Admittedly, this suit is the outgrowth of a mining excitement — short lived, but very sensational during the few weeks it lasted. The excitement was occasioned by a discovery made by the defendants of a fabulously rich surface deposit or pocket of gold upon the property of the Electric Gold Mines Company in the Weepah mining district, Esmeralda County, Nevada. Upon the strength of the discovery, the defendants, in anticipation of the rush to follow, staked a large number of mining claims adjacent to and surrounding the place of discovery for speculative purposes only. At the height of the excitement the defendants readily disposed of a number of their locations to individuals and corporations. The locations standing in the name of the defendants and the proceeds derived from the sale of certain of their locations form the subject of this suit.
The suit was brought for the purpose, among other things, of obtaining a decree determining that the plaintiff Schmidt is a one-third owner with defendants Horton and Traynor in the locations standing in the name of the defendants in the Weepah district.
The object of the suit was, among other things, to impress upon said locations, and the proceeds received from the sale of certain of the locations, a trust in favor of the plaintiff.
The plaintiff sought by his complaint to establish a claim or right to a one-third undivided interest in all said locations under and by virtue of an agreement entered into between the parties on the 5th day of February, 1927, to locate mines upon the public domain by their joint aid, effort, labor, and expense, whereby each was to acquire, by virtue of the act of location, an equal undivided one-third interest. *Page 327
In order for plaintiff to obtain the relief demanded in his complaint, the burden was upon him, first, to establish the agreement by clear and satisfactory proof; and, second, to establish that the agreement had not been annulled in any way, and that it was in full force and effect when the locations were made. Craw v. Wilson, 22 Nev. 385, 40 P. 1076; Costello v. Scott,30 Nev. 43, 93 P. 1, 94 P. 222; Lawrence v. Robinson,4 Colo. 567; Johnstone v. Robinson (C.C.), 16 F. 903.
Much of the briefs are devoted to the discussion of the nature and character of the agreement which constitutes the basis of the plaintiff's cause of action. The trial court was of the opinion that the evidence establishes a joint adventure, grubstake, and partnership agreement existing between the parties on March 1, 1927, the date of the discovery made by the defendants at Weepah. In my judgment, the evidence establishes a prospecting partnership between the parties, not limited as to time or place, to locate mines upon the public domain by their joint aid, effort, labor, and expense, whereby each was to acquire an equal interest in all locations wherever made under the agreement. Such an agreement is distinguishable from a joint adventure, a grubstake contract, or mining partnership. 40 C.J. 1154. But whatever the name, in order to give to the parties associated an interest in the locations, the association must have existed at the time the discovery and locations were made.
The important question, therefore, is whether the locations here in controversy were made under the prospecting partnership. It is well settled that a prospecting partnership without limit as to the time of its continuance is determinable, subject to equitable restrictions, at the pleasure of any of the parties. Lind v. Webber, 36 Nev. 623, 134 P. 461, 135 P. 139, 141 P. 458, 50 L.R.A. (N.S.) 1046, Ann. Cas. 1916A, 1202; Lawrence v. Robinson, supra; 40 C.J. 1155.
My dissent from the majority opinion in this case rests upon what I consider to be erroneous conclusions of law deduced from the trial court's findings of fact *Page 328 relating to the question of whether or not the locations which form the subject of the suit were made under the partnership. The court expressly found as a fact that the defendant Horton withdrew from the partnership on February 17, 1927. That thereafter, to wit, on February 20, 1927, the plaintiff Schmidt and the defendant Traynor, believing that Horton had withdrawn from the partnership and acting independently of it, made a trip to the Weepah district in company with one Crumley in the latter's automobile, where they located six claims, covering ground that had been examined by Schmidt and Horton prior to Traynor's admission on February 5, 1927, into the partnership. The trial court, however, concluded from its findings of fact: First. "That Horton's purported and pretended withdrawal from the partnership on February 17, 1927, was ineffectual, inoperative and of no legal effect." Second. "That when Horton and Traynor used the partnership equipment on their trip to Weepah on March 1, 1927, Horton rescinded, revoked and canceled his notice and declaration of withdrawal theretofore made on February 17, 1927."
I can conceive of no better proof to show that Horton's withdrawal from the partnership was not pretended, ineffectual, and of no legal effect than the acts of the parties themselves. It appears that three days after Horton's withdrawal, Schmidt and Traynor, believing that Horton was no longer a partner and acting independently of the partnership, located with a third party a number of claims in the Weepah district. There is no evidence whatever to show that Horton's withdrawal was subsequently abrogated, other than the uncorroborated and self-serving declaration of Schmidt as a witness in his own behalf, unless, as concluded by the learned trial court that Horton's use of "partnership equipment" on the trip made by Horton and Traynor to Weepah on March 1, 1927, as a matter of law amounted to an abrogation of Horton's withdrawal from the partnership made on February 17, 1927, therefore the discovery and consequent locations in controversy were made under the partnership. I am not in accord with *Page 329 this conclusion. The expression "partnership equipment," as used in the conclusion of law, is ambiguous and to some extent misleading. If by "partnership equipment" was meant the "Traynor Bug," the conclusion is clearly erroneous for the reason that the "Traynor Bug" was not a partnership asset. It belonged to Traynor. It is true that the "Traynor Bug" was reconditioned by placing thereon certain parts taken from the so-called "Dutch Bug," consisting of battery and tires, but these parts were in no sense equipment furnished by the partnership. On the contrary, Schmidt considered that upon Horton's withdrawal the parts mentioned became his property under the contract for which he sought an accounting. In my judgment, Horton's positive and unequivocal withdrawal from the partnership on February 17, 1927, was not abrogated or affected by his use of the "Traynor Bug" in making the discovery on March 1, 1927. Such a strained conclusion is not sufficiently strong to impress the locations standing in the name of Horton and Traynor, or the proceeds from the sale thereof, with a resulting trust in favor of Schmidt.
The plaintiff having failed to establish that the locations were made under and by virtue of the partnership agreement, I conclude that the judgment or decree should be reversed, with directions to dismiss the action. *Page 330