Cascaden v. Dunbar

• Decision Date: 03 October 1911
• Docket Number: 1,938.
• Citation: 191 F. 471
• Parties: CASCADEN v. DUNBAR et al.
• Court: U.S. Court of Appeals — Ninth Circuit

191 F. 471

CASCADEN v. DUNBAR et al.

No. 1,938.

United States Court of Appeals, Ninth Circuit.

October 3, 1911

This is a second appeal. 157 F. 62, 84 C.C.A. 566. The suit was instituted June 11, 1904, by Cascaden to recover possession and title to an undivided one-half interest in a certain mining claim, known as 'No. 12a below discovery, first tier, right limit of Cleary creek, among others, situated in Fairbanks recording district, district of Alaska. The findings of the trial court were rendered June 15, 1905, and a decree entered August 5, 1905, awarding to the plaintiff an undivided one-third of the claim. On the appeal to this court, the plaintiff was adjudged to be the owner of an undivided one-half. The decree here was rendered October 28 1907, and it was thereby ordered and directed that the cause be 'remanded to the court below with directions to award the plaintiff an undivided one-half of the interest of the defendants in the claims relocated by the defendant Dunbar in May, 1903, and his appropriate interest in the proceeds thereof. ' The claims referred to in the decree include claim No. 12a below discovery. The mandate having gone down to the court below, the cause came on for hearing upon an accounting between the parties touching the gold mined from claim No. 12a, and the present appeal is from the decree of the court rendered upon such accounting.

The claims were originally located by Cascaden for Bennett Dunbar, and Scott, copartners, under an agreement whereby Cascaden was to have an undivided one-half interest for his services in making discovery and locating the claims. Later the members of the copartnership relocated the claims, in fraud of the rights of plaintiff. It was for this fraud that this court declared the relocations to be for the benefit of plaintiff to the extent of a one-half interest.

The trial court made findings of fact as follows, briefly stated:

(1) That on May 7, 1904, Bennett, Scott, and Dunbar held the legal title to the claims.

(2) On that date Bennett conveyed all his interest therein to Scott and Dunbar.

(3) On the same day Scott and Dunbar conveyed to defendants Manley and Rice an undivided one-third interest in whatever interest the grantors possessed in such mines.

(4) On August 30, 1905, Scott conveyed his interest in the claim to Dunbar.

(5) On September 15, 1905, the court, on the application of plaintiff, made an order enjoining and restraining defendants from working the claim, provisional upon the plaintiff filing a bond in the sum of $5,000, and the failure of the parties to agree upon 'a suitable and proper person * * * to receive the rents, royalties, gold and gold dust and proceeds on said mining claim pending the further litigation thereof and to be held subject to the order of this court.'

(6) That plaintiff executed the undertaking.

(7) On the same day, plaintiff and defendants agreed upon J. Donnelly, he being one of the lessees under defendants, as a suitable custodian of the gold mined from the claim.

(8) During October, 1905, Donnelly was allowed to resign, and Clement Alexander, also one of the lessees under defendants, was selected in his stead. Alexander served as custodian until December 15, 1906, when, upon application of the parties, he was discharged by order of the court. Thereupon Samuel A. Bonnifield was in like manner selected and designated as such custodian.

(9) Alexander turned over to Bonnifield $33,533.79, being the amount and value of the royalties on the gold dust mined while the former was custodian.

(10) Bonnifield served until May 22, 1908, when he, in pursuance of the order of the court, turned over to the clerk of the court $51,675.36, the amount then in his possession by virtue of his receivership.

(11) In September, 1904, the defendants Dunbar, Scott, Manley, and Rice let to Humes Bros. the lower half of Bench claim No. 12a for 30 per cent. royalty on the amount of gold mined.

(12) Humes Bros. mined the claim until July 19, 1905, when they sold to Donnelly, Alexander, and Morrison. The latter continued operations up to and subsequent to the date of the order of injunction and the selection by the parties of a custodian of the royalties.

(13) The market value of the gross amount of gold extracted by Humes Bros. and Donnelly, Alexander, and Morrison, from the claim under the lease, up to the time Donnelly was selected as custodian, was $69,596.20, of which said amount Dunbar and Scott each received as rents $6,959.62, and Manley and Rice each $3,479.81. The balance of the royalties accruing under the lease, upon gold extracted by Donnelly, Alexander, and Morrison subsequent to the selection of a custodian, was delivered over to such custodian.

(14) On October 20, 1904, Dunbar, Scott, Manley, and Rice let the upper half of Bench claim No. 12a to Riley, O'Malley, and Donnelly, reserving 40 per cent. on the gold extracted as rental.

(15) At the time of giving said lease, or later, the plaintiff entered into an agreement with Riley, O'Malley, and Donnelly. By this agreement it is stipulated as follows.

'Now, therefore, for and in consideration of the sum of one dollar, lawful money of the United States of America, to him in hand paid by the parties of the second part, the receipt whereof is hereby acknowledged, and in consideration of said parties of the second part undertaking so to extract the gold, minerals, and precious metals from said premises, so that the person or persons entitled thereto, as may be determined in said action at law, may have the benefit thereof, the party of the first part covenants and agrees to and with the parties of the second part not in said action at law or in any other action at law or in equity, to apply for an order enjoining said parties of the second part from working said premises as in said contract of lease or purported contract of lease provided.

'But nothing in this agreement contained shall be construed as recognizing the right, or any right, in said Rice, Manley, Dunbar, and Scott to execute said contract of lease, or to said premises or to any part thereof; but said action, or any other action to be commenced and involving the title to said premises shall be tried as if said lease or purported lease and these presents had not been made and executed, save and except as hereinbefore provided.

'And if in said action or in any other action involving the title to said premises, the party of the first part shall, on final judgment or decree, be adjudged or decreed the owner of said premises or of any part thereof or of any interest therein, then and in that event, the party of the first part covenants and agrees to and with the parties of the second part to make and execute a lease to and of said premises or of such part or interest thereon or therein as to said party of the first part shall be so awarded, to the parties of the second part for a term ending on said 20th day of October, 1907, at noon, such lease to contain the same covenants and conditions and agreements as said contract of lease or purported contract of lease herein referred to.'

(16) By virtue of their lease, Riley, O'Malley, and Donnelly mined the property until long after a custodian was selected by the parties.

(17) That the market value of the gross amount of gold mined by Riley, O'Malley, and Donnelly under their lease, to the time of the selection of a custodian, was $92,466.61, of which said sum Dunbar and Scott each received $12,328.80, and Manley and Rice each $6,164.40. The remaining royalties, accruing after the selection of a custodian, were paid over to such custodian.

(18) Since the date of the order of injunction and the selection of a custodian, namely, September 15, 1905, the lessees of said claim have deposited all the rents and royalties with the custodian or with the clerk of the court.

(19) Royalties in gold dust turned over to the custodians, of the value of $51,665.36, with the consent of plaintiff and defendants, have been sold and reduced to money, which is now in the hands of the clerk, and the clerk has also in his possession 15 pokes, said to contain 1,250.75 ounces of gold dust, being for royalties from the mine accruing since about June 1, 1908.

(20) During the years 1904 and 1905, and prior and subsequent to the injunction and selection of a custodian, the plaintiff resided in a cabin adjacent to Bench claim No. 12a, and had full knowledge and notice of the mining operations being carried on by Humes Bros., Donnelly, Alexander, and Morrison, and Riley, O'Malley, and Donnelly, and at no time protested against the same.

(21) That Cascaden, after the granting of the injunction, consented that Donnelly, Alexander, and Morrison, and Riley, O'Malley, and Donnelly should continue the mining operations, and did not, prior to September 15, 1905, take any steps to enjoin the mining operations upon said property.

(22) On the 20th of August, 1906, Dunbar executed a mortgage upon his interest in the mine to E. T. Barnette to secure a note given by himself and J. C. Kellum, and at the same time assigned to Barnette all his right and interest in and to three pokes of gold dust, then on deposit with the First National Bank of Fairbanks, containing in the aggregate 1,214.51 ounces; said gold dust being then and there held by the bank pending the final determination of this action on appeal.

(23) On the 19th of September, 1906, Barnette assigned the mortgage and his interest in the three pokes of gold dust to Bonnifield.

(24) On September 18, 1906, Bonnifield loaned to Dunbar $10,320, and for the purpose of securing the payment of the same, Dunbar gave Bonnifield a mortgage on his interest in the mining claim, and thereafter, for the purpose of paying his...