Volume 3 — Alaska Reports

On demurrer to amended complaint. The complaint herein four separate counts, each based upon a different and each of which drafts has come into the possession the plaintiff by assignment. Each draft was drawn at Juin the district of Alaska, by the defendant corporation the defendant Nowell at his address in Boston, Mass. Each draft bears acceptance The defendant first and fourth counts of the complaint on the ground that each fails to state a cause of action.

<p>1. Beneficial Associations (§ 16*) — Fraternal Orders — Mandamus —Societies.</p> <p>The Servian Benevolent Society, located at Angels’ Camp, California, claimed control over the Douglas Camp, located, at Douglas, Alaska. The latter after its organization as a branch of the Angels’ Camp parent, had become a member of the national organization known as the Servian Benevolent Brotherhood Association, the governing hoard of which was located in Chicago, Illinois. Angels’ Camp society also became a member of the national organization on equal footing with the Douglas camp. The president of Angels’ Camp brought mandamus to compel Douglas Camp to permit him to inspect the books and records of Douglas Camp. Held, that Douglas Camp was under the jurisdiction of the national organization in Chicago, and not under the Angels’ Camp, and the application of the president of Angels’ Camp for mandamus to inspect the books and record denied.</p> <p>[Ed. Note. — For other cases, see Beneficial Associations, Dee. Dig. § 16.*]</p>

<p>Motions for new trial and in arrest of judgment.</p>

Petition for a peremptory writ of mandamus to compel the-common council of the town of Nome to provide for and conduct, or cause to be conducted, an election according to law of a school board of three members for the Nome school district, consisting of a director, a treasurer, and a clerk, to-hold office one, two, and three years, respectively, and to afford the electors of said district at such election the opportunity to express by vote their choice of members of said…

<p>1. Justices of the Peace (§ 160*) — Appeal—Notice—Sufficienct.</p> <p>On appeal from a justice to the district court, the notice of appeal given was that defendant appealed “from the judgment rendered and entered in the said U. S. Commissioner’s court * * * on the 12th day of February, 1900, in favor of said plaintiff and against the said defendant, and from the whole thereof.” Helé, that it was insufficient, and the appeal dismissed on motion.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 579-591; Dec. Dig. § 160.*]</p> <p>2. Justices oe the Peace (§ 160*) — Appeal—Notice—Requisites.</p> <p>A notice of appeal from a justice’s court is a special judicial process, whose sufficiency must appear on its face. It must be adequate, and there must be proper service.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 579-591; Dee. Dig. § 160.*]</p> <p>3. Appeabance (§ 9*) — Pleading—Special Appearance.</p> <p>While it is the usual practice for a party who appears for a special purpose to so state, yet a plea cannot be classed as general or special according to its wording. The substance, purpose, and effect of the appearance must be the guide.</p> <p>[Ed. Note. — For other cases, see Appearance, Cent. Dig. §§ 42-52; Dec. Dig. § 9.*]</p>

Plaintiff brings this action against the principal and sureties on a certain indemnity bond, to recover moneys which he was obliged to pay by reason of ■ a levy and sale made by him as United States marshal, under a judgment in favor of R. L. Sabin, the principal on said bond and one of the defendants herein. No service was had on the defendant Sabin, but the action was pressed against the other defendants, who were the sureties on the bond.

The defendant was arrested upon a warrant issued by the municipal magistrate for the town of Nome on the 10th day of February, 1906.

This is a suit in equity wherein the plaintiffs demand: Damages for the unlawful diversion of all the waters of Quartz creek, a tributary of the Kougarok river, in the Kougarok mining district, Alaska, from their natural channel of flow through and over mining claims Nos. 11 and 12 above Dahl’s discovery on said creek; equitable relief (a) by an order of court decreeing that plaintiffs are entitled to have all of the waters of Quartz creek flow in their natural channel over…

Motion to retax costs. The defendant in this case was charged before Tars Gunderson, commissioner for the Kougarok precinct, sitting as a justice’s court, with a violation of section 67 of the Penal Code, in trespassing on lands in the possession of another. Defendant demanded a jury trial, and was subsequently convicted by a jury of six in said justice’s court.

On May 21, 1905, James McCloskey, with a gang of workmen, entered upon the tide lands in front of blocks O, P, and Q of the city of Juneau, and proceeded to drive piles thereon. This plaintiff, claiming these tide lands by virtue of the own- - ership of the abutting uplands, immediately instituted this suit to enjoin defendant from the further prosecution of the work begun by him. 'A temporary restraining order was granted.

On demurrer to indictment. John Naylon, the defendant in this case, stands indicted, under the Alaska road law. 33 Stat. 391. Naylon is a civilian employé of the army at Ft. William H. Seward, the United States military post near Haines Mission. His employment is in connection with the Third Infantry, U. S. A., and he lives within the bounds of the post or military reservation.

This action is brought by the plaintiffs for the restitution of a certain lode mining claim known as the “Princess,” located on or near Gold creek, adjoining the town of Juneau, in the Harris mining district. These plaintiffs allege that in the year 1896 they and one J. Thomas Willson became the owners of this mining claim in fee simple absolute; the paramount title of the United' States alone intervening. Subsequently Willson died, and his interest passed to his estate.

<p>1. Fish (§ 3*) — Navigable Waters — Tide Lanbs.</p> <p>Plaintiff claimed the exclusive right to erect and maintain a fish trap in the navigable waters of Lynn Canal, an arm of the sea, below the line of low water, but immediately in front of land which he had purchased from the government, by a location with soldiers’ additional scrip. Held, that while the ownership of the abutting upland carries with it the right of access to deep water, and the consequent right to wharf out, it in no manner gives the owner or holder the right of fishing in tidal waters.</p> <p>[Ed. Note. — For other cases, see Fish, Cent. Dig. §§ 3, 6-8; Dec. Dig. § 3.*]</p> <p>2. Fish (§§ 3, S*) — Tibal Waters — Regulation.</p> <p>' The right of fishing in tidal waters is a public right, common to all, and in which all are entitled to- participate. Congress may enact laws for the regulation and control of the right of fisheries in the territories.</p> <p>[Ed. Note. — For other cases, sqe Fish, Cent. Dig. §§ 3, 6-8, 16; Dec. Dig. §§ 3, 8.*] .</p> <p>3. Fish (§ 3*) — Tibal Waters — Fishing Rights.</p> <p>The .right of fishing in tidal waters at a particular spot is dependent upon, first, a priority of possession; and, second, upon the maintenance of that possession.</p> <p>[Ed. Note. — For other cases, see Fish, Cent. Dig. §§ 3, 6-8; Dee. Dig. § 3.*]</p>

This is an appeal from an order of the probate court for the Juneau precinct, overruling a demurrer to an affirmative answer filed in that court. As disclosed by the transcript on appeal, the facts set up are these: For a number of years prior to April 20, 1899, Edward O. Decker, the intestate herein, and J. M. Decker, were copartners in business at Juneau and Dyea. Edward O. Decker was married, but there were no children.

Demurrer to complaint. Plaintiffs allege that on and prior to November 1, 1905, they were, and ever since have been, and now are the owners and in the lawful occupation and possession of the certain placer mining claim described in their complaint, containing 160 acres, and allege that said claim was duly marked and staked upon the ground, and notice of location thereof duly recorded, and discovery of gold thereon duly made.

<p>1. Courts (§ 200*) — Jurisdiction—Probate Courts.</p> <p>Plaintiff brought suit in the district court as the heir at law of Decker, deceased, against the administrator of the estate and the sureties on his bond, to recover in her own name alleged losses accruing to the estate. Held, that the Alaska Code has vested in the commissioners as ex officio probate judges probate “jurisdiction within their precincts, subject to the supervision of the district judge,” that such supervision by the district judge-is appellate only, and that the district court has no original jurisdiction in probate matters.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 200.*]</p> <p>2. Executors and Administrators (§ 534*) — Action on Bond — Conditions Precedent.</p> <p>An action upon the administrator’s bond in which it is sought to recover for alleged misconduct of or misappropriation of property by the administrator will not lie until the remedies of the probate court have been exhausted; in other words, until the probate court has found such misconduct or misappropriation to exist, and the administrator has refused or neglected to comply with the orders of the probate court made upon such findings. Thus will the liabilities of the sureties be fixed.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. f§ 2458-2461; Dec. Dig. § 534.*]</p>

This is a suit in equity to quiet title. The plaintiffs allege that they are the owners and in possession of placer bench claim No. 10 below discovery, right limit, first tier, on Dome creek, in the Fairbanks mining district, Alaska; that they are the owners in fee of said premises as to all persons save and except the United States; that the defendants claim an estate or interest in said property adverse to plaintiffs; that the claim of the defendants is without any right…

The controversy in this case arises over an overlap between creek claim No-. 6A below discovery, and bench claim No. 6, right limit, below discovery, on Esther creek, in the Fairbanks mining district, Alaska. From the evidence offered before the court on the trial on August 30, 1906, and the exhibits and ■maps filed therewith and used therein, the court finds the following to be the facts in the case : 1. Location and Marking the Boundaries.

Demurrer to the complaint, by D. W. McKay, one of the defendants, based on the one ground that it does not state facts sufficient to constitute a cause of action. The action is to foreclose three claims for mechanics’ or laborers’ liens on a mining claim or mine designated as “No. 9 above discovery on Big Hurray creek,” a tributary of Solomon river, in the Cape Nome mining and recording district, Alaska.

This is a suit to foreclose six laborers’ liens on a placer, mining claim. The plaintiff and five other miners performed labor in running tunnels and otherwise developing No. 13A below discovery on the right limit of Cleary creek, in the Fairbanks mining district. They filed separate liens. Five of his colaborers assigned to Wimbish, and all the liens are included in this suit.

The complaint in the foregoing action states a cause of action, in brief, as follows: That on September 1, 1905, Jakey Berger and the plaintiff, Johnson, took a lease of the Franklin bench claim situate in the Cape Nome mining district, Alaska, on Dry creek, from Elise Eutter, lessor, by the terms of which the plaintiff and the defendant Berger acquired the right of possession of said claim, with the right to work and mine said claim and to extract gold and precious metals…

This suit arises over certain lots in the town of Skagway. Held: * * * upon their payment to him at the time of the delivery of said deed 25 per cent, of the value of said lot.” The price agreed upon was the assessed valuation for the year 1900 as it appeared on the books of the assessor of the town of Skagway.

This is a suit for divorce. Plaintiff seeks a dissolution of the marriage contract upon the ground of cruel and inhuman treatment by his wife. Plaintiff and defendant met in the city of New York, in January, 1898, at a hospital in which plaintiff was a patient and defendant a nurse. On March 9, 1898, they were married.

This is a suit in ejectment, brought by the plaintiff to recover the possession of placer mining claim No. 17 below discovery on Tenderfoot creek, in the Tanana mining and recording district, Alaska. When the case was called for trial, counsel for plaintiff and defendants, by stipulation in open court, waived a jury trial, whereupon the jury was discharged and the case was tried to the court instead of jury.

Plaintiffs bring this suit to quiet title to two ¡lode mining ■claims, to wit, the Copper King and the Poorman, situated •on the north shore of Kasaan Bay, about one mile and a half from Kasaan Bay post office, on Prince of Wales Island. The testimony, except that of the plaintiff Gallagher^ was taken before a referee.

1 below discovery and the Hilty fraction adjoining, prior to the location of the Cascaden placer by John Cascaden, and from showing by said witnesses generally the character of the deposits found upon the claims mentioned, prior and subsequent to the location by Cascaden, and the results of mining operations,, and the effect of finding of a run of coarse gold on the bench opposite to discovery, and on the creek claims and bench claims above and below the Cascaden placer, the…

Plaintiff brings this suit to recover a judgment against the defendants on a principal note for $2,500 and upon five lesser notes for $75 each. Each note draws interest at 12 per cent, after maturity. The notes are secured by mortgage, and the suit is brought to foreclose the mortgage. The defendants admit the making of the notes and plead usury.

This is a suit in equity, seeking relief by injunctidn and for damages alleged to have been caused upon a placer mining claim known as the “Woods Fraction Claim,” located on Gold creek, about two miles from the town of Juneau, at or near the foot of Snow Slide gulch. The damages are alleged to have been the result of the construction of a dam by defendant across Gold creek just below the claim in question.

<p>1. Mandamus (§ 61*) — Justice oe the Peace.</p> <p>Mandamus will lie to compel a justice of tbe peace to act as a committing magistrate in matters witbin bis jurisdiction.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 122; Dec. Dig. § 61.*] 1</p> <p>2. Statutes (§ 206*) — CONSTRUCTION.</p> <p>It is a well-established rule of statutory construction that statutes shall, whenever possible, be interpreted so that no part shall he ineffectual.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 2S3; Dee. Dig. § 206.*]</p> <p>3. Indictment and Information (§ 4*) — Proper Form of Accusation —Violation of Liquor Laws.</p> <p>Prosecutions for selling liquor without a license may be begun, under section 474 of the Code of Criminal Procedure of Alaska, either by information filed by the marshal dr deputy, or by the district attorney or deputy before the commissioner as justice of the peace, or by indictment by the grand jury, and the prosecuting officer has power to determine which method he will employ. When he does determine the method, it is the duty of the commissioner, as ex officio justice of the peace, and he may be compelled by mandamus, to act and give effect to the remedy provided by statute and chosen by the prosecuting officer. ■</p> <p>[Ed. Note. — For other cases, see Indictment and Information,. Dec. Dig. § 4.*]</p>

<p>1. LANDLORD AND TENANT (§ 170*)-INJURIES FROM DEFECTIVE CONDITION of Premises — Nuisance.</p> <p>It is a well-settled rule of law that, whenever a nuisance exists upon the premises at the time of letting, the landlord, by letting the premises in such condition, consents to the continuance of the nuisance, and is liable for all injuries to third persons from its continuance by the tenant. A tenant is not liable for a nuisance created by his landlord and not by himself.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 685-689; Dec. Dig. § 170.*] (</p> <p>2. Navigable Waters (§ 37*) — Tide Lands — Conveyance.</p> <p>Owners of abutting upland conveyed the tide land. 1 The widow of the vendor, deceased, brought suit to recover possession, claiming that the right of ingress and egress was an incorporeal hereditament, and as such runs with the land, and cannot be severed and conveyed. Denied.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Dec. Dig. § 37.*] • !</p> <p>3. Navigable Waters (§ 43*) — Wharves—Abatement—Laches.</p> <p>Plaintiff brought suit to abate certain wharves, erected by defendants ten years before, on tide lands owned by th,em in front of her property, as a nuisance. Held, under the circumstances of the case, plaintiff was estopped by laches.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Dec. Dig. § 43.*] • !</p>

This action is in ejectment, brought to recover possession ■of three lots in the incorporated town of Nome, Alaska, designated in the plat of the townsite of Nome prepared under the supervision of… Held: and still is possessed, occupied, and worked, as a placer mining claim in acpordance with the mining laws of the United States, and that the patent to the townsite trustee did not convey any right, title, or interest, or right of possession, in or to any of the lots.

Daniel A. McCarty, the administrator, located Discovery placer mining claim on Fairbanks creek, in the Fairbanks mining district, Alaska, on September 12,1902. Sarah J. McCarty was his wife at that time.

On motion to quash service of summons, defendant appears specially.

<p>1. GUARDIAN AND WARD (§ 55*) — CARE OF ESTATE — LOSS—LIABILITY.</p> <p>Where a guardian in good faith and under the order of the probate court deposits funds belonging to his ward in a bank outside the territory, and such fund is lost by a failure of the bank during a financial stringency, the guardian is not liable for the loss.</p> <p>[Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. § 254; Dee. Dig. § 55.*]</p> <p>2. Appeal and Error (§ &11") — Review—Presumptions—Jurisdiction — Probate Court.</p> <p>Where the records of the probate court were destroyed by fire, the district court will, on considering an appeal, presume that the lower court performed the necessary acts to confer jurisdiction. '</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Bee. Dig. § 911.*] ’</p>

<p>.1. Mines and Minerals (§ 97*) — Mining Partnership — Grubstake Contract.</p> <p>A grubstake contract, neither vague, uncertain, inequitable nor unjust, enforced.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 19, 122; Dee. Dig. § 97.*]</p>

<p>1. Gaming (§ 17*) — Contracts—Validity.</p> <p>Plaintiffs were carpenters, and contracted with the defendants to erect a small frame building in the rear of a saloon owned by one of the defendants. Plaintiffs performed their contract and sued to recover the agreed price. Defendants sought to evade payment upon the evidence that plaintiffs knew the building was to be used as a gaming house. Held, that the defendants cannot repudiate their contract and escape payment on that ground, and thus secure to themselves advantages flowing from their own violation of the law.</p> <p>[Ed. Note. — For other cases, see Gaming, Cent. Dig. § 32; Dec. Dig. § 17.*]</p> <p>2. Contracts (§ 346*) — Action for Breach — Pleading—Variance.</p> <p>The fact that plaintiffs’ proofs show a less amount to be due under the contract than is set up in the complaint is not such a variance as to be fatal to their whole cause of action.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1739; Dec. Dig. § 346.*]</p>

This matter comes before the court on defendant’s demurrer to the amended complaint. The action was commenced-December 22, 1906, under section 257, c. 27-, of the Civil Code-of Alaska (31 Stat. c. 786, p. 533).

On July 1, 1896, the Berner’s Bay Mining & Milling Company, a corporation existing under the laws of the state of Maine, and doing business in Alaska, was the dwner of all the real property in litigation in this case, and bn that day mortgaged the same to the International Trust Company, of Massachusetts, to secure the payment of bonds in the sum of $500,000, issued and sold for its benefit.

Motion to quash service of summons made on defendant Sutherland in this case. The motion is based upofi the fact that he is a nonresident; that his place of residence is in New York; that he voluntarily came into Alaska as a witness in the-trial of a case entitled “McFarland v. Alaska-Perseverance-Company,” of which defendant corporation he was ¡president, and in the trial of which he was a necessary witness.

On demurrer to complaint. The bill of complaint alleges that plaintiff and' defendant Sutherland entered into a contract of copartnership for promoting and disposing of mining properties in Alaska; that plaintiff should have one-third of the net profits in money, bonds, and stocks received by Sutherland, and out'of the net profits received by Pearce he should pay Sutherland one-half.

This is a suit in equity to restrain the defendant fijom diverting'for mining purposes the waters naturally flowing in a non-navigable stream across a placer mining claim belonging to the plaintiffs, and for damages. I In October, 1880, the miners in the near vicinity of the present site of Juneau, Alaska, discovered gold in the Silver Bow basin, where the property in litigation in this case is situated.

<p>1. Eminent Domain (§ 275*) — Remedies of Owners of Property-Injunction — Railroads.</p> <p>An injunction will not issue to restrain the building of one railroad across another on grade, where both parties are in possession, both claiming title to the same ground under conflicting titles, and where the evidence shows no serious injury to the eompany applying for the injunction.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Dec.' Dig. § 275.*]</p> <p>2. Eminent Domain (§ 275*) — Remedies of Owners of Property— Public Lands — Railroads.</p> <p>Where the plaintiff railroad claims possessory title to terminal grounds under Act May 14, 1898, e. 299, 30 Stat. 409 (U. S. Comp. St. 1901, p. 1412), and seeks to enjoin the defendant railway, who claims possessory title to the same ground by virtue of alleged prior valid oil locations, from entering thereon, held, the court will not grant an injunction against defendants until the title, then pending before the Land Department, is first settled in that department.</p> <p>[Ed. Note. — For other eases, see Eminent Domain, Dee. Dig. § 275.*]</p> <p>3. Railroads (§ 80*) — Right to Use Way of Other Railroad — Canyon, Pass, or Defile.</p> <p>Where the contour of the ground is such as to prevent a second railroad from passing without crowding upon the first railway’s rights of way, the court will enforce the canyon, pass, or defile clause, though there may in fact be no canyon walls.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 204-208; Dec. Dig. § 80.*]</p>

This is a suit in equity to declare a trust in tlie Hubbard-Elliott copper mines on the Kotsina river, Alaska,' in favor of the plaintiff. ¡ The amended bill alleges: That on the 14th day of August, 1894, the plaintiff and Henry Curtis Elliott were intermarried, and were husband and wife until divorced on or about January 22, 1903.

<p>1. Pleading (§ 362*) — Motions—Striking Out Matter.</p> <p>The plaintiff was injured on the defendant’s railroad. A contract of release of damages was entered into, whereby the defendant agreed to furnish plaintiff certain employment in consideration of a waiver of damages. After a time defendant discharged plaintiff, who brought this action. Meld, that the action is on a breach of the contract, and not for damages, and that allegations of wrongful and negligent acts on the part of the defendant in relation to the original injury and matters which go only to the character of the release of damages are irrelevant and immaterial, and should be stricken from the complaint on motion.</p> <p>[Ed. Note. — For other cases, see Pleading, Dec. Dig. § 362.*]</p>

<p>1. Specific Performance (§ 38*) — Contracts—Certainly.</p> <p>Equity will not enforce specific performance of a contract, unless its terms are definite and certain. There must have been a clear and mutual understanding of, and a positiye assent to, its terms on the part of each party thereto.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 61-85; Dec. Dig. § 28.*] ,</p>

This suit was brought to restrain the defendants from impounding the waters of Gold creek, and from interfering with the course and flow of the waters of the creek. The specific performance of a certain contract is also sought. A few days prior to the trial of the cause, a supplemental complaint was tendered, and finally amended and filed. The suit was then tried, a jury being impaneled to assist the court in passing upon certain questions of fact.

Plaintiff entered upon the homestead of one Heine, adjoining the town of Fairbanks, and took peaceable possession of a square block of ground thereon. He claimed the right to hold the same as public land, and leased portions thereof to other persons, who erected cabins and severally occupied separate lots with defined boundaries.

This is a contempt proceeding. The affidavit upon which it is based was made by Jeremiah Cousby, Assistant United States District Attorney, and filed and presented to the court on October 23, 1907, and it alleges: That on the 8th day of November, 1906, an action was commenced in this court, entitled “Robert H. Fleming, Plaintiff, v. R. E. Leber, Administrator of the Estate of Victor Baubet, Deceased, and R. E. Leber, Defendants,” and No. 622, by the filing of the complaint…

Plaintiff by this suit seeks to restrain these defendants, their agents and employés, from going upon a certain tract of land some three miles from the head of Resurrection Bay, in the Seward recording precinct, which he alleges to be his homestead, for the purpose of cutting timber therefrom to be used in the construction of the defendant’s railroad. He also seeks to recover damages for the alleged wrongful and unlawful cutting and destruction of standing and growing timber.

By this suit plaintiffs seek to quiet their title to two certain adjoining copper lode claims, the All-American lode mining claim No. 1 and All-American lode mining claim No. 2, in the Valdez recording district, Alaska. The situs of these claims is Solomon Gulch, some four or five miles south from the point where Solomon Gulch creek enters Valdez Bay.

<p>1. Towage (§ 11*) — Admiralty—Damage.</p> <p>A towing tug is neither a common carrier nor an insurer, and all that is required is that those in charge of her shall exercise reasonable care and shill in everything that is done; that is, the care and shill that a prudent navigator would employ in a similar service. The direct and immediate cause of the injury to the tow must have been the failure of the tug to exercise reasonable shill and care, and where that is exercised no recovery can be had.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. §§ 11-23; Dec. Dig. § 11.*]</p>

This suit is for personal injuries received by the libelant, a stevedore, when engaged in discharging cargo on board the British steamer Boveric. At the time of the injuries the ship was under charter from its owners, Andrew Wier & Co., the respondents, to the Northwestern Steamship Company.

This is an action to recover wages, brought by the plaintiff, for himself and as assignee of many others, against the defendant Williams and three other persons as mining partners. -A jury was waived, and the case submitted to the court. The evidence discloses that Kelley, Blondo, and Broome were mining partners, that the plaintiff and his assignors worked in their mine, and that the partners owed them large sums for 'wages.

This is a suit to foreclose a mortgage dated October 23, 1905. It purports to secure an indebtedness of $7,500, payable as hereinafter stated, with interest at 12 per centum per annum after default in payment of the mortgage debt.

A writ of mandamus is sought in this cause to require the defendants, comprising the School Board for the Sitka School District, to admit the plaintiffs to the Sitka school; it being contended by the plaintiffs that, by virtue of the provisions of the seventh section of the act of Congress entitled “An act to provide for the construction and maintenance of roads, the establishment and maintenance of schools, etc., in the district of Alaska,” and approved January 27, 1905 (33…

<p>1. Pleading (§ 248*) — -Amendments—Change of Cause of Action.</p> <p>An amendment will not be allowed wbieh substantially changes the cause of action stated in the former pleading.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 686-709; Dec. Dig. § 248.*]</p>

This suit is brought under the authority of section 475, tit. 2, c. 46, of the Code of Civil Procedure for Alaska.

The plaintiffs bring this action in ejectment to recover a certain tract of placer ground, to wit, the upper 350 feet of the bench claim, first tier, opposite the upper 350 feet of creek claim No. 1 below discovery, right limit, of Dome creek, in the Fairbanks recording district. Plaintiffs set up two causes of action. In each of them they allege their ownership in fee of the tract described, as against all persons save and except the United States.

Plaintiffs bring this suit to quiet their respective titles to certain lots or parcels of land situated in the settlement or town known as Haines Mission, lying on the westward shore of Uynn Canal, at what is known as Portage Cove. The land in controversy is all embraced in United States survey No. 573.

Plaintiff brings this action to replevin a 10-stamp mill of the Allis-Chalmers type, lying crated on the mining claims known as the Aurora Borealis properties, near Yankee Cove, in this division of the district of Alaska.

This action is in equity, and was brought to obtain a decree (a) that the plaintiff is the owner by prior appropriation and diversion of the waters of Nome river to the extent of 2,100 miners’ inches, to be diverted at its intake on Nome river about 500 feet below the mouth of Buffalo creek; (b) for an accounting of the damages sustained by the diversion by defendants of water so belonging to the plaintiff; (c) for an injunction, temporary and perpetual, restraining the…

Petition for municipal incorporation of Haines Mission. The petitioners herein are asking that the settlement now known as Haines Mission, situate on the western shore of Lynn Canal, be incorporated as a municipality, to be known as the town of Haines, by virtue of the provisions of chapter 1778, Act April 28, 1904, 33 Stat. p. 529, entitled “An.act to amend and codify the laws relating to municipal corporations in the district of Alaska.” The proceeding was instituted by…

• The defendant is sued in the district court for the Second division, district of Alaska, in a criminal action brought to recover the statutory penalty for unlawfully prosecuting the business of a public wharfinger at Nome, within said Second division, without first having applied for and ’ obtained licenses from any district court in the district of Alaska, and without paying the license fee for conducting said business as required by section 460, c. 4, of the Code of…

Order to show cause why a writ of peremptory mandamus should no.t issue to the defendant, directing and commanding him to attend all meetings of the common council of the town •of Nome in his.capacity as a member of said council, and to faithfully exercise and discharge the functions of his said office until his successor shall be elected and qualified. Hearing had before the court upon the petition of plaintiff for the writ and the answer of defendant thereto.

<p>1. Pleading (§ 274*) — Amended or Supplemental Complaint.</p> <p>The plaintiff filed two amended complaints, and upon the trial offered a title to support the allegations of the amended complaint, which title was obtained subsequent to the bringing of the action, ¡but was not specifically alleged in either complaint. The evidence was objected to, and excluded. On motion for new trial, held, that a title obtained by plaintiff after the filing of his original complaint can only be made available by pleading it by way of a supplemental complaint. If not so pleaded, proof of it will be excluded on trial.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 832; • Dec. Dig. § 274.*]</p>

This is an action for separate maintenance of a wife, the plaintiff herein. The facts are sufficiently stated in the opinion.

<p>1. Pish (§ 16*) — Illegal Sealing — Forfeiture.</p> <p>A Japanese vessel, engaged in taking seals within one marine league of the Pribiloff Islands in violation of law, is within the jurisdiction of the district courts of Alaska, and subject to forfeiture.</p> <p>[Ed. Note. — For other cases, see Fish, Dec. Dig. § 16.*]</p> <p>2. Fish (§ 16*) — Illegal Sealing — Forfeiture.</p> <p>The pleadings of the owner admitted that the crew of his vessel was convicted for illegal sealing within the jurisdiction of the United States. Held, the admitted conviction on the criminal case was sufficient to justify a forfeiture of the vessel for a violation of the law.</p> <p>[Ed. Note.- — For other cases, see Fish, Dec. Dig. § 16.*]</p> <p>3. Fish (§ 16*) — Illegal Sealing — Forfeiture of Cargo.</p> <p>A Japanese schooner was arrested in the one marine league' zone around tbe seal islands. Her crew was found guilty, and the vessel forfeited for illegal sealing. Held, that sealskins found on board the vessel were forfeited as part of the cargo.</p> <p>[Ed. Note. — -For other cases, see Fish, Dec. Dig. § 16.*]</p>

This is an action to foreclose a mechanic’s lien against a building, and the lot of ground on which it stands, in Valdez, Alaska, being a one-story structure on a part of lot 5 in block 1 of the said town of Valdez. A default having been entered as to the defendant Clark, the cause came on regularly for trial between the plaintiff and the Valdez Bank & Mercantile Company, defendant.

This is an action to recover the possession of a certain lot or parcel of land, situate in the town of Valdez, in what is. known as the “Reservation Tract,” being a part of the government unappropriated and unclaimed public domain, opened for settlement to the citizens of the territory of Alaska on the 25th day of July, 1902. The facts are sufficiently stated in the opinion.

The defendant is a corporation organized under the laws of the state of Washington, and doing business in the territory of Alaska; i. e., mining>at Drier Bay, Knight’s Island.

This is an action to restrain the defendants Von Gunther from fencing and obstructing the use of certain town lot property in the town of Valdez, Alaska, claimed to have been conveyed to this plaintiff, through Adam Swan, by the defendants Yon Gunther.

Action in rem to recover damages for personal injuries received by libelant while at work as stevedore on said vessel in unloading cargo from the hold under a hatchway. This case was tried before the court on oral testimony of witnesses produced before the court and upon depositions.

Suit by David H. Cascaden against George F. Dunbar and others. On motion by defendants F. G. Manley and A. C. Rice to set aside the findings, conclusions of law, and decree after mandate on appeal, and on motion by plaintiff to alter, complete, and correct the findings, conclusion, and decree. Decree directed. ' -