Custer weekly chronicle. [volume] (Custer City, S.D.) 1890-1931, 1899-01-07
CUSTER CITY, SOUTH DAKOTA SATURDAY, JANUARY Z, 1899

before relocation. Forfeiture is not
complete until some one else has ap-
propriated the property. Lindley on
Mines, ga; u. s. Rev. Sts. 1924. Plain
tiff and Franklin continued TO be coten-
ants so long as the Tin Bar claims con-
tinued to exist; until the ground was
relocated; and during every instance Of
that time the latter was, in law incap-
able of performing any act in hostility
to his cotenant i'm reference to the joint
estate. Franklin wG plaintiffs coten-
ant at the time he entered the boun-
dares Of either Tn Bar claim for the
purpose Of relocating t.s ground. HIS
entry for that purpcs "as hostile to his
cotenant unless he attended to relocate
for the benefit OF all the owners of the
Tin Bar claims. &C may be that be
owed no duty to his cotenants to repre-
sent the claims il may be that he was
at liberty to refrain from performing
any act in reference thereto; but il he
elected to act at all, he Was bound to act
for the benefit OF all the owners. His
acts Of relocation did noe terminate the
fiduciarv relation between himself and
plaintiff, because they were, il done for
the purpose of defeating the rights of
his cotenant, in hostility to his interest,
and if they were done for that purpose
they, of course, operated to the benefit
of all the owners. We think the court
should have adjudged the defendants to
be trustees and have enforced the trust.
This conclusion is not precluded by the
language of the federal statutes. They
provide that upon a failure to comply
with required conditions as to labor or
improvements, "the claim or mine upon
which such failure occurred shall be
open to relocation in the same manner
as If no location Of the same had ever
been made" U. y. Rev. SITS. 1924. 1t is
contended thai IL congress intended to
have the relocator regarded as trustee
under any circumstances such intention
would have been expressed in the stat
ute. The contention is not tenable.
The trust results from the fiduciary re-
lation of the parties and not from the
operation of the statute. If such relation
exists between an original locator and
another and he secures patent, no one
will deny that he may be adjudged to
hold the property in trust for such per.
son, or If relocator sustains such rela-
ton to third person, the latter's right
may be enforced In equity If this be
true there is no reason tor making diff
ferent rule as 10 cotenants. The reloca-
tor is permitted by the statute to acquire
the property in the same manner that
the original locator would have acquired
it, but because of his relation to another,
who may be cotenant, mortgage, or
person having no estate in the property,
he will be adjudged to hold the title in
trust for such person. In all cases of
this character the trust depends upon
the relation Of the parties, not upon the
manner in which title is acquired.
1t is contended that the rule herein
announced is contradictory to public
policy and will result in endless embar-
rassment and confusion to a class of
rights already sufficiently uncertain.
We reply that sound pnbllc policy al
ways requires honesty and fair dealing.
The federal statutes provide a most ar
bitrary and summary t1auner, common
ly called advertising out" which one
owner of mining claim may compel his
co-owners 10 contribute their share OF
assessment work or cease to have any
interest in the claim. An adequate
method is thus provided for enforcing
the rights OF co.oWners in respect to he
development Of mining property; one
that should satisfy the demands of all
persons who desire 10 act fairly with
their business associates.
1t is urged in argument Of counsel for
appellant that the judgment below should
be reversed and the cause remanded
with directions TO render Judgment for
plaintiff This we think should not be
done. All the facts upon which We
predicate an estoppel are not contained
in the findings OF fact this conrt can
not supply these facts and without them
the decision Of the trial court would
not sustain Judgment in favor Of plain
tiff. The judgment and order d"nving a
new trial are reversed and new trial
ordered