Counsel for plaintiff have submitted an instructive brief on the several subjects of co-tenancy, partnership, specific performance, equitable mortgagor and mortgagee, cestui que trust, trustee ex maleficio, and principal and agent. Generally I agree with the law submitted, but I am unable to find that it can or should be made applicable to the facts in this case. It would be, indeed, a strange state of affairs if Boulton, having entered into a mining venture,'such as the evidence discloses this was, and, after having declared that he was done, and would have nothing more to do with it, selling his personal effects, surrendering any and every interest he had in the venture, to get back the security he had given, as between himself and Ditz and Selch getting released of all liability for expenses incurred, and leaving the country, could three years later come back.and say to Ditz and Selch: You are my trustees. Account to me for what you have done. \
Particular stress has been placed upon the -fact that Ditz was advancing Boulton’s share of the expense in prospecting the property, and that Ditz was to be reimbursed from the proceeds of the property if operations were successful. This contention could only prevail in the event Boulton stayed with the venture until proceeds were available. He declared himself out, quit, and, besides thus abandoning the venture, received back from Ditz the security he had given for one-third of the expenses. It seems almost impossible to state a case where the abandonment of a venture, both by intent expressed and acts in furtherance thereof, could be more complete. Counsel ingeniously argues that putting down 11 holes and not finding the pay streak goes to the development of the property, because in subsequent work it would be unnecessary to further prospect at these points. In Alaska, as in all mining districts, it has been the finding of the pay streak that counts. Counsel’s argument is without merit.
*15The general principles of equity and law applicable to this case, set forth in McGahey v. Oregon King Mining Co. (C. C.) 165 Fed. 86, Cameron v. Burnham, 146 Cal. 580, 80 Pac. 929, Larsh v. Boyle, 36 Colo. 18, 86 Pac. 1,000, 27 Cyc. 763, and R. C. L, 927, 938, are recognized.
The order of the court is that the bill of complaint should be and is dismissed.'
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