
    HELSTROM v. RODES.
    
    No. 1682.
    Decided January 13, 1906
    (83 Pac. 730).
    1. Trusts — Minuto Claims — Location.—Plaintiffs husband and another located a mining claim, a portion of which they sold to J., who conveyed to defendant. The assessment work not having been performed, plaintiff relocated the claim, and obtained a patent from the United'States therefor. Held that, in the absence of any evidence that plaintiff relocated the claim for the benefit of any one but herself, a finding that she held a portion of the claim in trust for defendant was erroneous.
    2. Public Lands — Occupancy — Improvement. — Mere occupancy of public land, with the construction of improvements thereon, vests no right in the occupier as against the United States or a patentee from it.
    3. Same — Occupying Claimants — Compensation eor Improvements. One who makes improvements on public land knowing that it is open to exploration and sale for its minerals, and who takes no steps to secure title or right to possession under the laws or the local rules and customs of miners, has no valid claim of possession or of compensation for improvements as an adverse holder in good faith, as against a patentee from the United States.
    Appeal from District Court, Third District; M. L. Bitchie, Judge.
    Action by Mary Helstrom against Isaac Bodes. From a decree in favor of defendant, plaintiff appeals.
    Be VERSED.
    
      J. Ingebretzen and J. D. Pardee for appellant.
    
      McOumn & Gustin for respondent.
    APPELLANT'S POINTS.
    Plaintiff claimed that having obtained a patent for the Julia Lode free and untrammeled, that she was entitled to the possession of tbe whole claim, together with what improvements there was on it when she bought it from the United States Government, which would include everything claimed by Rhodes. (Snyder on Mines, sec. 552; Gollins v. Bartlett, 44 Cal. 371; Pennepacker v. McDougall, 48 Cal. 163; McTiernan v. Hesse, 51 Cal. 594; Treadway v. Sharon, 7 Nev. 37; Duffebacle v. Hawkes, 115 U. S. 392; Sparks v. Pierce, 115 U. S. 408; Lindley on Mines, sec. 409.)
    RESPONDENOS POINTS.
    Where property is acquired by fraud or under such circumstances as to render it inequitable for the holder of the legal title to retain it, a court of equity will convert him into a trustee of the true owner. (Hardy v. Harbin, Fed. Cas. 6060, 4 Sawy. 536, aff. in 154 U. S. 598; Thompson v. Ferry [Ariz.], 36 Pac. 741; Turner v. Sawyer, ISO U. S. 578; Hunt v. Patchin, 35 Fed. Rep. 816; Min. Oo. v. Tinney [Nev.], 35 Pac. 89; Seymour v. Fisher [Col.], 27 Pac. 240; Hdw. Oo. v. Schwab [Mont.], 34 Pac. 24; Alexander v. Sherman [Ariz.], 16 Pac. 45; McCarthy v. Speed, 77 N. W. 590.)
    
      
       Eight of one who buys, or makes lawful entry on, public land, to crops and improvements placed thereon by another, see note, 70 L. R. A. 799.
    
   STRAUP, J.

This is an action in ejectment. The findings show* That in 1896 Helstrom, then the husband of plaintiff, and Jensen, being the locators, and as such the owners, of a mining claim called the “Lily Lode,” sold a portion of it to Johnson, who thereafter erected a dwelling house thereon, and was in possession thereof until 1903, when he sold and conveyed it to the defendant. The annual assessment work for 1898 not having been done on the claim, in January, 1899, the plaintiff, at the request and for the benefit of her husband and his successors in interest, relocated the claim as the Julia lode. That the plaintiff resided on said claim since 1896, and was a co-tenant with the defendant and his predecessors. In July, 1902, plaintiff obtained a patent from the United States to tbe Julia lode, wbicb embraces tbe premises claimed and occupied by tbe defendant. Tbe court decreed tbat sbe beld sucb portion of tbe claim in trust for tbe defendant, and directed tbat sbe execute a deed of conveyance conveying it to bim. Sbe appeals, attacking tbe findings and claiming tbat they bave no support from tbe evidence.

Tbe contention is well founded. There is a total want of evidence to support tbe findings tbat plaintiff located tbe Julia claim at tbe request of ber husband or of any one, or tbat sbe made tbe location for bis benefit or for tbe benefit of bis successors in interest, or for tbe benefit of any one other than herself, or tbat sbe is, or ever was, a cotenant with tbe defendant or bis predecessors in interest. To tbe contrary, tbe evidence shows that tbe plaintiff located tbe Julia claim alone for herself, and not for tbe benefit of any one else. Nor does tbe court find, when plaintiff applied for patent, that there was any agreement between ber and tbe defendant, or bis grantor, to convey any part of said claim to them or either of them'. Hence tbe cases cited by tbe defendant, to tbe effect tbat where one cotenant of a mining claim, who, on tbe annual assessment thereon not being done, relocates it, or where a patent to a mining claim was issued to one who, by previous agreement with tbe original locators or their assigns, was to convey a portion of it or an interest therein to them, or where a party wrongfully obtains tbe legal title to land wbicb rightfully belongs to another, and bolds it in trust for sucb other, bave here no application. Tbe case falls within tbe rule tbat an occupant of tbe public land, without title, and without any attempt being made to secure title, cannot resist tbe enforcement of tbe patent of tbe United States on tbe ground of sucb occupancy. Mere occupancy of tbe public land and improvements thereon are no vested right therein as against the United States, and consequently not against any purchaser from it. A , person who makes improvements upon public land, knowing tbat it is open to exploration and sale for its minerals, and makes no effort to secure tbe title to it as sucb land under tbe laws of Congress, or the right of possession under tbe local rules and customs of miners, has no valid claim of possession or of compensation for bis improvements as an adverse bolder in good faith, when sucb sale is made to .another, and tbe title is passed to bim by a patent of tbe United States. (Sparks v. Pierce, 115 U. S. 408, 6 Sup. Ct. 102, 29 L. Ed. 428; Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. 95, 29 L. Ed. 423; Collins v. Bartlett, 44 Cal. 371; McKiernan v. Hesse, 51 Cal. 594; Treadway v. Sharon, 7 Nev. 37; 1 Snyder on Mines, section 582.)

It is not alleged in tbe answer, nor found by tbe court, tbat in locating tbe claim or obtaining tbe patent plaintiff, or tbe owners of tbe Lily lode, were guilty of any fraud or wrong, or tbat any act or thing was done by them to defeat any right of tbe defendant or bis grantor; nor does tbe evidence show any sucb facts. Nor was tbe defendant without knowledge of tbe defect of his grantor’s title. His grantor, a witness in bis behalf, testified, and it is not denied by tbe defendant: “When I got ready to sell it, I asked Mrs. Helstrom if she wouldn’t sign a quitclaim deed for it. She never did sign a deed for it. When I sold to Nodes, I talked with bim about the title to tbe ground, and told bim tbat I didn’t have a patent for tbe ground. I told bim tbat tbe title to tbe ground was in Mrs. Helstrom. We talked about it in tbe presence of Mr. Quinn, and Mr. Quinn told bim tbat be should get Mrs. Hel-strom to sign a quitclaim deed, but she never signed it. Then I afterwards went with Mr. Nodes to Mr. Lee, Justice Lee, and I beard Lee tell Nodes tbat be didn’t need to have Mrs. Helstrom sign a quitclaim deed.” Notwithstanding tbe notice given bim by bis grantor, and notwithstanding be knew plaintiff bad located tbe property and bad obtained a patent for it, tbe defendant bad no transaction or conversation with her, made no effort to obtain her grant or release, but contented himself with tbe conveyance made by bis grantor, who bad neither record nor actual title. True, bis grantor bad title from tbe locators of tbe Lily lode, but, in order tbat it may be of worth, it was necessary to show tbat tbe Julia lode was located by tbe plaintiff for tbe benefit of tbe locators of tbe Lily lode, or for tbe benefit of their assigns, or tbat, through fraud, tbe Lily lode was abandoned and tbe Julia lode located to defeat the conveyance made to the defendant’s grantor, or some facts showing that the plaintiff held the disputed ground in trust for the defendant, and in equity and good conscience ought to convey it to him. This the evidence fails to show.

The judgment of the co-urt below is set aside, and a new trial is granted. The costs on appeal are to be taxed against the respondent.

BART'CH, C. J., and IvícCABTT, J., concur.  