Clarke v. Boysen

• Decision Date: 14 May 1930
• Docket Number: 165.,No. 40-48,40-48
• Citation: 39 F.2d 800
• Parties: CLARKE et al. v. BOYSEN et al., and nine other cases.
• Court: U.S. Court of Appeals — Tenth Circuit

39 F.2d 800 (1930)

CLARKE et al. v. BOYSEN et al., and nine other cases.

Nos. 40-48, 165.

Circuit Court of Appeals, Tenth Circuit.

February 17, 1930.

Rehearing Denied May 14, 1930.

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Fred R. Wright and Clarence L. Ireland, both of Denver, Colo. (Gail L. Ireland and R. H. Blackman, both of Denver, Colo., on briefs), for appellants in No. 40 and appellees in Nos. 41, 43, 46, 48.

Clarence L. Ireland, of Denver, Colo. (R. H. Blackman, of Denver, Colo., on the briefs), for appellants in Nos. 42 and 45.

Fred R. Wright, of Denver, Colo. (Gail L. Ireland, of Denver, Colo., on the briefs), for appellants in Nos. 44, 47, and 165.

Andrew C. Scott and John L. Rice, both of Denver, Colo. (J. C. James, of Chicago, Ill., and J. Q. Dier, of Denver, Colo., on the briefs), for appellants in Nos. 41, 43, 46, and 48, and for appellees in Nos. 40, 42, 44, 45, and 47.

Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.

PHILLIPS, Circuit Judge.

The above ten appeals are prosecuted from the decrees in four cases in the United States District Court for the District of Wyoming, numbered 288, 980, 1320, and 1513, respectively, in the lower court.

In No. 288, there are two appeals: No. 40 by John T. Clarke, hereinafter referred to as Clarke, and No. 41 by the Chicago, Burlington & Quincy Railroad Company, hereinafter called the Burlington Company, and Big Horn Railroad Company.

In No. 980, there are two appeals: No. 42 by Clarke and No. 43 by the Burlington Company, and Big Horn Railroad Company.

In No. 1320, there are four appeals: No. 44 by Pogson and Smith, trustees under a mortgage; No. 45 by Henry T. Clarke and Ella R. Clarke, holders of bonds secured by such mortgages, who intervened therein, and No. 46 by the Burlington Company, and Big Horn Railroad Company; No. 165, by Pogson and Smith, as trustees, from an order denying leave to file a bill of review therein.

In No. 1513, there are two appeals: No. 47 by Clarke, Midwest Power & Light Company, Clarke Land & Loan Company, H. F. Clarke, Jr., Henry T. Clarke, Jr., Maurice G. Clarke, Ella R. Clarke, G. C. Whittal and Thomas Hunter, receiver of the Big Horn Power Company, who were defendants therein; and No. 48 by the Burlington Company, plaintiff therein.

History of Prior Litigation.

Cause No. 288, in the lower court, in which appeals Nos. 40 and 41 have been prosecuted, was commenced in 1906 by William A. Broatch and others against Asmus Boysen, hereinafter referred to as Boysen, and others to compel specific performance of a contract and to impress a trust, in favor of Broatch and others, upon 680 acres of land. In that suit, the decree went for the defendants and complainants appealed.

The court of appeals found the following facts: On April 1, 1899, Boysen signed a written agreement which recited that Clarke, Boysen, four unknown persons and six other persons had entered into such agreement for the purpose of leasing land on the Wind River or Shoshone Indian reservation in Wyoming; that each of the parties thereto, excepting Joseph Weis, Robert C. Wertz, Jacob E. House, Chas. J. Woodhurst, Adam Morell and one of the unknown persons, should pay $2,000 each, in installments, into a certain trust fund; that the six persons, last above referred to, should receive a 1/16th interest in the trust for the consideration of $1.00 and other consideration, which they had theretofore contributed; that the leases should be taken in the name of Boysen and upon the approval of such leases he should assign them to Adam Morell, as trustee for the parties to such agreement. Thereafter, on July 1, 1899, Boysen secured a coal mining lease on 178,000 acres of land on such reservation. This lease was approved October 4, 1899. In March, 1905, Congress passed an Act entitled, "An act to Ratify and amend an agreement with the Indians residing on the Shoshone or Wind River Indian Reservation in the State of Wyoming and to make appropriations for Carrying the same into effect." See 33 Stat. 1016. This Act contained the following proviso:

"And provided, That nothing herein contained shall impair the rights under the lease to Asmus Boysen, which has been approved by the Secretary of the Interior; but said lessee shall have for thirty days from the date of the approval of the surveys of said land a preferential right to locate, following the Government surveys, not to exceed six hundred and forty 640 acres in the form of a square, of mineral or coal lands in said reservation; that said Boysen at the time of entry of such lands shall pay cash therefor at the rate of ten 10 dollars per acre and surrender said lease and the same shall be cancelled."

Pursuant thereto, and on June 27, 1906, Boysen selected and entered a tract of 680.31 acres, hereinafter called the patented tract, and on May 17, 1907, a patent therefor was issued to Boysen. On May 19, 1907, Boysen executed and delivered a deed for such land to the Asmus Boysen Mining Company, hereinafter called the Boysen Mining Company.

The court concluded, under the foregoing facts, that Boysen, upon obtaining the lease, held the leasehold estate created thereby in trust for the respective parties named in and who accepted the agreement of April 1, 1899; and that, under familiar principles of equity, such trust attached to the patented tract for which such leasehold estate was exchanged.

The court held that the agreement was binding upon those parties who accepted it and assented to its terms, and directed the District Court to dismiss the bill as to all the complainants excepting Clarke, Wm. J. Broatch, Mary F. House, personal representative and sole heir of Jacob E. House, deceased, Robert C. Wertz and Chas. J. Woodhurst.

The Circuit Court of Appeals directed that an accounting be had of the amounts expended by Boysen in acquiring the lease and the patented tract, and of any amounts he had received therefrom. It decreed that, unless Clarke and Broatch each should pay to the Boysen Mining Company the sum of $2,000, and the amount which 1/16th of such expenditures should exceed $2,000, within 60 days after the accounting was approved by the District Court, the bill should be dismissed as to them; and that, unless Robert C. Wertz and Chas. J. Woodhurst each should pay to the Boysen Mining Company the amount which 1/16th of such expenditures should exceed the sum of $2,000, within 60 days after the approval of such account, the suit should be dismissed as to them; that the Boysen Mining Company should convey a 1/16th interest in such real estate to each of such complainants, who made their respective payments as above required; and that the Boysen Mining Company should convey to Mary F. House a 1/16th interest in such real estate. See Broatch v. Boysen (C. C. A. 8) 175 F. 702.

Joseph Weis accepted the agreement. He was made a party defendant to the original bill, but failed to appear, and a decree pro confesso was taken against him. His interest was later conveyed to Maurice G. Clarke and a suit regarding this interest is now pending in a state court of Wyoming.

This left nine unaccepted shares or interests. Appeal No. 42 from cause No. 980 has to do with the disposition of these nine shares.

The decree of the Circuit Court of Appeals established the 1/16th interest of each of the following persons: Jacob E. House, Chas. J. Woodhurst, Robert C. Wertz, William J. Broatch and Clarke. Clarke now has his original interest or share and he has purchased the shares of Broatch, Woodhurst, Mary F. House and 1/2 of the share of Wertz.

Pursuant to the directions of the Circuit Court of Appeals, an accounting was taken between Boysen, as trustee, and the other parties whose interests were established, and a decree was entered on such accounting in case No. 288. From such decree, in cause No. 288, complainants appealed. See Broatch v. Boysen, 236 F. 516. The Circuit Court of Appeals modified the decree by reducing the net amounts, required to be paid by Broatch and Clarke, to the sum of $3,972.06 each, and the net amounts, required to be paid by Woodhurst and Wertz, to the sum of $1,972.06 each.

On June 4, 1918, Clarke, in his own right and as assignee of Broatch, Wertz, Woodhurst and Mary E. House, presented to the trial court a verified supplemental bill. This bill set forth the assignments to Clarke of the interests of Broatch, Wertz, Woodhurst and House, and averred that, pending the litigation, the Boysen Mining Company had conveyed 88 acres of the patented tract to the Big Horn Power Company and had also conveyed a right-of-way to the Burlington Company; that the portion of land so conveyed was the most valuable part of the whole patented tract; that a tender of the payments required would be useless and unavailing because the Boysen Mining Company was not in a position to comply with the decree. Thereafter, on the same day, the District Court made an order requiring the complainants in cause No. 288 to pay into court the respective amounts due the Boysen Mining Company, within ten days. The order further provided that, in the event of default in such payments, the action should be dismissed.

On June 18, 1918, Clarke, as assignee of Wertz and Woodhurst, paid into court 1/2 of the amount ordered to be paid by Wertz, that is, $986.03, and the full amount ordered to be paid by Woodhurst, that is, $1,972.06, and prayed the court to retain such payments in the registry of the court until the matter, set forth in such supplemental bill, could be adjudicated. The court denied this request and ordered the money paid to the attorney for the Boysen Mining Company.

On the same day, to-wit, June 18, 1918, Clarke, in behalf of himself and as assignee of such other interests, asked leave to file a second supplemental bill setting up a counter-claim for damages for the use and occupation of the patented tract and also asked that the damages be set off against the...