The Pioche weekly record. [volume] (Pioche, Nev.) 1877-1900, 1894-07-12
In the District Court of the State of
Nevada, County of Lincoln,
Charles CrAw, Plaintiff,
VS. Decision and Findings.

venture: that one.third interest in certain
mining claims which were located by the
defendant and others in his own name, and
acquired, and the mines taken up and located
during, and under and by virtue OF said
partnership; that plaintiff is half owner Of
all of the claims so located in defendants
name: that defendant be decreed to make
conveyance OF such half interest to plaintiff;
and that plaintiff have an accounting OF the
profits derived by the defendant from the
working of said mines.
By agreement, the taking of an account
has been postponed until it is ascertained ii
plaintiff is entitled thereto.
The real controversy between the parties
is, whether there was an agreement by
and between the parties by the
terms Of which each party was to
have an equal share and interest in all min
ing claims which should be located by the
other, and if such agreement was made,
were the mining properties described in the
complaint, and situated in the Ferguson
mining district, taken up and located during
the life of such agreement and under and
in consequence thereof,
The law is we'll settled that where three
or more persons agree by contribution OF
means or efforts to unite in a common ven
ture for the purpose Of discovery, and To-
eating mines and mining claims, with the
understanding that each shall have certain
share in whatever is so discovered and To-.
Gated, that each is in equity the owner OF
the agreed share or interest in whatever is
so found and located although the legal
title and location has been taken in the
name of one, provided that said discovery
and location, were made in consequence OF
said agreement and by means of the contri'
button of means or efforts so agreed to be
furnished and the party asserting such
claim in equity has fully and faithfully per.
formed his part of the agreement, although
the agreement may be in parol.
The Statute of Frauds, provides that nc
estate or interest in land, nor any trust
therein, except those arising by operation OF
law shall be created except by an instru
ment in writing. Courts of equity have, in
order to prevent a statute, which was enact
ed to prevent fraud, from becoming an in
strument of fraud, relaxed the rigid require
ments of the statute, but before that is done
it must appear that the claim Is just, that
the party seeking relief has fully and faith
fully performed his part, that he has no ade
quate remedy at law, and the case is within
some recognized field OF equity jurisdiction
When parties by their mutual agreement,
joint enterprise and common hazard and en-
deavor, have found valuable minerals, equity
and justice requires that as each has assum-
ed an equal share OF the burden and an
certainty OF the adventure, they should in {
like manner share the benefits and profit
flowing therefrom, and that in equity ant
good conscience property so acquired al
though the legal title may be in the name o
one party to the agreement the title in fac
belongs to each according to his respective
share; that by reason of the agreement
mutual undertaking, and relationship be
tween the parties, whatever one acquires il
consequence of said agreement he holds il
trust for all, and a court OF equity has iuris
diction of said trust. and ample power tt
compel its performance,
The duty, and obligation OF those uniting
in the agreement existing at the time of tn
origin and acquisition of the legal title, Their
| is created, simultaneously with the obtain
| ing of the legal title in the name OF one,
resulting trust in favor Of the others, anC
the law implies an agreement on the part o
him who holds the legal title to convey t
each his respective share, whenever request
ed. Resulting trusts, thus arising by opera
! ton of the law, are not within the statut
| Of frauds and are not necessarily created b
an agreement in writing.
The foundation of trusts Of this character
is that equity looks to the consideration
whether money or services, and creates
trust in favor of him who furnished it. Tn
mere breach of parol agreement while
may justify an action at law for damages,
not sufficient to create trust or give equit
jurisdiction. In addition to the agreement
it must appear that the complainant undel
and by virtue OF said agreement contribute
to the eonsideration--to the acquiring Of tn
title, either capital, supplies, labor or ski
according to the terms of the contract,
consequence and by reason OF which tn
legal title was acquired,
White We. Sheldon, New 2S6.
10 Am L Eng. Enc. PIP IL, ~ & Is 4 note
'The association between parties who ma
be engaged in prospecting explorations
the public lands for mines must exist at II
time of the alleged discovery and location
in order to give the parties associated a
interest in the property. If it does not the
exist, so that the person acting in the fell
making the discovery and location, can
said to be acting for the others as well
himself, no interest can be acquired
those who are not personally present.
johnson vs.. Robinson, McCrary, AZ.
Id. IL Mining Rep. 39S.
Having thus briefly stated the fundamel
tai principles and conditions frem which
implied trust arises where agreements of Il
character alleged are presented to courts
equity for specific enforcement, let us co
slider the character and degree of pro
which the law demands before their enforc
3 ment will be decreed.
3 In Am Eng Enc (vol % PIP 1915, l07,
E the rule is thus stated: "The burden
c proof is upon the plaintiff to show the ma
q inc of the CONTRACT and its farms and