
    251 F. 226
    ADAMS v. YUKON GOLD CO. et al.
    No. 3058.
    Circuit Court of Appeals, Ninth Circuit.
    May 6, 1918.
    
      E. Coke Hill, of Ruby, Alaska, William A. Gilmore, of Seattle, Wash., and James E. Fenton, of San Francisco, Cal., for appellant.
    Richard C. Harrison, of San Francisco, Cal., Henry Roden, of Juneau, Alaska, John L. McGinn, of San Mateo, Cal., and R. F. Lewis, of San Francisco, Cal., for appellees.
    Before GILBERT, ROSS, and HUNT, Circuit Judges.
   HUNT, Circuit Judge

(after stating the facts as above).

Many of the errors assigned go to the sufficiency of the" evidence to sustain the findings; but a careful reading of the record satisfies us that the findings are all in accord with the evidence and must stand. We therefore pass to the consideration of what legal principles should control. Under the ruling of McIntosh v. Price, 121 F. 716, 58 C.C.A. 136, Zimmerman v. Funchion et al., 161 F. 859, 89 C.C.A. 53, Waskey v. Hammer, 170 F. 31, 95 C.C.A. 305, and Jones v. Wild Goose M. & T. Co., 177 F. 95, 101 C.C.A. 349, 29 L.R.A.(N.S.) 392, a location of a placer claim made in good faith, but by mistake containing an excessive area, is not wholly void, but is invalid only as to the excess, which may be rejected from such portion as the owner may select, and until the owner is advised that there is an excess, and has had a reasonable time within which to make his selection, his possession extends to the entire claim, and any one who goes upon it and makes a location becomes a trespasser, and his location is a nullity and void for any purpose.

Appellant contends, however, that the Anaconda locations made by Adams are excluded' from within this general rule because Adams, having told Chittic and Muckier, two owners in the Prospector claim, that there was an excess, and having obtained from them permission to locate the excess area, fulfilled all legal duty resting upon him, and that the consent of other co-owners for him to locate the excess was not required. But we have the general rule that one cotenant cannot bind his companions in interest in a matter relating to the joint property, unless special authority is granted. He cannot make a promise on behalf of all cotenants or dispose of the property. Nor can he convey by metes and bounds to the prejudice of a co-tenant. Varnum v. Abbot, 12 Mass. 474, 7 Am.Dec. 87; Lindley on Mines, p. 791. Of course, if Chittic and Muckier were the agents of their cotenants by implied or express delegation of authority, and gave the permission in the exercise of their authority as agents, the cotenants would be bound. But the facts negative the position that any such agency for the cotenancy existed, for the findings are that the co-owners, except Muckier and Chittic, had no knowledge that there was an excess until after this suit was brought. Therefore, the doctrine of agency being irrelevant to the case, we come back to the question what general rules must control.

It seems clear that the owners, other than the two referred to, being ignorant of the fact that their claim contained an excess area, could not be prejudiced by the general consent given by Chittic and Muckier. As co-owners they were entitled to the possession of the entire claim, and, if there was an excess, to be advised of the fact, to the end that they might, within a reasonable time, make a selection of what ground they intended to preserve as their true claim. Presumably this was a valuable right, and, in the absence of a showing of substantial effort to give a notice to all co-owners of record, notice to two is not a compliance with the spirit of the mining laws, which in their liberality have preserved the right of selection. A contrary view might put many co-owners of a mine at the mercy of one of their fellows, and possibly lead to a practical surrender by one co-owner of the most valuable portions of the claim.

We are not called upon at this time to decide just what form of notice would be regarded as sufficient to give to co-owners of record notice that there is an excess, or what excuse for failure to give actual notice would be held sufficient, because in this instance Adams failed to make effort to notify any owners except two, although some others were in the vicinity, and the record of the names of all was within easy access.

The justice of the views we have expressed is made more apparent by the further finding of the court that Muckier and Chittic were told by Adams, if the claim contained an excessive area, to stake such excess from either end or the side of the said claim; but it is found that Adams did not make his locations on either end or side of the Prospector claim, as he was requested'to do by Muckier and Chittic. Reference to the map sustains this finding, in that it shows the Anaconda Fraction as a strip taken ofif the southerly boundary of the Prospector claim, with its southerly boundary not running parallel with the southerly line of the Prospector, but at an angle, so as to leave a strip of ground between the southerly boundary of the Prospector and the southerly boundary of the Anaconda Fraction. It also shows that the Anaconda No. 2, which includes the Anaconda Fraction, has for its southerly boundary the southerly line of the Prospector, which is identical with the northerly line of the Mohawk, and extends westerly of the west line of the Prospector.

The case thus resolves itself into one where, without notice or attempt to give notice to co-owners entitled to be notified of an excess area, the appellant went within the limits of a valid placer location, and without giving the owners opportunity to cast off the excess area endeavored to make locations for the benefit of himself. His attitude became that of a trespasser, and he cannot profit by his pretended locations.

The decree is affirmed.  