Broatch v. Boysen

• Decision Date: 13 October 1916
• Docket Number: 4409.
• Citation: 236 F. 516
• Parties: BROATCH et al. v. BOYSEN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

236 F. 516

BROATCH et al. v. BOYSEN et al.

No. 4409.

United States Court of Appeals, Eighth Circuit.

October 13, 1916

T. B Hardin and Harold B. Elgar, both of New York City, for appellants.

John W Lacey, of Cheyenne, Wyo. (Herbert V. Lacey, of Cheyenne Wyo., on the brief), for appellees.

Before SANBORN and CARLAND, Circuit Judges, and TRIEBER, District judge.

SANBORN Circuit Judge.

The appellants challenge the accounting and final decree made by the court below pursuant to the decision of this court and its mandate in Broatch v. Boysen et al., 175 F. 702 710, 99 C.C.A. 278. In April, 1899, Boysen agreed with the appellants and others that they would, at their joint expense, prospect for, and, if possible, obtain from the United States, a lease of a large tract of land in the Shoshone and Wind River Indian reservation in Wyoming available for coal and other minerals. Boysen in 1899 proceeded to acquire such a lease of 178,000 acres of land for 10 years. In March, 1905 (Act March 3, 1905, c. 1452, 33 Stat. 1016), Congress passed an act which gave him, the lessee, a preferential right for 30 days after the government surveys of the reservation were completed to locate and enter for $10 an acre 640 acres of mineral or coal land in a square form in that reservation. He then searched out, located, and entered the tract of land he was entitled to take, and the patent therefor was issued to him on May 19, 1907. In the year 1905 he organized the Asmus Boysen Mining Company, and after he had entered the land made a contract to convey it to that corporation. He expended large sums of money in prospecting for coal and for other minerals, in order that he might select, both for his lease and for his patent, land valuable for coal and for other minerals, and he expended much more in endeavors to develop mines upon these lands. After he had entered and secured the patented land, the appellants brought this suit against Boysen and the Boysen Mining Company to charge the patented land with a trust in their favor, and this court directed the court below to render a decree, and it did so:

'That an accounting be had of the amount expended by Boysen in acquiring the lease and the patented land and in the development thereof, and also of any amounts which he had received therefrom; that unless each of the complainants (appellants here) John T. Clarke and William J. Broatch pay to the defendant Asmus Boysen Mining Company, a corporation to whom the lands have been conveyed since the institution of this suit, the sum of two thousand dollars ($2,000), and in addition thereto the amount which one-sixteenth of said expenditures shall exceed the sum of $2,000, within 60 days after the accounting shall be closed and finally approved by the court, then the bill be dismissed as to them; that unless each of the complainants (appellants here) Robert C. Wertz and Charles J. Woodhurst pay to the defendant the Asmus Boysen Mining Company the amount which one-sixteenth of said expenditures exceeds the sum of $2,000, then the bill be dismissed as to each of them; and that in case any of them make the payment within 60 days, then the Asmus Boysen Mining Company shall convey to each of said four complainants who make such payment one-sixteenth interest in the said real estate described in the patent.'

Pursuant to these directions the District Court took the accounting, found and adjudged that within 60 days from the date of its decree each of the complainants Clarke and Broatch pay to the Mining Company $5,972.06, and each of the complainants Wertz and Woodhurst pay to the Mining Company $3,972.06, that upon payment by any of them of the amount required of him the Mining Company convey to him one-sixteenth of the patented real estate, and that upon the failure of any of them to make such payment within 60 days after the entry of the decree the bill be dismissed as to him. The basis of this decree was that the court found that Boysen had legitimately expended in acquiring the lease and the patented land and in the development thereof $12,000 counsel fees, $6,803.10 as the price of the patented land, $61,875 in driving the Cross Cut tunnel, $16,000 in driving the Anderson tunnel, $3,000 in driving smaller tunnels, and $3,000 in sinking a shaft, making in the aggregate $102,678.10, and that he had received from the sale of stock of the Boysen Mining Company $39,125, so that he had expended $63,553.10 more than he had received.

Counsel for the complainant challenge this accounting in various ways. They assail the allowance of the $12,000 for counsel fees on the grounds that the payment thereof was not within the trustee's authority under the agreement of April 1899, that it was not reasonable compensation for the services, that the services were not performed until after the selection of the land by Boysen, and that the expenditure of this money was of no benefit to the complainants. The record contains persuasive proof that after Boysen, with much expense and toil, for which he has received no allowance in this accounting, had secured, by means of the act of March 3, 1905, the preferential right to locate and enter 'not exceeding 640 acres of mineral and coal lands ' in the Indian reservation, the Secretary of the Interior, through the Indian agent and the Indian police, prohibited and prevented him from entering upon the reservation, or surveying or prospecting any land thereon, for the purpose of exercising his preferential right and selecting his mineral and coal land. Thereupon he retained eminent counsel, who brought a suit for him in the court below for an injunction forbidding the Indian agent and his agents, servants, and employes from preventing Mr. Boysen from entering upon and prospecting the reservation, in order to make a selection of his tract of 640 acres of mineral and coal land. That suit was tried by Hon. John A. Riner,...