Meyer v. Quiggle

SHAW, J.

The plaintiff filed his complaint, alleging that he is the owner of a certain tract of land; that the defendant claims an interest therein adverse to him which is without right, and praying that the defendant be required to .set forth the nature of his claim; that all adverse claims be ■determined; that plaintiff be adjudged the owner of the land; and that defendant be debarred from asserting any •claim thereto. The defendant filed an answer and cross-complaint, in each of which he alleged certain facts upon which he claimed damages for a breach of contract, and that the same was a lien upon the premises, which he asked to be foreclosed. Upon the trial, after the plaintiff had closed his case, the defendant offered evidence in support of the allegations of his affirmative answer and cross-complaint, to which objection was made by the plaintiff and sustained by the court, upon the ground that the matters alleged did not show that the defendant had any interest in the land in question. Judgment was thereupon given to the plaintiff, from which the defendant appeals.

The claim of the defendant was, that in 1898 the plaintiff and defendant entered into a written contract as follows, to wit: “I hereby agree to sink a well for Marius Meyer and ■develop not less than fifty inches of water. Meyer agrees to pay for said work one hundred dollars per inch in land on the Meyer ranch. If less than fifty miner’s inches is de

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veloped, no charge is to be made for the work. If more than fifty inches is developed, Meyer is to pay in land at the rate of one hundred dollars per inch of water so developed. Land to be valued at fifty dollars per acre. Meyer shall have the right to pay Quiggle in cash, if he so desires, instead of in land, at his option, at the rate of one hundred dollars per miner’s inch. During work, board for Quiggle and one man is to be furnished by Meyer free of charge, and also all horses and assistance that may be needed in hauling machinery, etc. Meyer is to furnish clear title to land and release same from existing mortgage”; that in pursuance of this contract the defendant began to sink a well on the premises described, and continued in good faith and with due diligence in the prosecution of the work until May, 1899, at which time he had sunk the well to a depth of three hundred and twenty feet, and that at one time for more than forty hours more than one thousand miner’s inches of water flowed from the well, but that thereafter it became clogged with gravel and sand and did not flow regularly; that the defendant continued in his efforts to sink the well farther until the latter part of June, at which time the plaintiff refused to allow him to proceed farther with the work, whereby he claimed that he was damaged in the sum of one hundred thousand dollars.