McDonald v. McDonald

144 P. 950, 16 Ariz. 103, 1914 Ariz. LEXIS 104

Opinion

CUNNINGHAM, J.

The complaint of appellants sets forth two grounds or causes of action upon which their right to recover is based: First. Upon the grounds that the annual assessment work for the year 1911 was commenced upon the Golden Eagle group during that year by J. T. McDonald, as the agent or representative of plaintiffs, and for and in behalf of the said estate, and that such work was directly resumed after an interruption on January 16,1912, and thereafter completed prior to the completion of the relocations of defendants. The relocations of defendants were initiated during the said period of interruption of such work. Second. Upon the grounds that the relocations, while actually initiated before the plaintiffs resumed the performance of the annual work, cannot be effective against the rights of the plaintiffs in any event, for two reasons: First. Because such relocations were initiated through a wrong and trespass committed by the reloeators, in that the relocators wrongfully entered upon the rightful possession of plaintiffs before the expiration of the assessment year 1911, and thereby caused the performance of the annual work of plaintiffs to be suspended, and the relocators continued their said trespassing during the remainder of said year, and, upon the expiration of that year, in the said manner they initiated their relocations. Second. Because plaintiffs commenced the performance of the annual work for the year 1911 through J., T. McDonald as their agent and representative for that purpose in the year 1911, and on December 28, 1911, they expressly contracted with McDonald to finish and complete the performance of the annual work for that year by continuing the work after the 1st day of January, 1912, until the full amount of said annual work was completed. That their said agent and representative, J. T. McDonald, conspired with the other defendants, and, in pursuance to such conspiracy, suspended the performance of such work on December 30, 1911, and, after the expiration of the year 1911, he aided and assisted the other defendants to relocate a part of the claims in their names, and relocated a part of the Claims in his name, and for that reason defendants are estopped from claiming any rights, by reason of their said relocations. And they for that reason hold such legal title as they acquired thereby in trust for the benefit of plaintiffs. Both causes of action are denied, and the defendants plead their relocations as valid relocations of abandoned property, and ask for affirmative relief.

The evidence produced fails to support the said first alleged grounds for recovery. Without conflict, the evidence tends to* show that all the work done on the Golden Eagle group during the year 1911 was done and work ceased on December 30, 1911; that such work was done by J. T. McDonald for his own personal benefit, and not primarily for the benefit of the estate. The purpose McDonald had for causing the work to be done was to protect the title to the mines for the estate so that he could negotiate a sale, and out of the proceeds of such sale he could recover a large claim due him from the estate. The estate had no money with which to pay his claim, nor with which to pay for the annual work. If he did not protect the estate’s. title in the mines, and they were lost by relocation, all hopes, of collecting his claim from the estate were gone. He had. caused the annual work to be done for his brother for the year-1909; that is, he had caused some work to be done on the mines for that year, but not a full assessment. The expense thereby incurred amounted to $174.25. His brother, through plaintiff Arthur J. McDonald, sent to him $100 in money t» pay for that work. Defendant paid the balance with money of his own and a duebill for $62. J. S. McDonald died during the year 1909. Defendant was thereafter given a power of attorney by the representatives of the estate, the plaintiffs, which upon its face authorized him to sell the mines. While he held this instrument during the year 1910, he caused $150’ worth of -work to be done on six of the claims. This work was. done by Posey while he held an option to purchase the property. Posey acquired the option through J. T. McDonald, as attorney in fact for the estate. Defendant McDonald also caused $142 additional work to be done on the mines during the year 1910. The estate furnished him $300 cash to be applied to the assessment work that year. The claim of the estate included a group of five locations, the Golden Eagle group, and one claim detached from the group known as the Lubec claim. On the last-named claim work was done for the year 1910 by Posey taking samples.

In November, 1910, defendant’s power of attorney was revoked. In September, 1911, defendant wrote to plaintiffs concerning the annual work on the mines for 1911, and requesting money with which to perform such work. He received no reply to his request. He was then residing in Mexico. In order to protect the title, he put one man to work on the mines in October, and went to Chicago seeking a settlement of his claim from the estate. Then it was that he was informed by the plaintiffs that the estate had no money with which to pay his claim, or for any purpose connected with the mines. Defendant returned to Mexico, and stopped the man then at work on the mines at Oro Blanco. He paid personally for the work done on the mines under his orders, and made no claim against plaintiffs for repayment. On December 20, 1911, he went to the mines for the purpose of doing what he could to protect the title to the mines by resuming the work. His purpose in protecting the title was that he might be able to sell the mines for plaintiffs, and out of the proceeds of the sale recover his claim against the estate. He had no^ authority from the estate to cause the work to be commenced. He commenced the work voluntarily, and at his own personal expense and risk, and for his own benefit. In order to see to the work, he occupied a house on one of the claims of the group. Defendant Quitty occupied the house with him. On December 23, 1911, defendant started two men to work on ■ the claims at an agreed wage of $2 per day. One man worked five days, and quit, for the reason he could get work nearer his home. The other man worked five days on-the mines, and one day packing and providing wood for the camp; after which he quit, for the reason he was sick. For all of which work defendant McDonald paid. For that purpose he borrowed $100 from a friend. He made no charge against the estate. The plaintiffs knew he had had men at work on the mines. On the 28th of December, 1911, about 5:30 P. M., plaintiffs sent a representative to the mines to see if the mines were valid, and, if so, to arrange to have the annual work done. Plaintiffs’ representative said nothing about the work defendant was having, and had had, done on the mines, although he was informed of the fact. He made no offer to pay for the work nor to continue the work for plaintiffs. Plaintiffs’ representative admitted that plaintiffs had not furnished him with money with which to pay for the annual work, but stated that he was informed that money had been provided for that purpose. This representative expressed a desire to arrange with defendant McDonald to perform the annual work on the group of claims for the plaintiffs. The arrangement the representative desired to make was that McDonald would commence the work immediately and continue the work during the remaining days of the year 1911, and continue the work in January until the representative could notify him that the money to pay for the entire annual work had reached the representative at Prescott. As an inducement to agree to this arrangement, the representative offered to personally guarantee to McDonald wages for the work done up to the time McDonald could receive such notice, not later than January 5, 1912. The further promise was made as a further inducement to McDonald that the representative when he received the money, would award the contract to McDonald to complete the annual work. The plaintiffs contend, and introduced substantial evidence in support of their contention, that McDonald accepted plaintiffs’ said offer, and thereby agreed to commence the annual work on the claims for plaintiffs immediately after December 28, 1911, and continue the work until lie received notice from plaintiffs’ representative at Prescott to the effect that said representative had the money for the annual work in his possession, and that he would continue such work at least until January 5, 1912, for which he would receive ordinary miner’s wages. On the other hand, defendant McDonald contends, and he introduced substantial evidence in support of his contention, that he refused said offer, and informed plaintiffs’ representative that he would not trust plaintiffs’ promise to send the money; that defendant would cause the annual work to be done on condition that they pay the money first, and on no other condition. The court and jury find this contested fact for the defendant. We will not disturb such finding, supported by substantial evidence, merely because the evidence is conflicting.

That McDonald performed sueh work as shown by the evidence for his own benefit and as his only remaining hope of collecting his account due from the estate is conclusive. That the plaintiffs did not adopt this work as their work done for the purpose of the annual work and for the purpose of the estate is a reasonable inference to be drawn from all the facts and circumstances in evidence that transpired at the time of the visit of plaintiffs ’ representative to the mines on December 28th, and subsequent events. Mr. Linney, the representative, among other things, stated:

“I do not know now, and did not know then, definitely, the value of the work done by the men McDonald had there. My idea was from $60 to $100. I did not pay for the work done by the men hired by McDonald.”

This evidence, considered as a whole, is convincing that McDonald was not on the property as an agent or representative of plaintiffs. The work was done voluntarily by McDonald for his personal benefit, but with the hope and expectation that plaintiffs would adopt the work as their work, and receive the benefit of it, so as to benefit defendant and permit him to accomplish his purpose; that is, effect a sale and collect his account. When plaintiffs’ representative appeared and expressed no willingness to approve of the course McDonald had adopted to protect the property from forfeiture, and showed a disposition to deal with McDonald at arm’s length, and then begin the performance of the annual work for the year 1911 without reference or regard to the work that McDonald had caused to be done, and, by means of express contracts having reference to the future, to have the work done, as plaintiffs’" work, the conclusive inference therefrom must necessarily be drawn that plaintiffs performed no annual work upon the mines during the year 1911. The work done by McDonald cannot justly be considered as plaintiffs ’ work. The facts and circumstances would not permit such inference to be drawn. The first alleged grounds for recovery are not sustained by the evidence. At the time Powell and J. T. McDonald initiated their relocations, January 1, 1912, and January 3, 1912, respectively, the plaintiffs had not performed any annual work on any of their locations for the year 1911. They began such work on January 16, 1912, after said defendants had initiated their relocations.

As a second grounds for recovery, plaintiffs contend that, conceding these said relocations were initiated before plaintiffs resumed work on January 16, 1912, such relocations cannot be effective as against plaintiffs’ rights. The two reasons, urged why the said relocations cannot affect plaintiffs’ rights are stated under the second grounds for recovery and need not be again stated here. We will consider each in the order stated.

The fact that defendant J. T. McDonald went to the property for the purpose of performing the annual work on the mines in order to protect plaintiffs ’ title for his personal benefit, and, while there engaged in such work, he merely occupied a house on the ground, cannot in any sense be considered a trespass. After plaintiffs’ representative visited the mines on December 28, 1911, said defendant, by continuing to occupy the house, could not be considered a trespasser on the mines. By plaintiffs’ theory of the ease, McDonald had an implied permission from plaintiffs ’ representative to remain there, and his occupancy of the property was the possession of plaintiffs. It is clear McDonald was not a trespasser asserting any rights, adverse to plaintiffs’ rights at any time prior to January 3, 1912.

Defendant Powell reached the mines on December 30, 1911. He was a friend of J. T. McDonald, and occupied the same house with McDonald by invitation. Powell’s business at the mines at that time was twofold: First, to see a man residing near these mines; and, second, to relocate a part of the ground covered by the plaintiffs’ locations on the expiration of the year, if the annual work had not been done for the year 1911. Powell asserted no right to relocate any of the ground in question until the expiration of the year 1911, and then only upon the condition that the annual work had not been done. Powell did nothing in the way of initiating his relocations until after 12 o’clock midnight, December 31, 1911. At that time the ground became open to relocation because of plaintiffs’ failure to perform the annual work thereon for the year 1911. Section 2324, U. S. Rev. Stats. (5 Fed. St. Ann., p. 19; U. S. Comp. Stats. 1901, p. 1426). If Powell had the right to relocate the property, he violated no right of plaintiffs by going on to the ground for that purpose. After 12 o’clock midnight, December ”31, 1911, plaintiffs had. no right to the exclusive possession of the locations in the group, and any qualified relocator could go upon the ground and relocate it, and in doing so commit no trespass to plaintiffs’ rights. What we say of Powell can also be said of J. T. McDonald in this particular. The facts in evidence do not support this ground of contention under consideration. Plaintiffs did not commence to do any annual 'work on the property prior to January 1, 1912, and therefore no suspension of such work took place.

The second grounds for appellants’ second contention are likewise without support in the evidence. Plaintiffs commenced to perform their annual work for the year 1911 on January 16, 1912, and after the relocations of Powell and J. T. McDonald had been initiated.

The said relocators thereby acquired the right to exclusive possession of the ground relocated by them, and the work done by the plaintiffs was without effect to restore any rights to plaintiffs in the ground so relocated; the said defendants owing no duty to plaintiffs, as we have shown above.

The evidence to the effect that the Lubee claim was no part of the Golden Eagle group, but a location disconnected from the group, is undisputed. That a sufficient amount of work was not performed upon the Lubee claim for the year 1910 is also uneontradicted. Defendant Quitty relocated the Lubee ground in September, 1911, and he thereby acquired a superior title thereto.

The Dalton relocation remains to be noticed. Dalton relocated a part of the grounds claimed by plaintiffs in September, .1912. On January 16, 1912, plaintiffs resumed work bn the Golden Eagle group by starting one man to work thereon, with the instructions to continue the work until the annual work for the year 1911 was completed. No evidence was offered to show on which location of the group this work was started. Plaintiffs’ witness testifies that he put the man to work on the group, and the man informed witness that the work was finished about the 1st of August, 1912. No objection was raised to the hearsay evidence upon the grounds that it was hearsay. The court found for the defendant Dalton, and this finding can be supported upon the theory that the work so resumed and performed was performed upon other ground within the group than upon the ground included within the Dalton relocation. At the time the work was resumed both J. T. McDonald and Powell had initiated their relocations, thereby appropriating a large part of the group and destroying the group identity. In order that plaintiffs’ work be considered as work done upon the group for the benefit of the Dalton ground, such work must necessarily have been done on ground owned by and in the right and possession of plaintiffs, which would tend to develop the said Dalton ground. Such fact does not appear from the evidence. If the work was resumed and finished as testified to, but done on ground covered by the relocations of J. T. McDonald or Powell, such work would not suffice as the annual work for other locations of the original group, not covered by the re-locations. This inference can readily be drawn from the evidence that the work was not done by plaintiffs on the ground covered by the Dalton relocation, nor on other ground owned by, or in the possession of, plaintiffs for the benefit and development' of the ground covered by such relocation, and therefore the Dalton relocation is deemed valid, and has precedence over any claim of plaintiffs.

The judgment appealed from is affirmed.

FRANKLIN, C. J., and ROSS, J., concur.

Application for rehearing denied.

NOTE.—The question as to when a mining elaim is subject to relocation is treated in a note in 68 L. B. A. 833.