrity, of Nampa, for respondent.

No partnership existed. Status was of employer and employee. 52-401, I.C.A. "When Mining Partnership Exists. -- A mining partnership exists when two or more persons who own or acquire a mining claim for the purpose of working it and extracting the mineral therefrom, actually engage in working the same." Madar v. Norman, 13 Idaho 585, 92 P. 572; Anaconda Copper Mining Co. v. Butte & Boston Mining Co., 17 Mont. 519, 43 P. 924; Hawkins v. Spokane Hydraulic Mining Co., 3 Idaho (Hasb) 650, 656, 33 P. 40; First National Bank of Hailey v. G.V.B. Mining Co., C.C., 89 F. 449; Morrison's Mining Rights Page 370.

Porter, Justice. Holden, C. J., Givens and Hyatt, JJ., and Baker, District Judge, concur.

OPINION

Porter, Justice.

The facts in this case disclosed by the transcript are substantially as follows: The appellant and Karl W. Baker, deceased, came from Minnesota to Canyon County, Idaho, in the fall of 1916. During World War I they went to Seattle, Washington and worked in the shipyards. While in Seattle, Baker was married to the respondent, Lettie May Baker. Upon completion of their work in the shipyards, they returned to Canyon County. The appellant made his home from time to time with Mr. and Mrs. Baker, sometimes, and sometimes not, paying board. Baker became engaged in the sand and gravel business, owning and operating several trucks.

In the spring of 1936, the appellant was staying at the home of Mr. and Mrs. Baker, recuperating from an illness. On the first day of May, 1936, he became employed by Mr. Baker as bookkeeper at the wage of Fifteen Dollars per week. One Joe E. DeLain was the owner of a truck and was also employed at the time by Mr. Baker in the gravel business.

DeLain as a witness testified that sometime thereafter Baker and DeLain operating as a partnership, commenced to work and develop a certain gravel bed in Canyon County. That appellant also did some work on the property as an employee of the partnership. That thereafter Baker and DeLain decided to file a placer mining claim on the property; and that it was arranged that Bolen and DeLain should go to Caldwell to make the filing. The respondent, Mrs. Baker, after testifying that the three men had a conversation at her home the day the placer claim was filed, testified as follows:

"Q. (By Mr. Garrity) When and were did the conversations take place, and if there were conversations, what was the nature of the conversations. * * * A. There were. The conversations was at the dinner table when they all came in for lunch, and my husband said to me, he said the boys are going to go to Caldwell and file a placer claim this afternoon. He also said -- I said, aren't you going, you and Joe DeLain, and he said, No, Bill is going to file for me. He said I have a lot of work to do to set up machinery this afternoon, and after we left the dinner table -- that was the conversation they were having at the dinner table, and as soon as we left the dinner table they got ready to go and he said to me, get the money and give the boys the money to go and file the claim, and I went and got a five dollar bill and handed it to Mr. Bolen to file the claim.

* * * *

"Q. (By Mr. Garrity) Then what happened, Mrs Baker. A. Well, Mr. Baker went back out to the claim, went to work and Mr. Bolen and Mr. DeLain got into Mr. Bolen's car and went to file the claim. I didn't see anything more of them until they came in that night for supper." (Folios 52-55.)

On July 1, 1936, a placer mining location notice was filed with the Recorder of Canyon County wherein the locators set out that on June 17, 1936, they discovered, and on June 18, 1936, located the Hilltop Placer comprising the Northeast Quarter of the Northeast Quarter (NE 1/4 NE 1/4) of Section Twenty-seven (27) tw 3W 3N in Canyon County, Idaho, consisting of forty acres. The location notice was signed by J. E. DeLain and Wm. A. Bolen, Locators and Claimants. Thereafter the claim was developed and Baker and DeLain used the pit as a source of sand and gravel. The appellant continued his work as bookkeeper being in the employ of the partnership of Baker and DeLain. However, he assisted in putting up the discovery stakes and monuments on the claim and assisted in erecting the bunkers.

It is the contention of the respondents that appellant was acting as the agent for Baker in filing the location notice and that the filing on the mining claim was for the use and benefit of the partnership of Baker and DeLain. The appellant testified and contends that the partnership was between DeLain and the appellant, and that the filing was made for their use and benefit, each owning an undivided one-half interest therein. The witness, DeLain, testified that he never was in partnership with the appellant, Bolen, at any time.

On January 1, 1937, DeLain sold all his interest in the claim to Baker. The appellant continued to work for Baker as a bookkeeper until June 14, 1937, when, some trouble having arisen between the parties, he was discharged. He thereupon left the vicinity of Nampa and apparently made his home in Hailey. Thereafter the appellant never did any work on the claim or spent any money thereon or displayed any interest therein. However, he did visit at the Baker home on two or three occasions and may have gone out to the claim with Mr. Baker. Mr. Baker continued to work the claim until the time of his death on June 4, 1945.

In the meantime, on September 27, 1938, Mr. and Mrs. Baker filed a new mining claim called the Lakeview, covering practically the same ground. Mrs. Baker testified that this filing was brought about because the discovery stakes and boundary markers were all down and that Mr. and Mrs. Baker were afraid that a third party would file on the claim.

After the death of Mr. Baker, Mrs. Baker was duly appointed administratrix of his estate. Whereupon the appellant filed a claim for Four Thousand ($ 4,000) Dollars with the administratrix representing an alleged undivided one-half interest in the profits from said mining claim. Appellant's claim being denied by the administratrix, this action was commenced to quiet title to an undivided one-half interest in and to said mining claim in the appellant and for an accounting.

By the first cause of action in his complaint, the appellant alleges the discovery and location of the Hilltop placer mining claim by Wm. A. Bolen and J.E. DeLain, and the filing of the placer mining location notice by such locators and claimants; and alleges that the appellant at all times has been and now is the owner of an undivided one-half interest in and to such claim. By his second cause of action, the appellant seeks an accounting. The appellant prays that the respondents be required to set forth the nature of their claims; that it be adjudged that the appellant is the owner of an undivided one-half interest in and to such mining claim; and for an accounting. To the complaint the respondents filed an answer, the same being in effect, a general denial. Respondents did not ask for any affirmative relief.

The cause was tried to the court sitting without a jury. At the trial, by stipulation of the parties, the accounting feature of the case was deferred for later consideration by the court. The appellant placed in evidence an abstract of title showing the location notice of the Hilltop placer mining claim; the bill of sale from J.E. DeLain to Karl W. Baker; the creditor's claim filed by appellant with the administratrix; and testimony to the effect that the Lakeview placer mining claim covers approximately the same ground as the Hilltop placer mining claim. The appellant then rested his case.

After the appellant rested, the respondents asked the court for permission to amend the answer by setting up an affirmative defense. Over objection by counsel for appellant, the court granted such permission and thereafter an amended answer was filed by the respondents containing the following allegation:

"Defendant further answering plaintiff's first cause of action, and by way of affirmative defense, alleges that the plaintiff herein has been guilty of laches, and his action set out in the first cause of action if any he has, is barred by the statute of limitations thereof."

Thereafter respondents introduced evidence tending to show first, that the appellant was the agent of Karl W. Baker, deceased, in making the filing on the Hilltop placer claim and made such filing for and on behalf of Baker. And second, that appellant if he ever had any interest in such claim, had abandoned the same. The appellant objected to the admission of this evidence on the ground that it was not admissible under the pleadings but such objection was overruled by the court and the evidence received. After the respondents rested, the appellant in...