Stevens v. Grand Central Mining Co.

• Decision Date: 13 October 1904
• Docket Number: 1,827.
• Citation: 133 F. 28
• Parties: STEVENS et al. v. GRAND CENTRAL MIN. CO. et. al.
• Court: U.S. Court of Appeals — Eighth Circuit

133 F. 28

STEVENS et al. v. GRAND CENTRAL MIN. CO. et. al.

No. 1,827.

United States Court of Appeals, Eighth Circuit.

October 13, 1904

This was a suit in equity to enforce a constructive trust in favor of the appellants in a mining claim patented by the United States to Henry Kohl and Charles H. Blanchard, two of the appellees. The suit was commenced March 11, 1901, and the case made by the material allegations of the amended bill is substantially as follows:

Subject to the paramount title of the United States, one Timothy Kelly and the defendant Kohl were the joint and equal owners entitled to the possession and in actual possession, of four mining claims in the Tintic mining district, Juab county Utah. May 23, 1889, while this situation continued, the defendants, Kohl and Blanchard, for their own benefit, and for the purpose of excluding Kelly from any interest in these claims, amended the location notice of one of them, and restaked it upon the ground in such manner as to embrace therein portions of each of the four claims. They then caused the amended claim to be surveyed, made application October 1 1889, at the United States land office, for the issuance to them of a patent therefor, and obtained a patent January 9 1892. They fraudulently concealed the amended location, survey, and application for patent from Timothy Kelly until about January 23, 1891, when he evidently learned of these proceedings, although it is not expressly so stated, and, with others not named, commenced a suit in one of the territorial courts of Utah against Kohl and Blanchard to establish his interest in the amended claim. February 27, 1893, during the pendency of that suit, Timothy Kelly died. Thereafter, without his estate being in any manner represented, a dismissal of the suit was procured by Kohl and Blanchard, without a trial or determination of its merits. July 12, 1895, Daniel Kelly became administrator of the estate of Timothy Kelly, and in 1901 the estate was finally settled, and the administrator was discharged. October 1, 1899, the administrator, with others, commenced a suit in the district court of Juab county against the present defendants to recover the interest in the property held by Timothy Kelly in his lifetime, and to recover for ores extracted therefrom; but the suit was dismissed, without prejudice to a new one, about June 30, 1900. Up to the time of his death Timothy Kelly remained in the actual possession of said claims, working and developing the same, and doing upon each the annual work required by the laws of the United States and the rules and regulations of the mining district. Daniel Kelly, immediately after his appointment as administrator, went into possession of the claims on behalf of the estate of Timothy Kelly, and continued in such possession, working and developing the claims, until November 1, 1900, when the interest owned by Timothy Kelly in his lifetime was conveyed to the complainants, who are now the owners thereof, and of all rights of action for ores extracted therefrom. The mining company acquired an interest in the patented claim from Kohl and Blanchard, with full knowledge of the rights of the complainants and their predecessors in interest; and, since the issuance of the patent, large quantities of valuable ores have been extracted from the claim by the defendants, for which they refuse to account. The complainants offer to pay their proportionate share of the moneys expended in procuring the patent, and pray that the defendants be declared trustees for the complainants in respect to the title to an undivided one-half of the patented claim, and be required to convey the same to the complainants, and to pay them for their share of the ores extracted.

The defendants severally demurred to the amended bill, assigning as cause that the bill made no case for equitable relief, and that the suit was barred by the statute of limitations of the state and by inexcusable laches. The demurrers were sustained, and this appeal is prosecuted from a decree dismissing the bill.

Harrison O. Shepard (Richard B. Shepard, on the brief), for appellants.

W. H. Dickson (A. C. Ellis and A. C. Ellis, Jr., on the brief), for appellees.

Before SANBORN, VAN DEVANTER, and HOOK, Circuit judges.

VAN DEVANTER, Circuit Judge, after stating the case as above, .

The general rule that co=tenants stand in a relation to one another of mutual trust and confidence, that one will not be permitted to act in hostility to the others in respect to the joint estate, and that a distinct title acquired by one will inure to the benefit of all, applies with full force to the joint owners of a mining claim. A co-owner who amends the location notice, relocates the claim, or procures the issuance of a patent in his name, will not be permitted to thus exclude the other owners and appropriate the claim to himself, but will be declared to hold the right or title thereby acquired in trust for all. Lindley on Mines (2d Ed.) Secs. 331, 398, 406, 728, 788; Turner v. Sawyer, 150 U.S. 578, 586, 14 Sup.Ct. 192, 37 L.Ed. 1189; Franklin Mining Co. v. O'Brien, 22 Colo. 129, 43 P. 1016, 55 Am.St.Rep. 118; Hallack v. Traber, 23 Colo. 14, 46 P. 110; Mills v. Hart, 24 Colo. 505, 52 P. 680, 65 Am.St.Rep. 241; Van Wagenen v. Carpenter, 27 Colo 444, 61 P. 698; Brundy v. Mayfield, 15 Mont. 201, 38 P. 1067; Suessenbach v. Bank, 5 Dak. 477, 41 N.W. 662; McCarthy v. Speed, 11 S.D. 362, 77 N.W. 590, s.c. 12 S.D. 7, 80 N.W. 135, 50 L.R.A. 184; Gore v. McBrayer, 18 Cal. 582; Morton v. Solambo Copper Mining Co., 26 Cal. 527; Hunt v. Patchin (C.C.) 35 F. 816; Royston v. Miller (C.C.) 76 F. 50; John C. Teller, 26 Land Dec.Dep.Int. 484; Samuel H. Auerbach, 29 Land Dec.Dep.Int. 208. Nor will the trust be avoided or its enforcement be defeated merely because a stranger to the original claim participates with the unfaithful co-owner in the proceedings to wrongfully exclude his companions in interest, and jointly with him acquires the title to which they are entitled.

It is urged that the present suit cannot be maintained because the complainants' predecessor in interest, Timothy Kelly, did not adverse the application of Kohl and Blanchard for a patent to the amended claim. The point is not well taken. In prescribing the manner of obtaining the government title to a mining claim, the statute directs that notice of the application be published and posted for the period of 60 days, and declares:

'If no adverse claim shall have been filed with the register and the receiver of the proper land-office at the expiration of the sixty days or publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter. ' Rev. St. Sec. 2325 (U.S. Comp. St. 1091, p. 1429).

The statute has reference to an adverse claim arising from independent and conflicting locations of the same ground, and not to a controversy between co-owners or others claiming under the same location. Lindley on Mines (2d Ed.) Sec. 728; Turner v. Sawyer, 150 U.S. 578, 587, 14 Sup.Ct. 192 37 L.Ed. 1189; Doherty v. Morris, 11 Col. 12, 16 P. 911; Malaby v. Rice, 15 Colo.App. 364, 368, 62 P. 228; Brundy v. Mayfield, 15 Mont. 201, 38 P. 1067; Suessenbach v. Bank, 5 Dak. 477, 501, 41 N.W. 662; McCarthy v. Speed, 12 S.D. 7, 80 N.W. 135, 50 L.R.A. 184; Hunt v. Patchin (C.C.) 35 F. 816, 820; Thomas v. Elling, 25 Land Dec.Dep.Int. 495, s.c. 26 Land Dec.Dept.Int. 220; Coleman v. Homestake Min. Co., 30 Land Dec.Dep.Int. 364. The purpose of the present suit is not to defeat the amended claim, or to establish a superior right under an independent and conflicting location, but to establish and enforce a trust in the amended claim...