McDaniel v. Moore

• Decision Date: 10 December 1910
• Parties: S. C. McDANIEL et al., Appellants, v. A. W. MOORE, Respondent
• Court: Idaho Supreme Court

112 P. 317

19 Idaho 43

S. C. McDANIEL et al., Appellants, v. A. W. MOORE, Respondent

Supreme Court of Idaho

December 10, 1910

MINING CLAIM-ASSESSMENT WORK-FORFEITURE-CO-OWNERS-APPLICATION FOR PATENT-IMPLIED PROMISE-NONSUIT.

(Syllabus by the court.)

1. Under the provisions of sec. 2324, Rev. Stats. of the United States, where a co-owner of a mining claim fails to do his assessment work or fails to contribute his proportion of the expenditure required in doing such work, his co-owners who have performed the labor may give such delinquent personal notice in writing or by publication, as provided in said statute, and if at the expiration of ninety days such delinquent should fail or refuse to contribute his proportion of such expenditure, his interest in the claim shall be- come the property of his co-owners who made such expenditures, and the defaulting co-owner is not personally responsible for any part of the assessment work, under the provisions of said section.

2. There is no implied contractual relation between cotenants and tenants in common, and one cotenant cannot bind the other without his consent for the expenses incurred in developing or improving their common mining property; but the delinquent cotenant may ratify such expenditure and thereby become liable for his proportional part thereof.

3. The issues made by the pleadings were whether the defendant had performed or paid his part of the assessment work on said mining claim, and whether a patent was issued to all of the parties to this suit for said mining claim by the government and this appeal must be decided upon the theory of the case made by the pleading and proof. Held, that the evidence shows or tends to show that the defendant failed to pay for his proportional part of the assessment work, at least for the years 1904 and 1905, and for his proportional part of the expense of procuring a patent, and the presumption arising from the issuance of a patent is that all of the requirements of the law in regard to its issuance have been complied with.

4. Held, that the evidence tends to establish that there was an implied promise on the part of the defendant to pay his proportionate part of said expenses.

5. On application for a nonsuit, the defendant is deemed to admit all of the facts which the evidence tends to prove.

APPEAL from the District Court of the Second Judicial District, for Idaho County. Hon. Edgar C. Steele, Judge.

Action to recover for assessment work done on a mining claim and for expenses in procuring a patent therefor. Non-suit and judgment of dismissal. Reversed.

Reversed and remanded. Costs awarded to the appellants.

L Vineyard, for Appellants.

On a motion of nonsuit, "the court has no right to pass upon the weight of evidence; every fact that plaintiff's evidence proved or tended to prove must be taken by the court to be proved. It must be taken in the strongest light as against the defendant." (Purnell v. Raleigh R Co., 122 N.C. 832, 29 S.E. 953; Hayne, New Trial, sec. 117.)

If plaintiff's evidence tended to establish the facts he contended for, it then became an issue of fact for the jury and not a question for the court, and the motion should have been denied. (Hayne, New Trial, sec. 117, and authorities cited.)

"Where one advances money to several persons in furtherance of an engagement they represent themselves to be jointly interested in, they may be sued jointly, notwithstanding one of them asserts that he was not in fact interested." (27 Cyc. 876, 877; Goodnow v. Stryker, 61 Iowa 261, 16 N.W. 487.)

Whenever a patent to a claim is issued to the patentees, it carries with it the presumption (in every case where the patent is introduced in evidence) that every prerequisite required by law to its issuance was complied with. It is not only prima facie evidence, but is primary evidence. The introduction of the patent proves this fact. (Polk's Lessee v. Wendal, 9 Cranch (U.S.), 97, 3 L.Ed. 669; Summers v. Dickinson, 9 Cal. 554; Yount v. Howell, 14 Cal. 465; Durfee v. Plaisted, 38 Cal. 80; Upham v. Hosking, 62 Cal. 250; 1 Snyder on Mines, sec. 742.)

"If a party assumes to act (not for himself) for another without any authority, or the act exceeds the delegated authority, the subsequent ratification of the principal is obligatory upon him, whether the act be for his detriment or advantage." (Taylor v. Robinson, 14 Cal. 401.)

W. H. Casady, for Respondent, files no brief.

SULLIVAN, C. J. Ailshie, J., concurs.

OPINION

SULLIVAN, C. J.

This action was brought to recover $ 215.55, with interest thereon at the rate of 7%--one-third of the total cost and expense of doing assessment work upon the Tennessee Lode Mining Claim situated in Robbins Mining District in Idaho county, and of procuring a patent from the United States for said mining claim.

The answer admits that the defendant is the owner of an undivided one-third interest in said lode mining claim, and denies that the plaintiffs laid out or expended for assessment work on said mining claim any sum whatever; denies that defendant ever authorized plaintiffs to procure a patent from the government for said mining claim, and avers that defendant performed his proportion of the annual assessment work upon said mining claim for the three years mentioned in said complaint.

Upon the issues thus made the cause was tried by the court with a jury. Plaintiff McDonald testified on behalf of appellants that the respondent Moore owned one-third of said mining claim; that he and Wadham, as co-plaintiffs, expended on said claim for the years 1903, 1904 and 1905, one hundred dollars for each year; that they thereafter procured a patent from the government and that the cost of said patent amounting to $ 345.65 was paid by himself and co-plaintiff; that the defendant Moore had refused to pay any part of said expenses and refused to have anything to do with the patent proceedings, stating that "he didn't care to; that there was not $ 500 worth of work done on said claim."

The deposition of plaintiff Wadham was introduced on the trial in which he testified that said mining claim had been patented and was patented at the expense of McDaniel and himself; that witness had paid $ 248.90 for patent expenses; that the defendant Moore never contributed or paid any part of this money for the patent. On cross-examination he testified that defendant Moore never agreed nor consented to the procurement of the United States patent for said mining claim and did not...