Manley v. Boone

• Decision Date: 03 February 1908
• Docket Number: 1,343.
• Citation: 159 F. 633
• Parties: MANLEY et al. v. BOONE et al.
• Court: U.S. Court of Appeals — Ninth Circuit

159 F. 633

MANLEY et al. v. BOONE et al.

No. 1,343.

United States Court of Appeals, Ninth Circuit.

February 3, 1908

This action was brought to obtain a decree of partition of certain placer mining ground situated in the Fairbanks mining district of the territory of Alaska known as 'Creek Claims Nos. 4 and 5 Below Discovery on Cleary Creek,' and 'Bench Claims Nos. 4 and 5 Below on the First Bench Right Bank of the Creek'; the bench claims lying north of their companion creek claims, respectively, and the whole forming one contiguous body of mining ground. The appellees were plaintiffs in the court below, and were the owners of an undivided one-eighth each of the properties, and the appellants the owners of an undivided one-fourth each thereof. The complaint in the action alleged the tenancy in common of the properties, and their equipment and operation by the respective parties as mining partners; that the claims are valuable only for the gold contained therein, and that the appellants had assumed exclusive control and management of them, excluding appellees from any voice in the management; and that in the working of the ground the appellants had been guilty of waste, negligence carelessness, and extravagance, the motive of which was to force the appellees to sell to the appellants their interest in the property for an inadequate price. The prayer of the complaint was for a partition of the property, a dissolution of the relationship between the parties, and for an accounting, for $50,000 damages growing out of the alleged wasteful and extravagant manner in which the property had been operated by the appellants, for costs, and for general relief.

In their answer the appellants admitted the tenancy in common and the joint operation of the properties by the respective parties, but denied that in their management of the property they had excluded the appellees, or that in their operation they had been either wasteful, careless, or negligent. As an affirmative answer they set up the character of the property the adoption by common consent of all of the parties in interest of a joint plan of working the ground as a whole, and the installation of a plant for that purpose, and alleged that the ground could not be divided into parts without a loss; that the gold-bearing gravels contained in the claims are found in 'pay streaks,' which vary greatly in width, depth, and richness, do not run in uniform courses through the ground, and that it would be impossible to divide the claims into four or any other number of equal parts even approximately of equal value; that owing to the situation and character of the property, and the manner in which it should be worked, it is not susceptible of actual partition in parts without great prejudice to the owners; and that the only way in which the claims can be partitioned is by the sale of the property as a whole. The appellants at the same time filed a cross-bill setting up substantially the same matters stated in their answer.

While the record contains a large amount of testimony bearing upon the various issues made by the pleadings, the main contest between the parties is whether the property is susceptible of a fair partition in kind, or whether it should be sold as a whole and the proceeds divided in accordance with their respective interests. The court below found that the property can be fairly divided into parts without great prejudice to the owners, and that they would suffer far greater prejudice from a sale of it than by a division thereof into parts; and the court thereupon determined the manner in which the partition should be made, and the locality and boundaries of each allotment, in these findings:

'(5) That the property can be fairly, equally, and impartially divided into parts by giving to the plaintiffs a piece of ground of Creek Claim No. 4 which shall include 73 feet of the lower part of the ground, known as 'worked-out' ground at the upper end of said claim, and 162 feet of the unworked ground immediately adjoining thereto, all to extend the full width of said claim No. 4, as will more particularly appear from the plat on file in this case prepared by R. H. Jackson and C. W. Joint, dated September 5, 1905; the ground in these findings sought to be described being the ground indicated upon said plat by the red lines.

'(6) And by the giving to the plaintiffs that portion of side claim No. 4 which is indicated upon said map and plat by the red lines; all of the property to be awarded to the plaintiffs by this and preceding findings being marked upon said map and place as 'Boone Allotment.'

'(7) By giving to the plaintiffs herein the property at the lower end of Creek Claim No. 5 and of side claim No. 5 which is indicated upon said map and plat by red lines, and which is designated upon said map and plat as 'Boone Allotment.' '(8) That said plat herein referred to is marked at the bottom thereof as follows: 'Map of Four Below Mining Company Property, on Cleary Creek, Fairbanks Mining District, Alaska. Surveyed by R. A. Jackson and C. W. Joint, September 5, 1905. Scale, 80 feet 1 inch'-- and is hereby referred to and made a part of these findings.

'(9) That if the actual measurements upon the ground shall vary from the measurements set forth in said map that the rights of the parties hereto shall be protected by giving to them the same proportion of the ground as the amount allotted upon said map shall bear to the whole.

'(10) That the personal property can be divided, either by a division of kind, or, if that cannot be done, then by selling the same at public auction in the manner prescribed by law for the sale of personal property on execution.

'(11) That the defendants are to have all of the real property described in the complaint other than that which has been assigned and allotted to the plaintiffs herein.'

The decree followed these findings and is as follows:

'Be it remembered that on the . . . day of September, 1905, the above-entitled cause coming on regularly for hearing, N. V. Harlan and McGinn & Sullivan appearing as attorneys for the plaintiffs, and Carr & Nye and W. H. Adams appearing as attorneys for the defendants, and the court heretofore and on the 16th day of September, A.D. 1905, rendered its decision in writing and filed the same with the clerk of the court, and therefore, in accordance with the findings of fact and conclusions of law therein contained, it is ordered, adjudged, and decreed by the court: That the property herein described be partitioned into parts. That the plaintiffs shall receive as their portion of said claims that part indicated upon the map and plat on file in this case, and which is known as 'Map of Four Below Mining Company Property, Made by Jackson & Joint,' and which is referred to in the findings of fact in this case, according to the allotments thereon made; the red lines upon said map being the property that is allotted to the plaintiffs in this action, and the defendants shall be allotted all of the balance of said claims not included within said red lines. That C. W. Joint and R. A. Jackson are hereby appointed referees for the purpose of allotting to the plaintiffs and defendants the respective parts of the property described in the complaint in this action, as the same has been determined by this court according to the map and plat on file herein, and shall designate such portions upon the ground by proper landmarks, and said referees may employ a surveyor, with necessary assistants, to aid them in establishing said landmarks, marking the boundaries of said allotments. That a receiver shall be appointed to take charge of the personal property, and to divide the same in kind if practicable, and, if the same cannot be done, then that the said property shall be sold by him in the manner prescribed by law for the sale of personal property on execution. That if the cabins, dams, sluices,

...