Sweeney v. Hanley

• Decision Date: 09 November 1903
• Docket Number: 933,848,934.
• Citation: 126 F. 97
• Parties: SWEENEY et al. v. HANLEY. HANLEY v. SWEENEY et al. EMPIRE STATE-- IDAHO MINING & DEVELOPING CO. v. HANLEY.
• Court: U.S. Court of Appeals — Ninth Circuit

126 F. 97

SWEENEY et al. v. HANLEY.

HANLEY v. SWEENEY et al.

EMPIRE STATE-- IDAHO MINING & DEVELOPING CO. v. HANLEY.

Nos. 848, 933, 934.

United States Court of Appeals, Ninth Circuit.

November 9, 1903

No 848.

W. B Heyburn, for appellants. No. 933.

W. B Heyburn and F. T. Post, for appellants.

John R McBride and M. A. Folsom, for appellee. No. 934.

John R. McBride and M. A. Folsom, for appellant.

W. B. Heyburn and F. T. Post, for appellees.

Before GILBERT, ROSS, and MORROW, Circuit Judges. Motion for injunction: Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

In the case of Hanley v. Sweeney et al, 109 F. 712, 48 C.C.A. 612, it was here adjudged, among other things, that the deed from Hanley to Sweeney and Clark, the predecessors in interest of the Empire State-Idaho Mining & Developing Company, for his undivided one-eighth interest in the Skookum mine, was never in fact delivered, but was gotten possession of by Clark and Sweeney without consideration, and in fraud of Hanley's rights, and that it was accordingly void and of no effect. After the cause was returned to the court below for further proceedings not inconsistent with the opinion of this court, the defendants in the suit, who were engaged in extracting ore from beneath the claim in question and appropriating same to their own use, in hostility to any and all claim thereto on the part of Hanley, subsequently continued to do so under the claim that the ore so found beneath the surface of the Skookum claim was a part of a vein having its apex in the San Carlos mining claim that belonged to them, and that it constituted no part of the Skookum mine. The court thereupon, on the application of Hanley, stopped them from so doing by its writ of injunction, to continue until the further order of the court, and committed to a master the taking of an accounting of the antecedent working of the ground by the defendants in the suit. Thereupon the latter brought the appeal numbered 848 from the order granting that injunction.

The circumstances of the case were such as, in our judgment, rendered proper the granting of the temporary injunction. The order appealed from in the case numbered 848 is accordingly affirmed, with costs.

After the taking of the accounting above mentioned, and after a hearing of the objections made thereto by the respective parties, the court below rendered the following final decree in the cause;

'This cause came on to be further heard at this term, and was argued by counsel; and thereupon, upon consideration thereof, and in pursuance of the mandate of the United States Circuit Court of Appeals in this cause, it was ordered, adjudged, and decreed as follows: 'First. That the conveyance made by Kennedy J. Hanley to Charles Sweeney and F. Lewis Clark on April 30, 1898, of a one-eighth interest in the Skookum patented mine and mining claim and the ore therein contained, which said mine is situated in Yreka Mining District, Shoshone county Idaho, is hereby canceled, set aside, and declared to be null and void from its date.

'Second. That the defendants, Charles Sweeney, F. Lewis Clark, and the Empire State-Idaho Mining & Developing Company have, and each of them has, no interest or estate whatever in or to an undivided one-eighth interest in and to the said Skookum mine and mining claim and the ores therein contained. That the complainant, Kennedy J. Hanley, since April 30, 1898, has been and now is the owner of an undivided one-eighth interest in and to said Skookum mine and mining claim and the ores therein contained, and said interest is hereby quieted in him.

'Third. That complainant, Kennedy J. Hanley, have and recover from defendant Empire State-Idaho Mining and Development Company the sum of one hundred seventy-five thousand eight hundred sixty-seven and two-hundredths dollars ($175,867.02), comprising the following items: Thirty-eight thousand five hundred and seventy-seven and forty-one hundredths dollars ($38,577.41), being one-eighth of the proceeds (less freight and treatment and rebate) of said ores taken from the Skookum by defendants between May 15, 1898, and March 18, 1899. (2) One hundred twenty-three thousand six hundred seventy-five and thirty-four hundredths dollars ($123,675.34), being one-eighth of the net proceeds, after deducting freight, treatment, mining, hoisting, milling, and working expenses, all of said ores taken from said Skookum mine between March 15, 1899, and February 15, 1902. (3) Seven thousand nine hundred ninety-three and twenty-seven hundredths ($7,993.27), being interest on the amounts mentioned in subdivisions one and two, to wit, one hundred and sixty-two thousand two hundred and fifty-two and 74/100 dollars ($162,252.74) from February 15, 1902, until the date of this decree. (4) Five thousand six hundred and twenty-one dollars, being one-eighth of the net proceeds, after deducting freight and treatment, mining, milling, hoisting, and working expenses, including charge for use of improvements, all of said ores taken from said Skookum mine between February 15, 1902, and May 18, 1902.

'It is further ordered and decreed that interest shall be allowed on the amount of this decree from date of entry at the rate of seven (7) per cent per annum, and that complainant have and recover his costs, including amount paid the master.

'It is further ordered that the First National Bank of Wallace, Idaho, pay to Kennedy J. Hanley all moneys (amounting to $5,523.42) deposited in said bank to the credit of this court in this cause, pursuant to the order of the court made February 11, 1902, and when paid said amount shall be a credit upon the judgment as aforesaid.

'Dated this 17th day of November, 1902. Jas. H. Beatty, Judge.'

It will be noticed that by this final decree the injunction theretofore granted was not continued in force. Upon the entry of the final decree the temporary injunction came to an end. Gardner v. Gardner, 87 N.Y. 14; Eureka Con. Min. Co. v. Richmond Min. Co., 5 Sawy. 121, Fed. Cas. No. 4,549; Ency. of Plead. & Prac. vol 10, 1029; Buffington v. Harvey, 95 U.S. 99, 24 L.Ed. 381.

A motion was subsequently made on behalf of the defendants to the suit for an order dissolving the preliminary injunction, which motion the court below denied. Whether or not it was the real reason for that action of the court, it is a sufficient reason therefor that no such injunction was then in force, it having come to an end by the entry of the final decree in the cause making no provision for any injunction. From that final decree both parties appealed to this court, which cross-appeals are presently to be considered and disposed of.

The final decree established in Hanley an undivided one-eighth interest in the mine and mining claim in controversy; the Empire State-Idaho Mining & Developing Company, as the successor in interest of Sweeney and Clark, owning the majority thereof, and with no injunction against its working the property. Some time after the entry of the final decree mentioned, to wit, in the month of March, 1903, that company again commenced mining under the surface of the Skookum claim, having taken the advice of its counsel to the effect that it had that right, and, under like advice, set apart and deposited in bank one-eighth of the net proceeds thereof for the protection of Hanley as well as itself. That course has been since pursued, until now and here this court is asked, without any showing of any fraud in the mining operations of the company, or any unminerlike working of the ground, to enjoin the company from mining further, and thus tie the property up.

We are of the opinion that under the provisions of the statute of Idaho as construed by the Supreme Court of that state, which construction is binding upon the federal courts in respect to property situated in that state, as is that here involved, the owner of the majority interest in such property is entitled to mine and control its operations, in the absence of any showing or fraud or wrongdoing-- accounting, of course, to the owner for his proportion of the net proceeds. Hawkins v. Spokane Hydraulic M. Co. (Idaho) 28 P. 433; Id. 33 P. 40.

The application here made for an injunction, is therefore denied, with costs to the defendants.

The appeal of the Empire State-Idaho Mining & Developing Company from the final decree above mentioned is mainly based upon the claim that the ore found under the surface of the Skookum mining claim, and which has been and is being mined by it, is a part of a vein having its apex within the San Carlos mining claim owned by the company, and constitutes no part of the Skookum mine or mining claim; and on the accounting above mentioned, and again before the trial court when that accounting was brought before it, it sought to show that such was the fact. But the court below, as did the master, held, and properly held, that that matter was foreclosed by the prior decisions of this court in the cause. The learned counsel for the Empire State-Idaho Mining & Developing Company again seek to raise the point that under the pleadings in the original action of Hanley v. Sweeney, supra, no such question could have been adjudicated, but in reply to the same suggestion made in the mandamus case of Hanley v. Beatty, District Judge, 117 F. 59, 54 C.C.A. 445, this court said:

'Section 4538 of the Revised Statutes of Idaho provides that 'an action may be brought by any person against another who claims an estate or interest in real property adverse to him for the purpose of determining such adverse claim.' Under this statute the Circuit Court had jurisdiction, upon the pleadings, to determine the entire controversy

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