Madar v. Norman

• Decision Date: 15 November 1907
• Citation: 92 P. 572,13 Idaho 585
• Parties: JOHN MADAR, Appellant, v. SAMUEL NORMAN and O. E. ANDERSON, Respondents
• Court: Idaho Supreme Court

92 P. 572

13 Idaho 585

JOHN MADAR, Appellant, v. SAMUEL NORMAN and O. E. ANDERSON, Respondents

Supreme Court of Idaho

November 15, 1907

MINING PARTNERSHIP-WHEN MINING PARTNERSHIP EXISTS.

1. In order to constitute a mining partnership under the provisions of sections 3300 to 3309, inclusive, of the Revised Statutes it is essential that the co-owners actually engage in working the mine or in the business of operating the mine. The cotenancy of two or more persons in a mining claim is not of itself sufficient to constitute such tenants mining partners.

2. It is not essential that all the tenants join in the working or business of mining in order to establish such partnership but that relation may be established among such co-owners as have actually engaged in the working or mining operation. Those not so engaging will be left to their right and be chargeable by their duties as cotenants only.

(Syllabus by the court.)

APPEAL from the District Court of First Judicial District for Shoshone County. Hon. Ralph T. Morgan, Judge.

Action by a co-owner in a mining claim against other co-owners to collect a share of the expenses incurred in working the mine proportionate to the interest owned by each, and to have the same declared a lien upon the mine. Demurrer to the complaint was sustained, and on refusal to amend, judgment of dismissal was thereupon entered. Plaintiff appealed. Affirmed.

Judgment affirmed and costs awarded to respondents.

Henry P. Knight, for Appellant.

It is indispensable to the conducting of the business of mining that those owning a major portion of the property should have control in case all cannot agree. (Hawkins v. Spokane Hydraulic Min. Co., 3 Idaho 656, 33 P. 40; Daugherty v Creary, 30 Cal. 300, 89 Am. Dec. 116.)

In order for a cotenant or his successors in interest to become a mining partner, it is not necessary that he shall assist in working the mine or in the management of its affairs, or that he should in any way hold himself out as a partner, or consent to the operations being carried on at the mine. ( Taylor v. Castle, 42 Cal. 367; Hawkins v. Spokane Hydraulic Min. Co., supra.)

In the case last above cited, this court pursued still further the analogy between a mining partnership and a private corporation.

By purchasing an interest, the respondent, Norman, became a mining partner. (Kahn v. Central Smelting Co., 102 U.S. 641, 26 L.Ed. 266; Kimberly v. Arms, 129 U.S. 512, 32 L.Ed. 764, 9 S.Ct. 355; Bissell v. Foss, 114 U.S. 252, 29 L. ed, 126, 5 S.Ct. 851.)

A. G. Kerns, for Respondents.

There is no allegation in the complaint that these parties or their predecessors in interest ever actually engaged in working this mining claim. (Rev. Stats., sec. 3300.) "Evidence of the existence of the mining partnership must be clear and certain." (Mayhew v. Burke, 2 Idaho 1056, 29 P. 106.)

One owner in a mining claim has no lawful authority to sue his co-owner for a specific sum or share of any work or labor performed on the mining claim, unless the co-owner actually joined or engaged in working the same, or expressly or impliedly promised to pay. If this is not the law, any owner in a mining claim can take or destroy the interests of his co-owner in the property without the consent of such co-owner.

Parties may be tenants in common of a mining property without constituting a mining partnership. The partnership is constituted when, as such tenants in common or co-owners, they unite and co-operate in operating or working the mine. ( Nolan v. Lovelock, 1 Mont. 224; Congdon v. Olds, 18 Mont. 487, 46 P. 261; Skillman v. Lachman, 23 Cal. 199, 83 Am. Dec. 96; Charles v. Eshleman, 5 Colo. 107; Prince v. Lamb, 128 Cal. 120, 60 P. 689; Lyman v. Schwartz, 13 Colo. App. 318, 57 P. 735; Manville v. Parks, 7 Colo. 128, 2 P. 212; Hartney v. Goshing, 10 Wyo. 346, 98 Am. St. Rep. 1005, 68 P. 1118.)

"A joint owner who works a mine cannot maintain an action against his co-owners for their share of the expense of so doing in the absence of an express or implied contract on their part to pay." (Barringer & Adams on Mines and Mining, p. 744.)

AILSHIE, C. J. Sullivan and Stewart, JJ., concur.

OPINION

AILSHIE, C. J.

In this case the trial court sustained a demurrer to the complaint and on plaintiff's refusal to amend entered judgment of dismissal against him. This appeal is from the judgment. The only question to be determined on this appeal is whether or not under the provisions of sections 3300 to 3309, Revised Statutes, all the co-owners in a mine are mining partners by virtue and reason of their ownership, or whether it is necessary for them to unite in actually working the mine in order to become such partners. If the ownership alone is all that is essential to the creation of a mining partnership, the complaint in this case is sufficient; if not, the demurrer was properly sustained. Section 3300 provides that "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." In Hawkins v. Spokane Hydraulic Min. Co., 3 Idaho 241, 28 P. 433, some things were said by the court that indicate the view "that the co-owners in a mining claim are partners" by reason of their ownership, irrespective of the fact of their working the mine. This expression, however, must be read and viewed in the light of the facts of that case and the conditions under which it was presented. The case was tried by both plaintiff and defendant on the theory that a mining partnership existed between them, and they differed as to the legal results that flow from that relation. The defendant's contention was that the plaintiff should share with it a large sum of expenses that had been incurred in the operation. The condition of the case is more fully illustrated by the opinion (Hawkins v. Spokane Hydraulic Min. Co., 3 Idaho 650, 33 P. 40) on the appeal from the final judgment. The confusion has evidently arisen in some of the cases under a statute like ours in the indiscriminate use of the words "owners" and "partners." Section 3300, supra, seems to require that in order to form a mining partnership, two or more persons must first "acquire a mining claim," and that this acquisition must be followed by actually engaging in working the mine. If A, B, C, and D own each a one-fourth interest in a mining claim, A, B, and C may unite in working the property and would undoubtedly thereby become mining partners under the provisions of this statute, but their doing so would not make D a partner, if he should decline to join them, and refused to participate in the working. If, after the formation of such a partnership any disagreement...