Hawkins v. Spokane Hydraulic Mining Co.

• Citation: 3 Idaho 241,28 P. 433
• Parties: HAWKINS v. SPOKANE HYDRAULIC MINING CO
• Decision Date: 19 December 1891
• Court: Idaho Supreme Court

28 P. 433

3 Idaho 241

HAWKINS v. SPOKANE HYDRAULIC MINING CO

Supreme Court of Idaho

December 19, 1891

PLACER MINING CLAIM-A PARTNER OWNING SEVEN-EIGHTHS OF CLAIM CAN CONTROL THE WORKING-ACCOUNTING MAY BE COMPELLED-PARTY OWNING MAJOR INTEREST IN PLACER CLAIM CAN CONTROL WORKING.-The plaintiff is the owner of a seven-eighths interest in a placer mining claim. The defendant is the owner of one-eighth interest in the same claim. Held, that the plaintiff has the right to control the means used and the method adopted in working said mine, and is entitled to an injunction to restrain said defendant from working said claim, except in the manner directed by plaintiff.

A MAJORITY OR MINORITY INTEREST CAN COMPEL ACCOUNTING.-An accounting may be compelled by either of the parties holding a majority or minority interest in a mine, of work done and metals extracted.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

Reversed and remanded, with direction. Costs of appeal awarded to appellant.

Woods &amp Heyburn, for Appellant.

A partnership in the working of a mining claim exists whenever either directly or indirectly, the owners thereof contribute to the expense of woking it. (Dougherty v. Creary, 30 Cal. 300, 89 Am. Dec. 116.) Any condition of facts which would warrant the dissolution of the partnership authorizes the appointment of a receiver and the granting of an injunction. (High on Injunctions, sec. 1351.)

Charles W. O'Neil and Frank Ganahl, for Respondent.

Mere ownership of a property, as joint tenants or tenants in common, between two or more parties, without other acts done by them in reference to the property, cannot constitute them partners. (Story on Partnership, sec. 82; Crawshay v Maule, 1 Swanst. 518; Dougherty v. Creary, 30 Cal. 300, 89 Am. Dec. 116; Settembre v. Putnam, 30 Cal. 490; Skillman v. Lachman, 23 Cal. 199, 83 Am. Dec. 96, and note; Henderson v. Allen, 23 Cal. 519; Bradbury v. Barnes, 19 Cal. 120.) It is not waste for one tenant in common to work and mine for his own use and benefit in a workmanlike manner. (Irwin v. Covode, 24 Pa. St. 165; Findlay v. Smith, 6 Munf. 142, 8 Am. Dec. 733; Woodward v. Gates, 38 Ga. 213; Drown v. Smith, 52 Me. 143; Crockett v. Crockett, 2 Ohio St. 184; Clemence v. Steere, 1 R. I. 274, 53 Am. Dec. 621.)

MORGAN, J. Sullivan, C. J., and Huston, J., concur.

OPINION

MORGAN, J.

The plaintiff is the owner and possessed of an undivided seven-eighths interest in the Niagara placer mining claim, situated in the Coeur d'Alene mining district, Shoshone county, Idaho. The defendant is the owner of one-eighth interest in the same claim. Defendant, on or about the fifteenth day of June, 1891, took possession of a portion of said claim. Defendant is also the sole owner of a large stream of water, estimated at six hundred and fifty inches, with pipes, flumes, and other hydraulic machinery for conveying said water to and upon said placer ground, as well as other ground of the same character adjacent thereto. The defendant company has worked off a section of said claim during the season of 1891, without the consent and against the protest of the plaintiff. It is also admitted that the defendant is by the means aforesaid extracting the gold from said claim, and converting it to its own use. That the only value of said ground is the gold contained therein, and that said company refuses to sell said water to said plaintiff at any price that can be agreed upon. That the plaintiff, although the owner of an undivided seven-eighths of said ground, is practically excluded from any part or lot in the management of said work; that the defendant company, by its own men, foreman, and superintendent, works said ground to suit itself, without the consent of plaintiff, but invited plaintiff to come in and work with said defendant simply as a worker. It is also admitted that the defendant company has extracted a quantity of gold from said ground, and thereafter Mr. Coulter, superintendent for said defendant, stated to Mr. Whitney, who, he says, is a co-owner with the plaintiff, that he had no objection to said Whitney or the plaintiff coming in, watching, and inspecting the clean-up, seeing what was going on, "but I told him that I did not want him to come into the ground sluices or take any active part in the clean-up." Defendant claims that said company has the right to refuse to sell water to plaintiff, and claims the right to work said ground in its own way, and is doing so, without the permission of plaintiff. Defendant company states that it is willing to account to plaintiff for the gold taken out of said claim, and deliver to him the seven-eighths thereof, whenever the said plaintiff shall pay to said defendant seven-eighths of the expense of extracting said gold. We are furnished with a statement of said expense in the defendant's answer, which is as follows:

Work and labor expended

$ 2,108.96

Use of tools and appliances

50.75

Charge for water

1,510.06

Total

$ 3,669.77

In his affidavit, filed August 3, 1891, said Coulter furnishes the amount of gold extracted, which he says is a partial cleanup which amount is $ 1,978.67. The record here is largely made up of affidavits of a number of witnesses and experts--those on the part of plaintiff, introduced for the purpose of showing that the defendant was wasting and losing gold by reason of the bad and expensive manner of defendant's working; those on the part of the defendant were introduced for the purpose of contradicting those of plaintiff, and to show that defendant was working said placer mine in an economical and careful manner. The court below, after considering said affidavits and the allegations of the parties, dissolved the temporary restraining order, refused to appoint a receiver, and refused the injunction. From said order the said plaintiff takes an appeal to this court. In the view we take of this case, it is not necessary to sum up the evidence presented in said affidavits. The result of the clean-up and the statement of expenses is a sufficient summing up of the whole matter, as it appears that the amount of gold extracted was $ 1,978.67; expenses were $ 3,669.77. How much better showing might be made by a complete clean-up we are not informed, nor is it necessary that we should be. The question for this court to determine is, simply, Does a mining partnership exist in this case, and does the fact that the plaintiff in this suit owns seven-eighths of this mine, and the defendant owns one-eighth thereof, entitle the plaintiff to control and direct the working thereof, and the means to be used in said working?

Section 3300 of the Revised Statutes of Idaho is as follows: "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." It is not necessary that all the co-owners in a...