Pack v. Thompson

MORROW, Circuit Judge. In the present suit the plaintiff prayed for and obtained an injunction pendente lite restraining and enjoining the defendants from in any manner taking any steps towards forfeiting the plaintiffs right, title, and interest in and to 12 certain placer mining claims, particularly set forth and described in the complaint as claims Nos. 68 to 72, inclusive, 87 to 91, inclusive, 111,, and 112, situate upon Searles Borax Lake, San Bernardino county, Cal. All of such claims are included in the 175 claims involved in case No. 2535, 223 Fed. 635 ,--C. C. A. -. The complaint is based *642 upon an alleged notice of forfeiture, dated September 14, 1914, and served by the defendants upon the plaintiff, wherein they claim to have expended the sum of $1,200 for assessment work upon the claims for the year 1911, and they demand the payment by him to them of a contribution to such assessment work on the claims alleged to amount to the sum of $150, It sufficiently appears that the $1,200 here claimed as an expenditure by 'Pack on the 12 claims for the year 1911 is part of the $5,600 claimed by Pack as having been expended by him on the 175 claims described in the notice attached to the complaint in case No. 2535, 223 Fed. 635 ,- C. C. A. -, where such expenditure is claimed to have been made for the years 1911 and 1912. It appears further that said 175 claims included the 12 claims involved in this case. The inconsistency of these notices, which also appears by direct and positive allegations of the complaint, is sufficient to discredit the notice in this case, and justifies this court in holding that the proceedings initiated by Pack and his successors in interest to forfeit the interest of the plaintiff in the claims mentioned, under section 2324 of the Revised Statutes, be suspended by a temporary injunction until the actual facts can be ascertained and.the questions involved determined upon the merits. The decree of the court below is affirmed.