Johnston v. Corson Gold Min Co.

• Decision Date: 04 November 1907
• Docket Number: 1,381.
• Citation: 157 F. 145
• Parties: JOHNSTON v. CORSON GOLD MINING CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

157 F. 145

JOHNSTON v. CORSON GOLD MINING CO. et al.

No. 1,381.

United States Court of Appeals, Ninth Circuit.

November 4, 1907

Appeal from a judgment dismissing an action brought on the equity side of the District Court of the District of Alaska, Second Division. Plaintiff's bill alleges substantially these facts: That prior to and on May 9, 1906, the Universal Mining Company was and is the owner of certain described mining claims in the Nome District of Alaska; that it became owner by a deed of conveyance duly made and delivered to it by the defendant Corson Gold Mining Company, dated January 17, 1906 and filed for record in the proper district on April 24 1906; that title to the said mining claims held by the Corson Gold Mining Company before the delivery of the deed to the Universal Mining Company was a possessory mining title, by force of location theretofore made, and subsequent conveyances to the said Corson Gold Mining Company of an undivided half of each and all the described properties, the said Corson Gold Mining Company having had prior to the delivery of the deed, and the said Universal Mining Company having thence had, the legal title to an undivided half of part of said properties, and the equitable title to a part thereof; that about May 9, 1906, at Manchester, N.H., the defendant Universal Mining Company, on the one side, and the plaintiff Johnston on the other, entered into a lease whereby the Universal Mining Company leased its right and title to the properties involved in this suit to the plaintiff; that the lease recited that the Universal Mining Company owned a half interest in the property, and that the other undivided half belonged to one Gray, the Universal Mining Company expressly recognizing the rights of its co-tenant; that the right of entry in and upon the mining properties for the purpose of prospecting and mining gold was given; that the lease contained the following provision as to possession and terms: 'It is also understood and agreed between the parties hereto that the term of this lease shall be for the period of two years beginning the 1st day of July, 1906; provided, however, that if for any reason said party of the first part shall be unable or shall refuse on said 1st day of July to deliver to the said second party herein possession of said properties, as contemplated in this lease, then, and in that case, such delay in delivery of possession shall not work an abridgment in the term of this lease, but shall operate merely to defer the date of its commencement until such date as possession may be delivered as aforesaid. The said lessor covenants and agrees to use all reasonable endeavor and legal means to put the lessee in possession of the premises above described on said 1st day of July, 1906, or as soon thereafter as possible;' that the lessor also agreed that it would not interfere with possession by the lessee as contemplated by the lease.

Plaintiff alleges that the lease was recorded in Nome on June 21, 1906 and that it has been in force ever since the execution and delivery of the same; that about June 10, 1905, at Manchester, N.H., one E. W. Spurr purported to execute, under the seal of the Corson Gold Mining Company, and as its president, a certain lease between the said Corson Gold Mining Company, defendant herein, and one Judson T. Webster, also a defendant herein; that this lease was for the same properties involved in this action; that Spurr had no authority to execute or deliver such a lease; that Webster, the lessee named therein, refused to accept the lease as drawn, signed by Spurr, or to act in accordance with the terms thereof; that between the time Webster received the lease in June, 1905, and March 16, 1906, Webster, without the consent or knowledge of the Corson Gold Mining Company, made material alterations in the lease; that Webster affixed his signature to the duplicates of the purported lease; that between September 25 and December 15, 1905, Webster sent one of the duplicates of the said purported lease, so altered by him, to an agent of his in Nome, together with a sublease from himself (Webster) to Thomas M. Gibson, a defendant herein; that the sublease covered the mining claims involved herein, together with certain other properties, and included an assignment from Webster to the said Gibson of the purported lease to the said Webster of the properties embraced in the sublease; that about December 8, 1905, Webster sent back one of the duplicate copies of the said purported lease, so altered and signed by him, to the attorney of the Corson Gold Mining Company at Manchester, with the request that the company consent to and ratify the alterations made by him in the purported lease, saying that he could not accept the said lease unless said changes therein were made, but that on December 12th the stockholders of the Corson Company considered the changes and the request of Webster, repudiated the transactions had by Spurr with Webster, and withdrew all offers of a lease to him, and notified Webster about December 13, 1905; that notwithstanding these things, Webster at some time between September 25, 1905, and March 16, 1906, delivered to the said defendant Gibson the duplicate of the said pretended lease, and the sublease and assignment, and Gibson put the same on record on March 16, 1906; and that all these things were done without the consent or knowledge of the that all these things were done without the consent or knowledge of the Corson Gold Mining Company, or its officers or successors; that the defendant Gibson and the defendants Waskey and Harding, claiming an interest with Gibson, by force of transfer by him under the said purported lease, and the said sublease, entered upon the mining properties involved, in May, 1906, claiming the right to do so by virtue of the said unauthorized and fraudulent lease, and the said sublease and assignment, and began working upon the claims, and were working upon them when this action was brought, and had taken from them large quantities of gold. Plaintiff alleges that since July 1, 1906, when the terms of his said lease began, he has tried to enter peaceably upon the properties embraced in his lease, and has demanded possession thereof from Gibson, Waskey, and Harding, who were occupying and working the same, but that they refused to surrender possession, or to permit him to enter for the purposes of his said lease, or for any purpose; that the co-tenant Gray is not in possession exclusively or adversely to plaintiff or to plaintiff's lessor, nor is he mining the properties, and he does not oppose entry and mining by plaintiff; that defendants Gibson, Waskey, and Harding are accountable for all gold taken from the mining claims since July 1, 1906, or that may be taken therefrom by them hereafter, prior to the termination of plaintiff's lease, but plaintiff, not having access, cannot ascertain the true amount of gold that has been taken; and that the defendants last named have no right of claim or possession to the said mining properties other than the void and pretended lease. It is then alleged that the defendant Willey, prior to the making of the lease to the plaintiff Johnston by the defendant Universal Mining Company, was the controlling stockholder of said corporation, and alone conducted on its part the negotiations which resulted in the making of the lease to plaintiff, and assented to the same, but that at the time of the commencement of this suit he was publicly stating that plaintiff's lease was of no validity, and that, by dealings between himself, as president of the Universal Mining Company, and himself individually, he has obtained a deed of conveyance from the company to himself individually of all of the mining claims embraced in the lease to this plaintiff Johnston, and that this deed was made without authorization by the stockholders or directors, and that if it is put on record, it will operate to cloud and embarrass plaintiff's title to his leasehold interest in the said mining property; that since July 1, 1906, when the term of the plaintiff's lease began, plaintiff has demanded of Willey, as president of the corporation, that the company and Willey, as president, put him in peaceable possession of the mining properties, in fulfillment of the covenants of the lease; but that Willey has failed to take any steps to that end, but is combining with the defendants Gibson, Waskey, and Harding to leave them in the possession and enjoyment of the properties under the alleged void lease to the defendant Webster; that the record of the void lease to Webster, and Webster's sublease and assignment to Gibson, constitute a cloud upon plaintiff's title to his leasehold interest; that the defendants are not responsible financially for the value of the gold taken or to be taken; that the occupation by Gibson, Waskey, and Harding, and the taking of gold from the claims, and the exclusion of plaintiff therefrom, constitute great and irreparable injury, for which plaintiff has no adequate remedy at law; that plaintiff at great expense prepared to mine the claims from and after July 1, 1906; that the open working season is a brief one; and if the defendants shall be left in possession the claims may be wholly worked out before final decree can be obtained; and that plaintiff will be put to great additional expense unless he can enter upon and operate the claims under his lease. Plaintiff asks for a decree in his favor, adjudging that the Universal Mining Company, when it made and delivered its lease to plaintiff, was the owner of the legal possessory title to the properties described in the lease; and that on July 1, 1906, he became lawfully entitled to the possession of the properties in co-tenancy with Gray; and that the...