Rickard v. Thompson

• Decision Date: 29 August 1934
• Docket Number: No. 7303.,7303.
• Citation: 72 F.2d 807
• Parties: RICKARD v. THOMPSON.
• Court: U.S. Court of Appeals — Ninth Circuit

72 F.2d 807 (1934)

RICKARD v. THOMPSON.

No. 7303.

Circuit Court of Appeals, Ninth Circuit.

August 29, 1934.

Chas. E. Taylor, of Fairbanks, Alaska, for appellant.

Louis K. Pratt, of Fairbanks, Alaska, for appellee.

Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.

GARRECHT, Circuit Judge.

This is an appeal from a judgment rendered in the above-named District Court against appellant, who was the plaintiff in the lower court, and in favor of the appellee, Nellie Thompson, who was defendant therein, in an action brought by appellant to quiet title to a certain placer mining claim. The following findings of fact and conclusions of law were made by the District Court:

Findings of Fact.

"I. The Court finds from the evidence seen and heard in this case that, on the 22nd day of August, 1902, one A. W. Howes secured a valid mining title under the laws of the United States to Creek placer mining claim No. 6 above Discovery on Cleary Creek, Fairbanks Precinct, Fourth Judicial Division, Territory of Alaska, being the same mining ground in controversy herein; that thereafter and on the 3rd day of March, 1906 the defendant Jesse Noble, by mesne conveyances from the original locator, the said A. W. Howes, became the lawful owner of the undivided one-half of the lower one-half of the said mining claim; that on the 22nd day of October, 1907, the said Jesse Noble sold and conveyed to his then wife, Nellie Noble, his said interest and title in the said mining claim, to-wit: the undivided one-half of the lower one-half of said claim, and at the time of such conveyance and as a part consideration therefor agreed with her that thereafter and as long as she should own and hold the said interest, he would safeguard and protect the same by doing the assessment work or causing it to be done upon the said mining claim; that at the date of the said conveyance, to-wit, October 22, 1907, the grantee therein was the wife of defendant Jesse Noble and was known and called Nellie Noble, but in the year 1910 she secured a divorce from her then husband Jesse Noble and afterwards and on November 11, 1911, was remarried to W. F. Thompson of Fairbanks, and has since been known and called Nellie Thompson, one of the defendants in this action; that on the 23rd day of April, 1928, the defendant Jesse Noble became the owner by purchase from the Steven Albasini estate of the remaining three-fourths (¾) interest in and to the said mining claim and has ever since held and is now the owner of the said interest; that for each of the assessment periods ending July 1, 1928 and 1929 the assessment work and improvement amounting in value to one hundred dollars as required by the laws of the United States was done and performed upon the said mining claim or caused to be performed by the defendant Jesse Noble, and during each of the assessment periods ending July 1, 1930 and July 1, 1931, work of the value of more than three hundred dollars was done or caused to be done by Jesse Noble off claim number 6 above Cleary Creek and on claims numbers 7 and 8 above on Cleary Creek, which work consisted of cleaning out, repairing and constructing a ditch for the purpose of bringing water to a point where it could be used for mining number 6; that 7 and 8 at the time of doing said assessment work belonged to Jesse Noble and claims numbers 6, 7 and 8 were contiguous claims, and the mining titles of himself and his co-defendant Nellie Thompson were thereby fully safeguarded and protected; that on October 19, 1931, the date upon which the plaintiff Rose Rickard claims that she re-located the said mining claim and secured a mining title thereto, said claim was not open to relocation by her or any other person and her attempted relocation thereof at that time was void and she secured no mining title thereto as against Nellie Thompson or anybody else.

"II. That at the date of the commencement of this action, ever since and now, the title to the said mining claim was and is held and owned in the following proportions: The defendant Jesse Noble was and is the owner of the upper half of said claim number 6 above on Cleary Creek, and the said Jesse Noble and defendant Nellie Thompson each own an undivided half of the lower half of said claim, and the plaintiff Rose Rickard had and has no title thereto of any kind or description."

Finding III which refers to attorney's fees and costs omitted.

Conclusions of Law.

"That as Conclusions of Law the Court finds that the defendant Nellie Thompson is entitled to a decree that at the time of the commencement of this action, ever since and now, she was and is the owner of an undivided one-half (½) interest in the lower half of the mining claim described in paragraph One of the Findings of Fact as above set forth, and that the defendant Jesse Noble was the owner of the upper half of said claim and an undivided one-half interest in the lower half thereof, and that the plaintiff Rose Rickard had no title to the said ground of any kind or nature and that the defendant Nellie Thompson is entitled to a decree quieting her said title to her undivided one-half (½) interest in the lower half of said mining claim as against the plaintiff and also against her co-defendant Jesse Noble, and that both the plaintiff and the defendant Jesse Noble be enjoined from in any wise interfering with her quiet and peaceable possession and use of her said undivided one-half interest in the lower half of said claim, and, further, that defendant Nellie Thompson is entitled to a money...