Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1911-06-27

missioner bennett in his decision, that In
the beginning the participants were sub
scribers for joint interests and not owners
of separate claims and that the substantial
character of the transaction never changed.
In 1905 they were sun co-owners' of
single property, although in order to
acquire IT each particular claim had been
allotted to a particular Individual and had
been entered by him in his name"
The original agreement with the Guggen-
helms contemplated the formation of a
corporation as soon as the titles were Sc
cured. This plan gave the Guggenheims
the right to mine the coal on a royalty
basis. The Guggenhelms were also to build
a railroad from the mines to the coast.
AS finally entered into the agreement with
the Guggenheims for a sale aroused seri-
Gus objections from several of the claim
ants.
Weak Points in Defense.
The fact" said Commissioner bennett,
that It was represented to the Guggen-
helms that there were thirty-three indie
pendent claimants to be- reckoned with in
nowise strengthens the defense. 1t is not
to be supposed that any sane men repre-
senting the entrymen as committee would
suggest to a prospective purchaser Of the
property that the claims were illegal and
the several entries subject to forfeiture.
That all the work so far done was paid
for from the common fund is not denied.
1t Is admitted by the claimants. and frankly
stated in the brief of their counsel that one
claim of 100 acres cannot be profitably
worked, that some time and somehow the
claims must be operated together. Is 1t
reasonable to- suppose that business men
would agree to the common investment of
their moneys to jointly explore a coal field
in Alaska with the understanding that the
several claims should be operated sepa-
rately or with no understanding with re-
spect thereto? Would they consent to spend
money jointly where there was to be no
common profit?
| knowing that an area Of 100 acres could
not be successfully operated and that the
| greater the area the mere valuable the
property, would men connected by the ties
of blood have consented that their claims
be scattered throughout the field? Would
men who had been associated as partners
since their youth and who have grown
rich together have agreed to the placing Of
! their claims at remote distances from each
other7 If each claimant was to receive
a single tract and no interest in any other,
| would Cunningham have located the great
majority of the men who first went into
the scheme and made its success possible
on the timber claims of the southern tier,
claims which possessed but little value as
compared with the others?
"If there was no prior agreement would
Clarence Cunningham in April, 1907, before
many of the certificates were issued. have
entered into negotiations with the Gug-
genheims looking to the disposition of the
combined properties7
Contributions Are Equal.
1.-THE amounts contributed by the several
entrymen were substantially the same. II
Il was not understood there was to be a
| common profit. would the sixteen upon
whose claims nothing whatever was done
have permitted the use of their funds for
the development OF the other claims and
would thirty-two of them have suffered
their joint funds to be expended in driving
the expensive tunnels on one claim7
"A further discussion of the facts is not
necessary They speak for themselves and
speak plainly. There was not at any time
! a single act performed that connected any
claimant with the precise tract he claimed
TO locate. There was not a dollar spent by
any locator individually or by his agent
on the land he entered, but every act done
and each dollar disbursed were for the pur-
pose of determining whether the fields as
a whole contained workable deposits OF
coal.
Prior to the hearing eighteen claimants
admitted. under the solemn sanctity OF an
oath that they proceeded from the begin
ming with the understanding that when the
patents were secured they would form a
company for the development of the prop
erty
''The plan from the outset was to &C
quire a coal field at joint expense to be
developed for the common benefit. There
was not at any time a departure from this
compact save the substitution OF the sal
airy to Cunningham for the one-eighth in
terest he intended to secure In the several
claims.
Carrying into effect the purpose OF &C
quiring this coal field for the common use
and benefit OF the members Of associations
claims were located and entries made in
the names OF individuals, but the making
of these locations and entries in the man
ner indicated were means TO an end. and
the names OF the individuals were used
only to effect a colorado company with
the law.
''They exercised no choice In the selec.
ton OF their claims, manifested no inter
est IN their individual values and Except
perhaps Baker, sought no information as
70 their respective locations. The field
Jointly acquired by AL OF them and ex-
plored at the common expense was the only
object OF their sollcitude."