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entitled to protection as such; but when tailings were allowed to flow free, it was conclusive evidence of abandonment of all property in them, unless the peculiarities of the place rendered no artificial means for their confinement necessary. And when tailings were allowed free flowage on to the land of another, they became his property.14

1 Post, Ch. XV., "Colorado."

2 Consolidated, &c. Co. vs. Central, &c. R. Co., 51 Cal. 269. 3 Rev. Stat. U. S., § 2339, ante, p. 24.

4 See Ch. XV.

5 Esmond vs. Chew, 15 Cal. 137; Harvey vs. Ryan, 42 Cal. 626.

6 Gregory vs. Harris, 43 Cal. 38; Nelson vs. O'Neal, 1 Mont. 284.

7 Lincoln vs. Rodgers, 1 Mont. 217.

8 Stone vs. Bumps, 46 Cal. 218.

9 Ante.

10 Bliss vs. Kingdom, 46 Cal. 651.

11 Titcomb vs. Kirk, 51 Cal. 288; Basey vs. Gallagher, 20 Wall. 670; Jennison vs. Kirk, 98 U. S. 453.

12 Post, Ch. XV.

13 Consolidated, &c. Co. vs. Central Pacific R. Co., 51 Cal. 269. 14 Jones vs. Jackson, 9 Cal. 237.

§ 151. Tenancy in common.—The rights which may be acquired in mining claims on the public domain may be held in common by several locators or purchasers, with all the incidents that usually accompany such tenancies, in addition to the statutory provision for contribution of annual expenditures. Prior to this statute the right of one co-tenant was such that a mere failure to contribute would not ipso facto work a forfeiture of his interest. It was held that some appropriate action should be taken to liquidate the demand against him. His mere passive acquiescence in a sale of his interest was not sufficient to divest his rights. The right to a mining claim being fixed by the law of property, could not be divested by local district rules.2 There must not only be

a forfeiture of such interest, but some one capable of taking it must be in a position to assert a right to it, even where the forfeiture is claimed for failure to comply with conditions fixed by contract. It was accordingly held that the co-tenants of the delinquent party could not in the company's name, take and hold his interest by forfeiture. Anything required to hold the claim under the original location, being done by one tenant, inured to the benefit of his co-tenants.4 The possession of one tenant in common is the possession of all.5 They may sue jointly for the recovery of all their several undivided interests.6 Or they may sue and recover separately, each for his own interest. But one of the tenants in common, suing in a possessory action against one who has no right or title whatever, may recover possession of the whole.s This doctrine, as laid down in earlier California cases, has been questioned;9 but it seems to be still adhered to in that state, and is well grounded in principle, as any possessory claim by a mere trespasser is an infringement of the rights of each one of the tenants in common, and the rights of those with and for whom he holds. By the act of locating in the names of several persons, whether they consent or not, they become tenants in common.10 Though an interest in a mining claim may only be properly conveyed under state laws by deed, yet the doctrine of abandonment applies so that a co-tenant may be admitted by the locator, and the person to whom the interest is abandoned will hold it by the same right which he could have acquired to the entire claim had the whole been abandoned by the original locator. And having acquired this interest, it cannot be divested without his consent. In case of a sale of the entire claim by the original locator, the co-tenant may ratify the sale and recover his portion of the proceeds, or he may elect to sue in ejectment for the recov

ery of his interest in the claim.11 Beyond the provisions for contribution to the annual expenditure, one or several tenants in common cannot compel an unwilling co-tenant to join in developing or working the claim. The California statute of 1865-6,12 authorizing the levy of assessments by co-tenants for such purposes, was only intended to apply to those between whom the partnership relation existed.13 One tenant in common may maintain an action against his co-tenants for a denial of his right.14 But it has been held that where one of several joint owners of a flume consented to its overflow, his co-owners could not recover for the consequential damage resulting from such overflow.15 It has been held that partition between co-tenants would be decreed as in other estates of inheritance, where the claim was held by possessory right;16 though actual division of the claim would in general be impracticable, in which event a sale and division of the proceeds would necessarily follow.17 The federal courts, in the exercise of equity jurisdiction, have refused to follow the state statutes in this particular, but adhere to the equity rules and precedents, and decline to decree partition unless the petitioner has title to a portion of the premises.18 A tenant in common is entitled to an accounting for the proceeds of the mine from his co-tenants.19

1 Rev. Stat. U. S., § 2324, ante, p..15-16.

2 Waring vs. Crow, 11 Cal. 366; Dutch Flat, &c. Co. vs. Mooney, 12 Cal. 534.

3 Wiseman vs. McNulty, 25 Cal. 230.

4 Strong vs. Ryan, 46 Cal. 33.

5 Mining Co. vs. Taylor, 100 U. S. 37; Mallet vs. Uncle Sam, &c. Co., 1 Nev. 188; Patterson vs. Keystone M. Co., 30 Cal. 360.

6 Goller vs. Fett, 30 Cal. 481.

7 Morenhaut vs. Wilson, 52 Cal. 263; Gelcich vs. Moriarity, 53 Cal. 217.

8 Melton vs. Lombard, 51 Cal. 258, 175.

Bullion M. Co. vs. Croesus, &c. Co., 2 Nev. 168.

10 Chase vs. Savage, &c. Co., 2 Nev. 9; Gore vs. McBrayer, 18 Cal. 582; Henderson vs. Allen, 23 Cal. 519.

11 Murley vs. Ennis, 2 Col. 300.

12 Post, Ch. XV., § 193.

13 Brundage vs. Adams, 41 Cal. 619.
14 Gore vs. McBrayer, 18 Cal. 582.
15 Crary vs. Campbell, 24 Cal. 634.

16 Hughes vs. Devlin, 23 Cal. 501.

17 McGillioray vs. Evans, 27 Cal. 92; Lenfers vs. Henke, 73 Ill. 105; Conant vs. Smith, 1 Aik. (Vt.) 67; Dall vs. Confidence M. Co., 3 Nev. 531; Adams vs. Briggs Iron Co., 7 Cush. 361.

18 Strettell vs. Ballou, 2 Col. Law Rep. 122.

19 Kahn vs. Central S. Co., 11 Rep. 249 (Sup. Ct. U. S., Jan., 1881).

§ 151a. Mining partnership.-Where two or more persons own a mine jointly, or as tenants in common, there may arise between them, without special contract for that purpose, the relation of partners. This occurs where they enter into an agreement to work the property for their mutual benefit, and do work it, contributing to the expense and sharing the profits according to the interest owned by each. This kind of partnership has some incidental rights and liabilities peculiar to itself, though they are governed by the ordinary rules applicable to partnerships, except as those rules are varied by the general usage. Each partner may transfer his interest and avoid incurring future liability without dissolving the partnership.2 Neither of the partners can bind his copartner by a promissory note or contract of indebtednesss without special authority, which it is incumbent on the holder or creditor to show. But the law presumes that each partner has authority to employ laborers and render the firm liable for the wages of employes. Nevertheless, where there is an express agreement among the partners that all such contracts to be binding must be ratified by all, and the employe has notice of such agreement, he cannot recover in the absence of such ratification. In case of sale by one partner of his interest, it

has been held that another member of the concern may have a lien upon the partnership property for moneys advanced beyond his proportion, and notice of such lien is imputed to one who purchases while the partnership operations are in progress.5 But the retiring partner parts with his equity to have the assets of the firm, applied to the payment of partnership debts, before the individual members can be called upon.6 The purchaser of an interest in the property being worked in partnership, by the purchase becomes a partner, with all the rights and liabilities belonging to the relation. Those owning the majority of interest in the property have in general the right to control the manner of working the same, provided that the exercise of such power is necessary and proper for carrying on the enterprise for the benefit of all. In case of manifest oppression, the minority in interest may obtain relief from a court of equity.8 But there can be no controlling interest which will serve to force the minority into the partnership relation.9 What are commonly known as "grub stake" contracts have been held to create a mining partnership with respect to the work of prospecting and location; but the rights and liabilities thus acquired and imposed were held not to be governed strictly by the law of commercial partnerships.10 But to give the furnisher of supplies an interest in the mines discovered, the relation must be a subsisting one at the time of discovery. If the prospector has abandoned his contract and entered into similar arrangements with another, the original furnisher will be entitled to no interest in the mines discovered.11 However, the main difference lies in the absence of the rule of delectus persona, as applied to strict partnerships. Upon this depends the right of a surviving partner to control the interest of decedent; the effect of a transfer of interest by ne of the members to dissolve the partnership, and cer

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