Cascaden v. Dunbar

• Decision Date: 28 October 1907
• Docket Number: 1,312.
• Citation: 157 F. 62
• Parties: CASCADEN v. DUNBAR et al. DUNBAR et al. v. CASCADEN.
• Court: U.S. Court of Appeals — Ninth Circuit

157 F. 62

CASCADEN v. DUNBAR et al.

DUNBAR et al. v. CASCADEN.

No. 1,312.

United States Court of Appeals, Ninth Circuit.

October 28, 1907

These are cross-appeals, the plaintiff below being the appellant and cross-appellee, and the defendants the appellees and cross-appellants. The suit was brought to charge the defendants Dunbar, Scott, and Bennett, as constructive trustees of the plaintiff's alleged interest in certain mining claims situated in the Fairbanks mining district of Alaska, and to compel the conveyance thereof to him; the substance of the complaint being that on or about November 30, 1902, the plaintiff, being about to start on a prospecting trip for himself, entered into an agreement with those defendants, alleged to have been copartners carrying on the business of packers and miners under the name, style, and firm of Charles Scott, John Bennett, and George F. Dunbar, by which the plaintiff was at his own expense to proceed to search for, prospect and stake certain placer mining claims, and that, in addition to the claims staked for himself, he was to stake for, and in the name of, the said named defendants, or either of them certain placer mining claims, in consideration of which the said named defendants agreed that they would forthwith, after such staking, record the locations thereof, and fulfill the other requirements of the rules and regulations governing the location of placer mining claims on vacant public lands, and convey to the plaintiff a one-half interest therein; that in pursuance of the agreement, and in accordance with those provisions, the plaintiff did on or about December 2, 1902 stake for the defendants Dunbar, Scott, and Bennett the following placer mining claims: '(A) In the name of the defendant John Bennett, side claim No. 12A below discovery on Cleary creek on the right limit, and the first tier thereof placer mining creek claim No. 3, from the mouth of Lulu creek, a tributary of Cleary creek, placer mining claim No. 5 above discovery on Solo creek, a tributary of Fish creek, and the fractional creek claim No. 2, above discovery on Burns creek; (B) in the name of the defendant Charles Scott, creek placer mining claim No. 8 above discovery on Solo creek; (C) in the name of the defendant George F. Dunbar, a fraction known and described as fractional creek placer mining claim between discovery creek placer mining claim between discovery and No. 1 above on Solo creek, about 1,100 feet in length,-- all of which said claims and creeks are situated in the Fairbanks mining district of Alaska. ' And that thereupon the defendant Bennett did on the 20th day of December, 1902 convey to the plaintiff a one-half interest in the claims so staked in Bennett's name, but that thereafter, intending to cheat the plaintiff out of his interest in the claims so located by the plaintiff, he entered into a fraudulent scheme with the defendants Scott and Dunbar, by which the three would abstain from recording the notices of the location of the claims as required by statute, and, in pursuance of such fraudulent scheme, the said three named defendants did so abstain and 'so endeavored to cause the said claims to lapse and revert, and become reopen for entry,' by reason of their failure to record, and there and then, and after the time for recording had passed, and that said defendants deemed said claims reopen for location, the said defendants Scott, Bennett, and Dunbar, with the intent to cheat and defraud the plaintiff as aforesaid, re-entered them as follows: '(A) The defendant George F. Dunbar restaked, relocated, and recorded in his name, for the partnership, side claim No. 12A below discovery on Cleary creek, right limit, first tier, and also the other claims previously located by the plaintiff in the name of the defendant Bennett, and also creek claim No. 8 above discovery on Solo creek, located by the plaintiff in the name of the defendant Scott. (B) The defendant Bennett restaked, relocated, and recorded, in his name for the partnership, the fractional creek claim previously located by the plaintiff in the name of the defendant George F. Dunbar, being fractional creek claim, about 1,100 feet long, situated on Solo creek between discovery and No. 1 above. (C) The defendant Charles Scott located in his name, for the partnership, the claim formerly located by the plaintiff for the defendant Bennett, to wit, No. 5 above discovery on Solo creek. ' The complaint further alleged that on the 17th day of May, 1904, the defendants Dunbar, Scott, and Bennett attempted to convey to the defendants Manley and Rice a one-third interest in the claim No. 12A below discovery on Cleary creek, and that those defendants had at the time full knowledge of the plaintiff's rights in the premises; that the claim last mentioned is of a value in excess of $200,000; that the defendants are in possession thereof, operating the same, and extracting gold therefrom, to the plaintiff's damage; that the plaintiff has performed all of the covenants and conditions on his part to be performed under the agreement alleged, and has requested the defendant to convey to him, by a good and sufficient deed, his one-half interest in the claims, and to let him in possession thereof, and to account to him and pay him his share of the proceeds thereof-- all of which they refuse to do. The defendant Bennett filed a separate answer, in which he admitted making the deed to plaintiff of December 20, 1902, but denying all of the other allegations of the complaint. The other defendants filed a joint answer, in which they denied all of the allegations of the complaint, with the exception that they admitted their possession and operation of claim No. 12A below discovery on Cleary creek, and admitted that that claim is worth $50,000. Upon the issues thus raised the case was tried before the court...