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buildings elsewhere, and by its express written declarations on the subject filed in the cause. But counsel for respondents argues that there can be no partial abandonment; that if petitioner could discontinue proceedings at all, it must be as to the whole of the premises or none; and, if we correctly understand him, he claims that petitioner should have abandoned the right of way, and removed its ties and rails therefrom. As already observed, the proceeding was instituted for the condemnation of land for petitioner's depot grounds and machine-shops, and also to secure the right of way for its road. Upon return of the award it substantially attempted, by a so-called supplemental petition, to abandon the whole proceeding. But it asked permission, under the law, (section 242, aforesaid,) to retain possession of the right of way, and requested the appointment of commissioners or selection of a jury to assess the compensation therefor. It might have been more regular had petitioner simply filed a statement relinquishing all claim to any part of the premises, and then, by a proper petition, have instituted an entirely new proceeding for the right of way.
But we hardly think it was necessary to incur the useless expense and trouble of tearing up and removing its track only to replace the same when the court should have granted permission. The statute clothes the court or judge with authority to allow petitioner, if already in possession of the premises, to retain and use the same pending proceedings, upon deposit of the sum fixed to cover the compensation afterwards awarded. This clearly implies that there may be instances where petitioner has possession before there has been any judicial action upon the subject. We think that in a case like the one at bar the court or judge might grant permission, making proper provision for security, to retain possession during the proceedings.
5. It is the impression of counsel for both parties that the writ of error in this case brings before us for review only the proceedings prior to and including the order denying petitioner's motion to vacate the award. This action we have held to constitute, under the peculiar provisions of our statute on the subject of eminent domain, such a final judgment as laid the foundation for review on error. Denver l V. 0. R. R. Co. v. Jackson, 6 Colo. 340.
The assignments of error relating to the part of the record mentioned are three in number. Upon examination of the questions presented in connection therewith, we are of opinion that no ground for a reversal thereunder exists. That this conclusion agrees with the views of counsel is evidenced by the fact that they do not rely upon these assignments in argument. The award of the commissioners in this case, and action of the court in declining to vacate the same, will therefore not be disturbed.
6. It is needless for us to consider the apprehensions of counsel concerning the institution of experimental condemnation proceedings, and the wrong and annoyance which may be inflicted upon land
owners through successive appraisements of the same premises by one and the same party. We do not recognize the right to such successive appraisements. In this case, should petitioner renew its election to relinquish all of the premises except the right of way, it would be manifestly unjust to compel respondents' acceptance of the value per acre fixed in the award for the two acres retained. In justice to respondents it is necessary that there should be a new appraisement, both as to the value of the premises taken, and damages to their remaining lands occasioned by the appropriation. This would be no second appraisement of the same premises, because there never has been a proper appraisement and award as to what is now asked. We fully recognize the fact that the interests of respondents in these proceedings should be carefully guarded; that the rights of the landowner are not to be trifled with. But if the foregoing views be correct, he is well protected. Besides the security above mentioned, given by statute as a protection against damage or injury, it is enacted that if the proceedings be delayed by petitioner, the land-owner may conduct the same to a conclusion. He is thus provided with the means for avoiding unnecessary delay. It may be further answered to counsel's suggestion that as petitioner must bear all the costs of the proceedings, and also pay all damages arising therefrom, such experiments would be an expensive luxury; also that when cases arise wherein any of the abuses feared are not expressly provided for, the court will doubtless devise some means for giving the land-owner ample protection.
The judgment is affirmed.
NOTE. Condemnation of Lands- Abandonment of the Proceedings. It was held by Júdye DEADY in the case of V. S. v. Oreyon Ry. & Nav. Co., 16 Fed. Rep. 524, that where the United States has instituted proceedings to condemn lands for public improvements, after the award of damages has been made, the plaintiff can elect to pay the award or abandon the proceedings. But it is said by the supreme court of Nebraska in the case of Drath v. Burlington & M. R. R. Co., 18 N. W. Rep. 717, S. C. 15 Neb. 367, that after an award by the commissioners, and a judgment by the court, a railroad company cannot abandon the condemnation proceedings, disclaim the title, and void the judgment.
(8 Colo. 355)
LINN and another v. BU' LER and another.
October Term 1885.
MINES AND MINING-CONTRACT OF SALE_PAYMENT OF PURCHASE PRICE.
Where a contract of sale of a mining claim is entered into, whereby an in terest therein is disposed of on a cash payment, balance to be paid out of the net earnings of the mine, and the parties purchasing sell a portion of such mine to another company, and consolidate the two mines, the money to be paid out of the net earnings at once becomes due and payable. Error to district court, Lake county. L. C. Rockwell, for plaintiffs in error. Decker & Yonley and H. Butler, for defendants in error.
BECK, C. J. The litigation in this case arises out of mining transactions. Plaintiffs in error brought suit in the court below, against the defendants in error, upon a contract of sale of an undivided onefourth interest in the American mine. Defendants in error demurred to the complaint, alleging as ground of demurrer that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and, the plaintiffs declining to plead further, final judgment was rendered by the court, to which ruling and judgment plaintiffs duly excepted, and sued out this writ of error.
We learn from the complaint that William P. Linn, one of the plaintiffs in error, owned an undivided one-fourth interest in the American mine, situate in California mining district, Lake county, this state, which interest he transferred and sold January 24, 1879, to the defendants in error, Hugh Butler and Charles W. Wright, the consideration of the sale being $5,750. The contract of sale, which is incorporated in the complaint as a part of it, states the terms and conditions of payment as follows: $250 cash, (the receipt whereof is acknowledged ;) $250 in 30 days after date; $250 in 60 days after date; and the remaining $5,000 to be paid out of the net proceeds of the property sold. The contract permits the purchasers to deduct from the proceeds of ore taken from the mine, on account of the one-fourth interest sold them, all legitimate mining expenses, together with the cash installments, amounting to $750, and the bal. ance is to be deemed net proceeds. It was draughted in duplicate, and contains an agreement that it should not be assignable, and that the money agreed to be paid should become due and payable to Linn only. The purchasers were let into immediate possession, and it is averred that they waived the stipulation against the assignment of the contract soon afterwards, and consented to its assignment by Linn to Charles F. Burrill as a security for a loan of money. Burrill afterwards assigned it to Linn's co-plaintiff in error, L. C. Rockwell, who now holds it as collateral security for money previously loaned by him to Linn.
Plaintiffs in error allege that the purchasers, Butler and Wright, have disregarded the terms of sale specified in the contract, and have entered into such sales and transactions in respect to the property conveyed as to violate the terms of the sale, and seriously to impair the security of the purchase money.
The principal stipulations of the contract of sale, as set out in the complaint, are as follows:
“And it is further agreeil, on the part of said second parties, that they will, at the end of thirty (30) days next after the date hereof, pay unto said Linn said sum of two hundred and fifty dollars, ($250,) and in thirty (30) days next thereafter, a like sum; and that they will also pay unto said Linn the remaining installment of five thousand dollars, ($5,000.) It being well understood, however, that said payment of five thousand dollars ($5,000) shall only be due and payable upon the terms and conditions herein; that is to say, that said latter sum shall be due and payable only out of the net proceeds received from the sale of ore taken from said American mine by said second parties; such met proceeds to be the net proceeds aforesaid of the undivided one-fourth interest of said mine,-that being the interest conveyed by said Linn to said second parties.
“And it is hereby further agreed and fully understood that the net proceeds above specified shall be construed only to mean the money received by said second parties from the sale of ore mined and taken from said mine by them on account of said one-fourth interest, and left remaining in hand after paying all expenses of said mining; as well, also, all moneys advanced by said second parties, or paid out by them for and on account of said undivided onefourth interest, including the seven hundred and fifty dollars ($750) paid on account of the purchase of said one-fourth interest. And in case of sale by said second parties of said interest, then and in that event said five thousand dollars shall at once become due and payable."
Upon a compliance with the terms of sale the purchasers had an opportunity of taking the entire purchase money out of the premises. True, three cash installments of $250 each were to be made, regardless of the proceeds of the mine, but provision was made for reimbursing the purchasers for these and other advances and expenditures. Hence, upon a final settlement, the entire consideration of the property sold would be $5,000.
It is evident, from the tenor and effect of the stipulations, that Linn relied for the consummation of the contract of sale upon the mineral value of the property sold, and likewise upon his knowledge of the honesty and mining experience of the vendees; likewise upon their personal supervision and control of the workings of the American mine, to the extent of the interest conveyed to them by Linn. The condition of the contract, that Linn should await final payment until the same could be realized out of the net proceeds of the property sold, means the net proceeds of the entire interest conveyed, not the net proceeds from a fractional part of that interest.
The complaint avers that the vendees have not paid the said installment of five thousand dollars, and that they have entered into transactions which have destroyed the security for its payment, and that, although it is now due and payable, they refused to pay the same. The transactions referred to are the sale of one-half the interest so conveyed to them by Linn, to the owners of the Little Sliver mine, and entering into an agreement with said parties to release an adverse claim filed by the owners of the American mine against the application of said parties for a United States patent for the Little Sliver mine, whereby a large portion of the American mine was included in the patent issued to the owners of the Little Sliver. This result was brought about by the release of said adverse claim, and the dismissal of the suits brought in aid thereof by Butler and Wright and the other owners of the American mine, and without the knowledge or consent of plaintiffs in error. One purpose of this agreement was to effect a compromise of the litigation concerning the adverse claim, a dismissal of the suits pending, and consent of the owners of the American mine that a patent might issue to the owners of the Little Sliver location, without objection, for all the territory claimed in their application, whether included within the patented surface ground of the American or not.
We cannot ascertain definitely from this agreement what proportion of the surface ground of the American was thus covered by the other claim, but find, among the conceded facts therein, the following specification: “And whereas, the territory included within the surface lines of said two mines conflicts as to the major portion thereof.” It would seem to be a fair inference from this language that a large portion of the American mine was in this manner voluntarily surrendered by Butler, Wright, and the other owners of the American mine to those claiming the same under the name of the Little Sliver. It is alleged in the complaint that the owners of the Little Sliver were assisted by the owners of the American to obtain such a patent, and that the purpose of the latter owners was that both mines might be consolidated into one, and that both might be operated conjointly under one general manager. The complaint alleges that all these agreements were carried into effect by or with the consent of the said Butler and Wright. The adverse claim was withdrawn, the suits dismissed, and a patent permitted to issue as proposed in the agreement. The two mining claims were consolidated into one under a general manager, who was operating the property at the time of bringing this suit. Under the agreement for consolidation the owners of the American mine conveyed to the patentees of the Little Sliver 39–72 of that portion of the American mine which lay without the surface lines of the Little Sliver, and also outside the surface lines of the Matchless and the Union Emma mines.
Defendants in error received, in consideration of all these concessions on their part, 9-72 of the Little Sliver mine.
If the territory included within the surface lines of the American and Little Sliver conflicted as to the major portion thereof, as alleged, the conflicting portion, of course, went into the patent of the Little Sliver. Then, when 39-72, or more than one-half of the portion without the lines of conflict, was conveyed to the owners of the Little Sliver, it would seem that but little of the title to the American lode proper remained in the former owners of the American, viz., Butler, Wright, Webster, and Craig. Here, then, was an absolute parting with onehalf of the property sold defendants in error, a release to an adverse claimant of another portion, and a consolidation of the two mining claims into one, under a general manager of the whole.
What, now, is the legal effect of these transactions upon the contract sued on? In our judgment the sale by Butler and Wright of a half interest in the property so conveyed to them is of itself such an impairing of the security as to render the last installment of purchase money due and payable. If a sale of one-half their interest does not produce this result, then no sale short of the whole interest would produce such a result, which conclusion is opposed to sound princi