Hendrickson v. California Talc Co.

BARNARD, P. J. —

The plaintiff brought this action for declaratory relief to determine his interests in four unpatented mining claims, including one known as “Cooperation No. 1”. The complaint alleged that in 1928, the plaintiff entered into a mining partnership with one Oscar Hoerner; that during that year the partners located three of the claims in question; that on June 7, 1930, the partners and four of the defendants here located the Cooperation No. 1 claim; that Oscar Hoerner, with his wife and brother, subsequently jumped and relocated these four claims without including the plaintiff in such new locations; that the Hoerners and the other defendants conspired to cheat and defraud the plaintiff out of his interest in these claims and to this end recorded various notices and contracts which are a cloud upon the interests of the plaintiff in these claims; that a trust and fiduciary relationship existed between the parties; that the plaintiff has no plain, speedy or adequate remedy at law; and that unless equitable relief be given he will suffer irreparable injury. The prayer is for declaratory relief, for an accounting, for an injunction, that the plaintiff be declared to be the owner of an undivided l/6th interest in the Cooperation No. 1 claim and an undivided % interest in the other claims, and for other equitable relief.

Answers were filed by various defendants. Among other things, it was alleged that on June 4, 1930, the land upon which the Cooperation No. 1 mining claim was purportedly located was withdrawn from public entry and had not been restored to such entry on June 7, 1930, when plaintiff’s purported location was made; that such location is void; that after said land was restored to public entry the land which had been embraced in the Cooperation No. 1 claim was “located and relocated ... by certain of said defendants’’;

[546]

and that by various agreements and assignments the interest of the other defendants had been sold under contract to the National Lead Company. A cross-complaint was filed by one defendant seeking to establish his ownership of a l/6th interest in the Cooperation No. 1 claim.

The court made findings of fact

and

conclusions of law and entered a judgment decreeing, among other things, that the plaintiff is the owner of an undivided l/6th interest in two of the claims, that he has no interest in one of the claims, and that he is the owner of an undivided l/8th interest in the Cooperation No. 1 claim. The l/8th interest thus awarded to the plaintiff is accounted for by the fact, as found, that he had conveyed a portion of his 1/6th interest to one Stephens.