Volume 1 — Alaska Reports

<p>Petition for Habeas Corpus.</p>

<p>1. Equity — Injunction—Remedy at Law.</p> <p>To entitle tlae plaintiff to relief in equity, and to invoke remedial relief by injunction, it must be made to appear on tbe face of tbe petition that be cannot redress bis supposed grievance in an action at law. Equity will not take cognizance of cases where tbe law affords an ample remedy.</p> <p>2. Quieting Title — Possession.</p> <p>In a suit to quiet title tbe plaintiff must allege and show that be is in possession of tbe disputed property, owning an estate of freehold, or an unexpired term of not less than 10 years, and that the defendant claims some interest therein adverse to plaintiff.</p> <p>3. Whauves — United States.</p> <p>An appropriation of a water front for tbe purposes of wharf-age to the United States can only be made by an act of Congress.</p>

<p>1. Justice oe the Peace — Jurisdiction.</p> <p>Under the organic act of May 17, 1884 (23 Stat. 24, c. 53), a commissioner in Alaska, sitting as a justice of the peace, is limited in his civil jurisdiction to controversies where the amount involved does not exceed $250.</p> <p>2. Courts — Consent—Jurisdiction.</p> <p>If a court of limited jurisdiction assumes to act in a case over which the law does not give it authority, the whole proceeding, from the issuing of the writ to the rendition of the judgment, is-void. Consent of parties cannot confer jurisdiction where the-law has not.</p> <p>8. United States Commissioner — Jurisdiction.</p> <p>A judgment was rendered against the defendant before a commissioner at Sitka. The cause was taken before the District Court on certiorari. Held-, that the commissioner was limited in jurisdiction to $250.</p>

The prisoner was committed by a United States commissioner on an information charging him with larceny under the statutes of Oregon, made applicable to Alaska. The prisoner applied for habeas corpus upon the ground that the information upon which the commitment rests charges no criminal offense.

<p>1. TENANCY in Common — PaRtnership—Mines and Minerals.</p> <p>When two persons locate a mining claim together, as to such claim only, their relationship is that of co-tenants oí real estate and not copartners in business.</p> <p>Z. Sale — Tenancy in Common — Trust.</p> <p>When one co-tenant of a mining claim, acting as the agent of the other, sells his interest to a third party, he assumes no trust relationship, and a suit in equity will not lie for an accounting, the proper remedy being, a suit at law to recover the amount alleged to be due.</p>

<p>Petition to Take Depositions.</p>

<p>1. Judgment — Default.</p> <p>Judgment by default, entered upon personal service, will not be set aside unless defendant shows clearly that be has been prevented from defending through no fault of his own, and has a good and meritorious defense.</p>

Motion to Retax Costs. Plaintiff had judgment as prayed for, with costs, and on July io, 1890, filed its bill of costs,, amounting to $151.15. On July 14th defendant filed with the clerk his objections to certain items in the bill, but his objections were overruled by the clerk, and the whole amount was allowed as claimed.

<p>Suit in Equity to Restrain Defendants from Interfering with Plaintiff’s Water Rights, Ditches, and Flumes.</p>

<p>1. Pj.eading — Complaint—Demurrer—Foreign Judgments.</p> <p>A complaint in an action to recover on a foreign judgment is. good against demurrer, under tbe laws of Oregon applicable to Alaska, when it sets forth in plain and concise language the' name of the court, where and when the judgment was rendered, and the amount thereof. The presumption is in favor of the-jurisdiction of the foreign 'court.</p>

This was an action to recover on the bond of the United States marshal for Alaska, and against him and his sureties certain items alleged to have been misappropriated by him by the payment of unauthorized fees.

<p>1. Forfeiture — Animals—Game.</p> <p>A vessel and her tackle, boats, apparel, furniture, cargo, engines, and fixtures are forfeited to the United States for violation of section 1956, Rev, St., for the protection of the fur-bearing animals of Alaska.</p>

<p>1 Admiralty — Forfeiture—Game.</p> <p>An application by a third party claiming to he the owner of certain boats and parts of the cargo of a schooner forfeited to the United States for a violation of the acts of Congress prohibiting the tailing of the fur-bearing animals in Alaska, comes too late after decree and without notice to the United States. All such boats and property on board were subject to forfeiture.</p>

<p>Motion to Dismiss an Appeal from the Probate Court.</p>

The complainants, on July 30, 1900, filed their bill in this court, praying for a perpetual injunction against respondents. Upon reading the bill of complaint, an order was issued out of this court to the respondents, requiring them to show cause why a temporary restraining order should not issue against them.

<p>1. Trial — Continuance.</p> <p>A continuance will not be granted when tbe applicants bad notice of tbe time and place of tbe trial, and tbeir efforts to be present do not appear to bave been made in good faitb.</p> <p>2. Equity — Trial—Verdict.</p> <p>In a suit in equity tbe court is not bound by the findings of a jury, but may malie its own findings under tbe evidence, or may adopt tbe findings of tbe jury for its own, if they are sustained by tbe evidence to tbe satisfaction of tbe judge.</p> <p>3. Mines and Minerals — Excess—Location—Notice.</p> <p>A mining location embracing more than 20 acres by mistake does not invalidate tbe claim. Qucere: Does a mining notice, wbicb includes by its terms more land than is permitted by tbe mineral laws of tbe United States, invalidate tbe location? Richmond Min. Co. v. Rose, 5 Sup. Ct. 1055, 114 U. S. 576, 29 L. Ed. 273; Jupiter Min. Co. v. Bodie Min. Co. (C. C.) 11 Fed. 666; Stemwinder Min. Co. v. Emma Min. Co. (Idaho) 21 Pac. 1040; Rose v. Richmond Min. Co. (Nev.) 27 Pac. 1105; Price v.. McIntosh (2d Div., Nome, Nov. 16, 1901) post, 286.</p>

<p>This was an application of McRae and Tarrant for an order making their judgment in attachment a preferred claim.</p>

<p>1. Pontic Lards — Town Site.</p> <p>It was the aim of Congress to dispose of town lots in Alaska only to actual settlers and occupants. Improvements are evidence of the intention of the settler to use and occupy.</p> <p>2. Same — Town Site — Evidence.</p> <p>Whoever enters upon a vacant town lot and makes the firs! act of settlement or occupancy in good faith, with the intention of following it up and claiming the benefit -of the law, is the first settler or occupant. The first settler or occupant in point of time is entitled to the lot.</p>

<p>Application for Naturalization Papers.</p>

<p>1. Actiost — Law—Remedy</p> <p>A suit in equity will not be sustained where a plain, adequate, and complete remedy may be had at law.</p> <p>2. Courts — Territories—United States.</p> <p>The District Court of Alaska is not, strictly speaking, a court of the United States, and does not come within the purview of the- acts of Congress which speak of “courts of the United States” only.</p> <p>8: Territories — Congress—Legislative Power.</p> <p>In legislating for Alaska, Congress exercises the combined powers of the general and state government. The Alaska Code is to be considered and construed as if enacted by tbe Legislature of a state.</p> <p>4. Actions — Mines and Minerals.</p> <p>An action at law to recover possession when plaintiff is out of possession, or a suit in equity to quiet title when he is in possession, is an appropriate remedy to determine the right of possession of a mining claim, as between claimants, under Rev. St. U S. § 2326 [U. S. Comp. St. 1901, p. 1430].</p> <p>5. Mines and Minerals — Patent—Land Office.</p> <p>After the applicant for patent has once initiated the proceeding in the land office under sections 2325, 2326, Rev. St. [U. S. Comp. St. 1901, pp. 1429, 1430], an independent suit in equity to quiet title, not in any way connected with the patent proceeding, will be dismissed, because the plaintiff has in the patent proceeding a plain, adequate, and complete remedy at law.</p>

<p>Tried July 12, igoo. March 14, 1901, motion for new trial overruled, and judgment entered for the plaintiff.</p>

<p>1. New Tbial — Verdict.</p> <p>Tliis action was brought against Frye-Bruhn & Co., a copart-nership consisting oí Frye-Bruhn Company, a corporation, and Herman Meyer. The answer was a general denial. Meyer admitted an indebtedness to the plaintiffs. The jury found a verdict in favor of Frye-Bruhn & Co. Upon a motion for a new trial the verdict was sustained as to form and effect.</p> <p>2. Partnership — Judgment.</p> <p>Where a suit is brought against a partnership consisting of a corporation and an individual, though the individual may admit a personal indebtedness, a verdict in favor of the partnership will be upheld. The partnership debt sued on was joint, the indebtedness admitted and proved was several, and not sufficient to sustain a judgment in the action, even against the individual partner.</p>

<p>1. Public Lands — Reservation.</p> <p>There is nothing in the act of July 5, 1884 (23 Stat. 103, c. 214 [U. S. Comp. St. 1901, p. 1007]), for the disposal of abandoned or useless military reservations, offering or granting to settlers or occupants entering into possession subsequent to the date of the act and the executive order of withdrawal, any preference right of entry or purchase. Subsequent adverse claims to lots or lands in such tract must be determined by the law of possession.</p> <p>2. Same — Town Site — Possession.</p> <p>No citizen may question the occupation or possession of one residing on the lands or lots belonging to the United States, except lie shows a better right or title in himself.- The,actual prior possession of the first occupant would be better than- the subsequent possession of the last. Campbell v. Mining Co., 1 C. C. A. .155, 49 Fed. 47.</p> <p>8. Same — Forcible Entry — Trespass.</p> <p>A right to the possession of government lands cannot be initiated by a forcible entry and trespass upon the peaceable possession of another person.</p>

<p>Motion to Quash Affidavit and Bond and Dismiss Writ in Civil Arrest.</p>

<p>Motion to Dismiss Appeal from Probate Court.</p>

<p>1. Public Lands — Tide Lands — Injunction—Whakves.</p> <p>An upland owner may extend bis wharf across tide la&ds to deep water at right angles to Ms shore line, hut may not deprive other upland owners of an equal privilege. The defendants erected their wharf on diagonal lines and at an acute angle from their shore line, thereby crossing the line of approach from deep water to plaintiffs’ land. A perpetual injunction was granted.</p> <p>2. Trial — Findings op Fact — Conclusions op Law.</p> <p>In this court, held, that findings of fact and conclusions of law are not of such binding force as to affect adversely the rights of the defendants.</p> <p>8. Public Lands — Tide Lands — Injunction—Wharves.</p> <p>Where different persons own portions of the upland shore line of a small semicircular hay, each party can have only an equitable portion of the approaches to deep water, and a court of equity will protect their several rights by injunction.</p>

<p>Writ of Review to Correct Judgment of Justice’s Court when Amount Involved was Less than $200.</p>

<p>1. Information — Misdemeanor.</p> <p>Misdemeanors for which no infamous punishment is provided' by law may he prosecuted in Alaska upon information; felonies-only upon indictment.</p> <p>2. Licenses — Intoxicating Liquor.</p> <p>Under the Alaska Code, a liquor license issues for a particular building, and the liquor seller is without authority or license-to sell in any other place or building, unless the transfer is first authorized by the court.</p> <p>8. Statutes — Construction.</p> <p>Where the penalty fixed by statute is or may be one year’s-imprisonment, without stating whether it is in the penitentiary or the county jail, and-where the imprisonment in the penitentiary adds forfeiture of civil or other rights or offices, and- makes-the offense a felony, the court will give the accused the benefit of the doubt, and fix the term of imprisonment in the county jail.</p>

The plaintiffs, Carl A. Sutter, M. E. Martin, and H. C. •Strong, bring this suit in equity against J. R. Heckman, Thomas Heckman, and the Alaska Packers’ Association, a ■corporation, and in and by… Held: claimed, owned, and possessed said land, which was situated on Ton-gass Narrows in Alaska, near the present site of the town of Ketchikan.

<p>Libel to Recover Seaman’s Wages.</p>

This is a contempt proceeding against the defendants under chapter 58, pp. 271-274, Carter’s Alaska Code (Act June 6, 1900, c. 7S6, 31 Stat. 429).

The plaintiff in this action alleges that he is a citizen of the United States, a qualified elector and a resident taxpayer of the city… Held: and the said useless expenditure of the public funds will be incurred; that by reason of holding the election in the Second Ward, as described in Ordinance No. 52, all the electors residing within the city of Nome, except those residing in the Second Ward, will be denied permission to vote for councilmen at said special election; and…

<p>1. Corporation — Indictment.</p> <p>A corporation may be indicted for any act done or omitted in. violation of law within the sphere of its corporate capacity, or to an undefined extent beyond.</p> <p>U. Same — Fedonv—Misdemeanob.</p> <p>A corporation may not be indicted or punished for the commission of an act which is in the fullest sense ultra vires, and contrary- to its corporate nature and purposes; and under this rule it may be indicted for the commission of either a felony or a misdemeanor, where the penalty may be either a fine or a forfeiture.</p> <p>H. Indictment — Intent.</p> <p>An indictment must charge that the act was unlawfully done, with wrongful intent.</p>

On the 21st day of February, 1901, the complainant, William Moore, filed his complaint in this court on the equity side thereof against J. Bernard Moore, alleging that the said William Moore is the father of the defendant, J. Bernard Moore; that during the year 1886 the complainant and the defendant, acting together for their mutual welfare, benefit, and profit, pre-empted and located a certain tract of land, containing in all about 160 acres, situate, lying, and being at…

Without referring in detail to the evidence in this case, the court is of the opinion that the evidence as a whole shows substantially the following facts: That lot No.-in block-in the town of Skag-way, the property in question, had been occupied by Mr. Price’s grantors for a year, or perhaps more, prior to the time Mrs. Brockway attempted to take possession of the same; that a cabin had been erected on the lot; that some timber had been cut and placed around the lot as a…

It appears from the amended complaint in this case: That prior to the loth day of July, 1900, Doring, one of the defendants, owned the Daisy claim, and that about the xoth day of July the plaintiff and one McQuade secured an option from him for its purchase. Thereafter this option was disposed.of by McQuade, in whose name it stood in such a way that Coy, James, Benbrook, Mellon, Gassman, Hager, Ben Matsoq, the plaintiff, and McQuade each became interested therein as owners.

<p>1. New Trial — Error—Exception.</p> <p>A motion for a new trial for error in law will not be granted where no exception was taken to the alleged error.</p> <p>2. New Trial — Insufficiency of Evidence.</p> <p>Where a nonsuit was granted for the insufficiency of evidence to support a verdict, a new trial will not be granted by a judge who did not hear the trial, where the evidence was not preserved in the record.</p> <p>8. Judgment — Modification—Term Time.</p> <p>It is a general rule that, in the absence of legislative direction, no court has the power to change, modify, alter, or vacate any final judgment upon any proceeding begun after the term in which it was rendered has passed.</p>

<p>1. Attachment — Affidavit.</p> <p>Where the plaintiff believed that certain machinery belonged to the defendant and was included in a bill of sale to secure a note, when in fact it belonged to another and was not covered. held not sufficient to sustain an attachment upon the ground that the security had been impaired or rendered nugatory by any act of the defendant.</p>

<p>These causes are submitted together upon a stipulation that the decision in one case shall control in the other. The findings of fact in the first case have now been made by the court, and submitted to the attorneys for the respective parties, and have been examined and agreed to by each as a true statement of the facts in the case. Only such reference will, therefore, be made to the facts in this opinion as is necessary to explain the court’s application of the law.</p> <p>The facts necessary to state are: That on July 3, 1900, one H. E. Marple discovered gold upon, and staked and located, a placer mining claim called by him No. 3, on Lulu creek, a tributary of Iron creek, in the Golden Gate mining district, near Nome, Alaska. That he set stakes at the corners thereof, as described in the following notice of location. That upon the initial stake he posted the following location notice:</p> <p>“Notice of Placer Location.</p> <p>“I, H. M. Marple, the undersigned, a citizen of the United States, having complied with the statutes of the United States and the local regulations of the Golden Gate mining district, do hereby give notice that I have this day located and do claim twenty acres of placer mining ground for placer mining purposes; said claim shall be known as number three located on stream known as Lulu creek (a tributary of Iron creek), in the Golden Gate mining district, territory of Alaska, and particularly described as follows: Beginning at initial stake at east end of claim No. 2; thence running 330 feet in a northerly direction to corner stake No. 1; thence 1320 feet in an easterly direction to stake No. 2; thence 660 feet in a southerly direction to stake No. 3; thence 1320 feet in a westerly direction to stake no 4; thence 330 feet in a northerly direction to initial stake or place of beginning.</p> <p>“Located this 3rd day of July, 1900, by H. M. Marple.</p> <p>“Witness: H. Webster.</p> <p>“[10 c. U. S. Rev. stamp affixed and canceled.]”</p> <p>The agreed findings of fact contain this finding in relation to Marple’s stakes: “That the stakes were sufficient to mark the location of the claim.” On July 27, 1900, Marple offered to file his notice of location with the clerk of the district court at Nome. At that time the Golden Gate mining district was yet in existence under its organization by the miners prior to June 6, 1900. The clerk refused to receive or record his location, and informed him that he had 90 days, under the recently enacted Alaska Code, to record the notice. He did not record it, nor offer it for record with the recorder of the Golden Gate mining district, but waited until the court had created the Port Clarence and Kougarok commissioners’ districts and appointed recorders therein. On the 24th day of August, 1900, he recorded the notice in the Port Clarence commissioner’s district with the recorder appointed by the court. Having doubt about the boundaries of the commissioners’ districts, the notice was again recorded on the 28th of September, 1900, in the Kougarok district, which last district seems to have actually embraced the old Golden Gate mining district and the mining ground in question.</p> <p>On August 3, 1900, one W. B. Martin also entered upon the same ground, discovered gold, set similar stakes by the side of those of Marple, and, on a similar initial stake, posted a similar notice of location to that posted on July 3d by Marple. He also described his claim as No. 3 on Lulu creek, a tributary of Iron creek, and gave the same courses and distances. Martin filed his notice with the recorder of the Golden Gate mining district on August 3d, and the same was duly recorded in the records of that district. Martin after-wards sold his claims to the defendant, the Good Enough Mining Company, which on August 7th filed and recorded an amended notice of location, giving a more particular description of the location by reference to natural objects. The claims of Marple were Conveyed to the plaintiff, who, being in possession, brought this suit to quiet his title to the claim.</p>

<p>This is an action by the plaintiff to quiet his title to bench claim No. 15 on Ophir creek, Eldorado mining district, Alaska. He claims the property through a location made by him on the 28th day of January, 1901. After alleging the discovery of gold, the posting, filing, and recording of the certificate of location, and describing his claim, he alleges that the defendant claims some interest in the property, and is in possession thereof, extracting gold therefrom, and prays that their respective claims may be adjudicated, and his title thereto quieted.</p> <p>The defendant, answering, denies all the equities set up by the plaintiff; denies that the plaintiff made any discovery of gold on the premises; and for its first defense alleges title in itself through a senior location, made by one A. Karl-son on the 31st day of May, 1898. It is alleged that Karl-son made a discovery of gold, placed monuments to mark the boundaries, and filed and recorded his notice of location within the time prescribed by law; that ever since that time either Karlson or some of his grantees have been in possession of the claim, working upon and extracting gold therefrom; that on or about the 7th day of August, 1900, the defendant caused the claim to be surveyed according to the original stakes, and caused substantial stone monuments to be located at the four corners thereof; that at the time of making his claim in January, 1901, the plaintiff well knew that the defendant was in possession, working as a grantee under the Karlson location, and had buildings and other substantial improvements thereon; and generally alleges want of equity against the plaintiff.</p> <p>For a second answer and defense, the defendant alleges that on the 15th day of September, 1899, one Henry Shuman located what is known as the “Ophir Flat Placer Mining Claim,” which overlapped the Karlson claim, and included nearly all of that portion of the Karlson claim now in controversy between the plaintiff and the defendant; that by reason of the conflict between the Karlson claim and the Ophir Flat claim the defendant, about August 7, 1900, purchased the Ophir Flat claim from the grantees of Shuman, and has ever since remained in the possession thereof, and working the ground. It appears from the answer that the defendant claims title to the ground in controversy through both the Karlson and Shuman locations.</p> <p>The plaintiff, in his reply, admits the Karlson location, but alleges that the survey made in August, 1900, by the defendant, embraced a tract not included within the original Karlson location certificate, and that it is upon the tract not included within the Karlson certificate that he has filed his bench claim No. 15. He admits the Shuman location on the 15th day of September, 1899, but alleges that for want of a definite description of courses it was void, and insufficient to reserve the ground from subsequent location.</p>

<p>1. Motes .and Mineuals — Discovery—Location.</p> <p>It is immaterial in wbat order tbe acts necessary to constitute a valid placer mining claim are performed, as that tbe marking of tbe boundaries preceded tbe discovery. If all tbe necessary acts are done prior to an attempted location by another locator, it is sufficient, and tbe claim is valid.</p>

In the spring of 1899, C. E. Hoxsie, the defendant, entered into the occupancy of a lot in the town of Nome 100 feet by 150 feet square.

The plaintiffs in this action show that they are citizens and taxpayers of the city of Nome, and together with one Collin Beaton constitute the school board, and that the city of Nome is regularly incorporated under chapter 21 of the Civil Code of Alaska, approved June 6, 1900; that the defendant is the duly elected, qualified, and acting treasurer of the city of Nome; that prior to the bringing of this action the common council of Nome authorized certain warrants to be…

This is an application of Bruno Munro for a writ of habeas corpus to test the legality of his imprisonment, upon conviction by the municipal court of Nome for the violation of a town ordinance. The petition raises the question of the power of the town to provide a municipal court, and challenges its jurisdiction and existence. The chief of police appeared in answer to the writ, and produced the body of the prisoner.

This is a suit in ejectment to recover possession of a portion of a mining claim which is known to all parties to this action, and will be hereafter referred to as the “California Fraction.” Plaintiffs allege two sources of title. The first is derived through a placer mining location made on May 29, 1899, by one Thorolf Kjelsberg; and the second through a placer mining location upon the same ground made on August 18, 1900, by Magnus Kjelsberg.

<p>1. AttoRnby — Client—Attorney Pee.</p> <p>An attorney has the statutory right to retain money in his hands belonging to his client for the payment of his attorney fees. When a single member of a firm was cited to pay money into court belonging to the client, the court ordered the firm made parties, and when it appeared that a contention existed in good faith the cause was set for trial by jury.</p>

<p>1. Ejectment — Abatement—Trespass.</p> <p>Where the defendants in a suit in ejectment bring a subsequent suit against the plaintiff in the ejectment suit for damages for trespass upon the same property,' the suit in trespass will be stayed until that in ejectment is tried, or the two may be consolidated and tried as an ejectment suit.</p>

<p>Motion to vacate an appeal regularly entered and allowed to the Circuit Court of Appeals for failure to forward transcript.</p>

<p>1. Tide' Lands — Mines and Mining.</p> <p>Lands lying below ordinary high tide on the shore of the ocean and arms of the sea in the District of Alaska are not subject to location under the mining laws of the Bnited States.</p> <p>2. Mines and Minebals — Evidence—Patent.</p> <p>As a general rule the recitals in a mining patent are conclusive evidence of the extent and boundaries of the claim; other evidence may be admitted to determine the location of the monuments and boundaries called for by the patent.</p> <p>8. Injunction — Tbespass.</p> <p>One who, within the District of Alaska, trespasses upon the tide lands not subject to- location under the mineral laws of the United States, may be enjoined from sinking shafts thereon, and causing an increased flow of water into, and threatening the complete flooding and irreparable injury to, lower levels excavated by an adjoining mine owner underneath the same tide lands in following his vein or lode beyond his boundary line.</p>

<p>Adverse suit over conflicting mining locations in aid of an application for the patent in the Land Office.</p>

<p>1. Mortgage — Future Advances — Open Account.</p> <p>Burns made a note and mortgage upon the property in controversy to secure both present and future credit from Young. He made a payment consisting of drafts and gold dust sufficient at that time to pay the amount then due, but before the value of the deposit of gold dust was known from the assay office, he procured further advances, and afterwards sold the mortgaged property to the plaintiff, who brought this suit to cancel the mortgage, upon the allegation that it had been paid and discharged by the gold dust and drafts. IHeld, that the payment was on an open account secured by note and mortgage.</p>

<p>Suit against Justice of the Peace for Damages.</p>

<p>-Application to the judge to sign bill of exceptions.</p>

<p>x. Public Lands — Quieting Title.</p> <p>One wlio is in possession of a lot on tlie public lands in Alaska, and using the same for purposes of trade or residence, may maintain a suit to quiet bis title thereto.</p>

This is a motion for a new trial. The case is an action •of ejectment, and was tried before a jury, who found in favor of the plaintiff, and gave him a verdict for $68o damages.

By charter party contract entered into at Nome, Alaska, between the general manager of the Alaska & Chicago Commercial Company and Minor Bruce, the latter chartered the schooner Arthur B. under date of May 14, 1901, for the summer season. The contract was made between the parties at Nome, and it is recited in the charter that the schooner was then lying on the beach near Nome, Alaska.

This is an application by the defendant to vacate and set aside a judgment obtained by the plaintiff against the defendant by default, and to permit the defendant to answer upon the merits. Motions of this kind are favorably considered by the court in all proper cases, but there are cases where the court, acting in its sound discretion, will not permit judgments to be vacated to allow the defendant to come in and defend.

This is an application for a writ of mandamus to compel the defendant, as ex officio treasurer of the school board for the incorporated town of Nome, to pay a warrant drawn by the school board in payment of petitioner’s services as janitor in the public schools. The warrant was presented* and payment refused, although the treasurer is shown to-have then had sufficient funds properly applicable to its payment if the contention of the plaintiff is sustained.

<p>Motion for a Continuance.</p>

This is an action to quiet title to a town lot in Nome. Plaintiff shows in his complaint that he first entered upon the lot on the morning of July I, 1899, having come ashore from a vessel the same morning; that he set stakes at its four corners; that the lot was 50x100 feet square; and that he immediately entered into the actual use and occupation of the lot, and has at all times since remained in possession.

<p>1. Vendob and Purchaser — Fraudulent Conveyances.</p> <p>One who purchases real estate for a mere nominal consideration, with knowledge of a prior sale and of a prior unrecorded deed, made in good faith, and for a valuable consideration, is not a bona fide purchaser for value. Nor was he a “subsequent innocent purchaser in good faith, and for a valuable consideration,” such as is protected by section 98 of the Civil Code of Alaska (Act June 6, 1900, c. 786, 31 Stat. 505).</p>

<p>Libel to recover advanced freight charges not earned and for freight retained by the vessel.</p>

<p>1. United States Commissioners— Costs — Courts.</p> <p>Where a commissioner assumes to act as a police magistrate under the authority of town ordinances, and to impose fines, and forfeitures, and costs, in enforcement of such ordinances, for crimes not recognized by the laws of Alaska, he has no right to retain the “costs” after having paid over the “fines and forfeitures.” There is no law or rule to justify his paying the “costs” to the United States.</p> <p>2'. Estoppel — Mandamus.</p> <p>Where the commissioner receives costs by virtue of his assumed jurisdiction to enforce town ordinances, he is estopped to deny the authority of the town and retain the “costs.” He must pay them over to the town, and may be compelled to do so by mandamus.</p>

It appears that on June 4, 1901, C. D. Rogers, as referee, allowed the claim of George W. Garside and William Winn in the amount of $880, as a preferred claim against the estate of the said Sharick, including a further sum for costs ; a part of the order being as follows: “And it is further ordered, adjudged, and decreed said claim is secured by a mortgage upon all the bankrupt’s estate in custody of the trustee herein, and situated in the store known as the Alaska Jewelry…

<p>1 Admiralty — Failure op Voyage.</p> <p>Where a vessel took freight and passengers for Kotzebue Sound, but wholly failed to make the voyage, and discharged both at Nome, ,the sailing point, and they were not afterward forwarded, held, that upon the total failure of the voyage the passengers are entitled to have the return of their passage and freight money.</p> <p>2. Libel — Services on Land — Wages.</p> <p>One who assists in digging ice, snow, and sand from around a vessel lying on the beach at her home port, performed under contract with the charterer, is not entitled to a lien upon the vessel therefor.</p>

<p>1. Pleading — Negligence.</p> <p>A complaint for damages through negligence, which states that plaintiff was injured in unloading freight from a vessel to the wharf, and briefly describes the relative positions of the vessel and wharf, the defective appliances used, and points out the defects therein, and the acts constituting the negligence, is good against demurrer.</p> <p>2. Negligence — Vice Principal.</p> <p>A mate of a ship, intrusted with the work of discharging the cargo upon a wharf, and having control and supervision of the ship’s appliances for that purpose, the entire manner of using which was left to his judgment and discretion, is a vice principal of the defendant vessel owner.</p> <p>8. Negligence in Unloading Vessel.</p> <p>Though appliances for unloading the cargo of a vessel may be suitable and sufficient at one stage of the'tide, if used when the tide is so low as to render their use in raising heavy loads dangerous, it becomes negligence for which the owner is liable.</p> <p>4. Contributory Negligence.</p> <p>The. plaintiff could not be charged with a degree of contributory negligence, such as would defeat recovery, simply because he knew the appliances were defective in the manner in which used, unless a reasonably intelligent or prudent man, under like circumstances, would have known or apprehended the risks and danger which the use of the defective appliances would indicate.</p>

<p>1. Justice of the Peace — Appeal—Default—Judgment.</p> <p>The defendant filed a formal answer in the justice’s court, but did not appear or offer any evidence on the day of trial. Upon the testimony of plaintiff, and in the absence of the defendant, the justice rendered judgment for plaintiff. Defendant appealed, and upon a motion to dismiss the appeal in the District Court it was held that defendant’s unexplained failure to appear at the trial was an abandonment of his answer, and that judgment was properly rendered against him, and that he had no absolute right of appeal to and trial in the District Court. Appeal dismissed.</p>

<p>1. Mines and Minerals — Contract—Grub-Stake Contract.</p> <p>A grub-stake contract was made between Hollister and two' other parties at Santa Barbara, Cal., but, after arriving in Alaska, one of these parties for himself and as the agent of the other verbally released Hollister from the grub stake. Hollister afterward located the mine in question. Held, that neither the-grub-stake parties nor an assignee had any interest in the location.</p>

<p>1. Licenses — Meat Market — Mercantile Establishment.</p> <p>Within tie meaning of tlie license laws of Alaska, a corporation engaged in the wholesale cold storage and sale of all kinds; of meats for the public generally, as well as for its own meat markets, is a mercantile establishment, and not a meat market,, and must pay license accordingly.</p>

<p>1. Statute of Limitations.</p> <p>Where a cause of action accrued, in the state of Oregon, of which state the defendant was a resident, more than six years prior to the time at which action is brought, and the defendant removed to the District of Alaska admittedly less than six years prior to the time the action was brought, held, that the statute begins to run, not from the date the cause of action accrued in Oregon, but from the date of the removal of defendant to Alaska.</p> <p>3. Same.</p> <p>Statutes of limitations, so called, affect the remedy, but not the right of action. Necessarily, therefore, the lex fori must control in all matters of procedure.</p> <p>3. Same.</p> <p>The statute of limitations of this jurisdiction cannot begin to run until there is found some one within the jurisdiction of the forum' capable of being sued.</p>

<p>Petition for Refund of Excessive License Fee.</p>

<p>1. Limitation of Actions — Mines and Minerals.</p> <p>The 10-year statute of limitations begins to run in favor of one in adverse possession of a part of a mining claim from the time of the location, and not from the date of the patent. The proviso at the end of section 4 of the Code of Civil Procedure (Act June 0, 1900, c. 786, 31 Stat. 334) held to have no meaning or effect in Alaska.</p> <p>2. Mines and Minerals — Ejectment—Quieting Title.</p> <p>A mining locator acquires a present vested estate in his claim, good against the world, which he may defend by ejectment or a suit in equity to quiet title.</p>

<p>1. Real Actions — Building—Lien.</p> <p>Tire owner of a building wbo permits another to place it upon-his lot and build it into other permanent buildings does not thereby acquire an interest in the real estate, nor does he acquire a lien in equity for the value thereof.' He must bring his: action at law to recover its value.</p>

This cause, having been orally argued by the proctors and counsel for the respective parties, was thereupon submitted to the court upon the testimony and depositions of the several witnesses and the briefs of counsel. An examination of the whole evidence discloses what seems to the court to be a somewhat unusual character of testimony.

This action was originally brought by plaintiff, Russell, to quiet his title to a mining claim described in the complaint as No. i above discovery on Kasson creek in the Cape Nome mining district. After the cause had been sent to the referee to take testimony, it appeared that Niebling was an interested party, and he was joined, with his consent, as a plaintiff, and the cause proceeded.

<p>Ejectment by town to recover possession of alley from trespassing claimant.</p>

<p>Libel in personam to recover salvage for services performed in saving two barges and contents on St. Michael Island, Alaska.</p>

On the 26th day of April, 1898, at Seattle, King county, Wash*., Albert Speer, Adolph Binswanger, A. J. Lawrence,. Samuel Henninger, Charles Coburn, and O. T. Collins made, signed, and acknowledged an agreement of copartnership, as-they called it, whereby they agreed to jointly locate and work mines in Alaska until October 1, 1899, and that all mines located by either party during that period in Alaska should become the property of the copartnership.

<p>1. New Trial — ’Evidence—Verdict.</p> <p>When there is a conflict of testimony, the court ought not to set the verdict of a jury aside and grant a new trial, even though the judge would have reached a different verdict upon the same evidence. When, however, the jury renders a verdict upon evidence insufficient to justify it, or in violation of the law, it is the duty of the judge to set it aside and grant a new trial.</p>

<p>1. Public Lards — Mires and Mining — Town Site — Adverse Suit.</p> <p>Tiie owner of a town lot in Alaska, unpatented, lying within the exterior boundaries of a mining claim, may not adverse an application for a patent for said mining claim, under sections 2325, 2326, Eev. Sit. [U. S Oomp. St. 1901, pp. 1429, 1430], and cannot maintain an action in a court of competent jurisdiction in support of such adverse. Contra, Young v. Goldsteen (D. C.) 97 Fed. 303.</p> <p>3. Mines and Mining — Public Lands — Department oe Interior— Jdrisdiction.</p> <p>Under its power to dispose of the public domain, the Department of the Interior has sole jurisdiction and power to determine the mineral or nonmineral character of lands so held for disposition. The court has no such jurisdiction.</p> <p>8. Same — Town Site — Protest.</p> <p>The owner of a town lot in Alaska, unpatented, lying within the exterior boundaries of a mining claim, may contest the mining location and determine the character of the ground by a protest filed in the land office.</p> <p>4. Public Lands — Executive Order — Reservation</p> <p>The acts of the Secretary of the Navy in reserving parts of the public domain are, in legal effect, the acts of the President. A portion of the public lands in Alaska set apart by order of the Secretary of the Navy, and used by that department for public purposes connected with the navy, constitutes a valid reservation by the executive.</p> <p>6. Mines and Minerals — Discovery—Reservation.</p> <p>A discovery of mineral within a tract of land reserved by proper authority, and used for naval purposes, is without effect and void, and will not sustain a location of a mining claim. The discovery of such mineral within the boundaries of such reservation will not sustain a mineral location which lies partly within and partly without such reservation. The whole mining claim is void.</p>

This suit was begun May 4,1895. The plaintiffs allege possession of the property in dispute by themselves and their grantors from the year 1881 down to the present time. It seems that application and survey for patent of the town site of Juneau was made in 1893; that in July, 1898, after the patent for the town site was obtained, a deed was made by T. R. Lyons, town-site trustee, to.the plaintiff Lewis, and another deed in 1900 to the defendant.

This action is brought by the plaintiff to restrain defendant from building a wharf from the shore line of Gastineau Channel out to deep water, and the plaintiff company complains that steamship company, by building a wharf across a direct line from the shore, crosses certain tide waters over which the Ferry & Navigation Company claims a possessory right, whereby the plaintiff company would be obstructed in the use of its possessory holdings, and it is without remedy in the…

<p>Motion to quash writ of arrest in a civil action issued and served on Sunday.</p>

The defendant was fined for carrying on the business of a transfer company. He appealed, admitting the facts, but urged that the law under which the penalty was imposed was unconstitutional and void.

This action is brought by the plaintiff company to restrain the defendants from building upon or occupying any portion of the space between the shore end of the plaintiff’s wharf .at Haines Mission and the building owned by the defendant Dalton, and situated, as appears from the evidence, 15 feet and xo inches in a northerly direction from the most northerly stringer of said wharf.

<p>Motion for a new trial.</p>

<p>1. Records — Deeds—-Mortgages.</p> <p>Under section 98 of the Civil Oode of Alaska (Act June 6, 1900, c. 786, 31 Stat. 506). mortgages must he recorded with the same effect as deeds and other conveyances. An unrecorded mortgage is void as against an innocent purchaser in good faith for value, and without notice of the existence of the mortgage.</p>

<p>Motion to dismiss for want of jurisdiction.</p>

<p>Suit in equity to quiet title to mining claim.</p>

<p>1. Appeal — Ab an donment — J urisdtction.</p> <p>Plaintiffs were allowed an appeal from an order of court dissolving an injunction against the defendants, but tbe order provided that, if an indemnifying bond of $10,000 was not given by defendants witbin 10 days, the injunction should stand. The bond was not given, and the injunction was not dissolved, and the appeal was thereby abandoned; the cause proceeding as if no such order had been made, and without objection by either party.' Held, upon objection of defendants after judgment on the merits, that no appeal had been allowed or taken, and that the court had jurisdiction to enter judgment.</p> <p>2. New Trial — Evidence—Judgment.</p> <p>Where a new trial is granted because wrong findings of fact and conclusions of law were drawn from the testimony, it is not necessary or proper to require or permit the evidence to be taken de novo, but the court, should make correct findings and conclusions from the evidence already taken, and render judgment thereon.</p>

Application of the town of Nome to intervene in a suit brought by the applicant for a mining patent under section 2325, Rev. St. [U. S. Comp. St. 1901, p. 1429], against an adverse claimant.

<p>1. Admiralty — Evidence—Seamen.</p> <p>A seaman’s claim for a contract salary must be supported by a fair preponderance of proof, where it is attempted to secure an unconscionable sum for a minimum service.</p>

<p>1. Municipal Corporations — Assumpsit—Street Improvements.</p> <p>Where resident property owners of the town of Nome petitioned the common council to improve the street in front of their property, specifying the kind and character of improvement, and saw the work and labor done and the materials furnished in compliance with their written request, held, that the town-might recover the reasonable value of such work and materials in an action of assumpsit under their implied contract to pay.</p>

<p>1. Injunction — Jurisdiction.</p> <p>A temporary injunction or restraining order will not be -granted until it affirmatively appears that the court has jurisdiction.</p>

<p>1. -Evidence — Presumptions.</p> <p>Illegality is never presumed; on the contrary, everything must be presumed to have been legally done until the contrary is proved.</p> <p>2. Forfeiture — Evidence.</p> <p>Courts will never resolve a doubt, either of law or fact, in favor of a forfeiture of property. The intention of the law to forfeit the estate must be so clear as to leave no room for doubt. Equity often interferes to relieve against forfeitures, but never to divest estates by enforcing them. A forfeiture will not be declared unless the law so expressly declares.</p> <p>3. Foreign Corporations — Contracts—Rescission.</p> <p>On October 16th, defendants gave their note to the Ames Mercantile Company, a foreign corporation, which had not yet filed its articles, statement, and consent of agent required by chapter 23 of the Civil Code of Alaska (Act June 6, 1900, c. 786, 31 Stat, 528). On the same day the defendants made a mortgage to Ames,, the plaintiff, to secure the payment of that note and other contemplated indebtedness. The corporation filed its articles, etc.,, on October 20th, and thereafter plaintiff brought suit to foreclose the mortgage. Defendants seek to avoid their note, because it was made to the corporation in advance of their compliance with the statute. Held, that it was a voidable contract only, and could only be avoided by rescission and returning the consideration.</p>

<p>1. Attachment — BAin—Estoppel.</p> <p>When the defendant in an attachment proceeding gives the bail bond provided tor in sections 149 and 150 of the Code of Civil Procedure (Act June 6, 1900, e. 786, 31 Stat. 356), instead of the redelivery bond provided for by section 145 (31 Stat. 355), he thereby admits the validity and necessity of the attachment, and waives any and all claims for damages for an alleged wrongful issuance thereof.</p>

<p>Objections to report of referee in admiralty</p>

<p>Contempt proceeding before the court without a jury; defendants accused of jury-packing; found guilty, and fined $300 each.</p>

<p>Habeas corpus to test constitutionality of the license laws of Alaska.</p>

<p>1. Pleadings — Default—Judgment.</p> <p>Plaintiff failed to reply to an affirmative, defense in the answer. An intervener, claiming to he a purchaser pendente lite, was permitted to file a reply. On trial the intervener failed to connect himself with the location by purchase or otherwise. ■Held, that defendant was entitled to a default and judgment on the pleadings.</p> <p>2. Forfeiture — Pleading.</p> <p>The court will not declare a mining location' void for conflict with a prior location not pleaded.</p> <p>2. Evidence — Forfeiture</p> <p>A mining location will not he declared forfeited on mere suspicion, The evidence upon which to base a forfeiture must be clear and convincing.</p>

<p>1. FORFEITURES— EVIDENCE.</p> <p>Forfeitures are deemed odious in the law, and the evidence to sustain them must he clear and convincing. Every reasonable doubt will be resolved in favor of the validity of a mining claim, in opposition to a forfeiture.</p> <p>2. Mines and Minerals — Monuments—Stakes.</p> <p>One center stake at each end of a claim, which is located from a common base by serial number as one of a well-known group, with written notices on both stakes, supported by general custom of miners, held sufficient.</p> <p>3. Mines and Minerals — Boundaries—Monuments.</p> <p>Where, by a general custom among miners, the boundaries of the location are marked by only one center stake at each end of the claim, the boundaries are formed by end lines at right angles to a center line drawn from center stake to center stake, and by side lines parallel to and equidistant from the center line, and far enough therefrom to embrace 20 acres within the parallelogram.</p> <p>4. Abandonment — Evidence.</p> <p>Abandonment is a question of intent, and can be sustained only by clear and convincing proof.</p>

<p>1. Estates — Administrator—Appeal and Error.</p> <p>An administrator, as such, has no power to appeal from an order of the District Court either allowing or rejecting a claim against the estate. Only a party in interest, such as an heir or creditor, may take such appeal. An administrator may appeal in the interest of an heir or creditor, when so authorized.</p> <p>2. Estates — Claims—Partn ership .</p> <p>A claim arising out of a mining partnership with the deceased may be presented like any other claim, allowed, and paid, without bringing suit to establish or dissolve the partnership.</p> <p>8. 1. a cs — Claims—Judgment.</p> <p>When a judgment has been obtained against an estate upon a claim due, the administrator admitting that he has money on hand to pay it, the money was ordered paid into court.</p>

<p>1. Appeal and Ebrob — Justice op the Peace.</p> <p>A notice of appeal from a justice of the peace to the District Court of Alaska must be entitled in the proper court, directed to the adverse party, identify or refer to the judgment so distinctly that the appellate court can identify the judgment from the notice, contain the date of the judgment, the names of the parties plaintiff and defendant, and, when it is a money judgment, the amount thereof; and, if for the possession of real or personal property, the notice should indicate which, and describe the property. The notice in this case held insufficient. Appeal dismissed.</p>

On the gth day of September, 1902, after complaint had been properly filed in this action, the clerk of this court at the request of plaintiff issued a summons.

<p>Motion to dismiss appeal from justice’s court because the undertaking on appeal was void.</p>

<p>Motion to dismiss appeal from justice’s court because the undertaking on appeal was void.</p>