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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. They
may sue jointly for the recovery of all their several un-
divided interests.6 Or they may sue and recover sepa-
rately, each for his own interest.7 But one of the tenants
in common, suing in a possessory action against one
who has no right or title whatever, may recover posses-
sion of the whole. This doctrine, as laid down in ear-
lier California cases, has been questioned; 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 ten-
ants 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 be-
come 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 orig-
inal locator. And having acquired this interest, it can-
not 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 pro-
ceeds, 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.

9 Bullion M. Co. vs. Crœsus, &c. Co., 2 Nev. 168.

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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 III. 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).

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§ 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.1 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.4 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. 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 personæ, 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 one of the members to dissolve the partnership, and cer

tain equities which a retiring partner may have as to the appropriation of assets to the payment of partnership debts. These incidents do not belong to mining partnerships.12 There is nothing to prevent the forming of a strict commercial partnership in working and developing mines if the parties are so agreed, and hold themselves out to the world as such partners, in which event the business and the relative rights and liabilities of the partners would be governed in all respects as though they were engaged in any other business with the same community of interest.13 The commercial partnership would probably be the necessary consequence of the ownership of the mine by a partnership, as such; but in general the property is owned by the copartners as tenants in common, and the partnership relation exists between them only as respects the working and development of the property and the profits of such work. Each member holds his interest in his own right. The partnership concern can not acquire any additional property for him, nor impose any conditions upon his disposition or acquisition of interests. Their allegiance to the association is confined to the business-the work in which they are engaged.14 As a consequence, when either of the partners contracts with a copartner to purchase an additional interest, it only affects the company as it enlarges his interest in the proceeds of the business and increases his liabilities. There is no presumption arising from the obligation imposed upon the purchaser by virtue of the relation of partnership, that he acts for his associates.15 But where one of the partners is empowered and authorized to purchase other property as the agent of the partnership, and he undertakes to act in that capacity, a purchase in his own name would impose a trust upon him in favor of his principal.16

1 Duryea vs. Burt, 28 Cal. 569; Skilman vs. Lachman, 23 Cal. 198. 2 Skilman vs. Lachman, 23 Cal. 198; Dougherty vs. Cleary, 30 Cal.

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