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Statement of the Case.

MCKINLEY CREEK MINING CO. v. ALASKA UNITED

MINING CO.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE

DISTRICT OF ALASKA,

No. 37. Argued April 15, 16, 1901.-Decided January 6, 1902.

There is no prejudicial error in the ruling of the court below on the ad.

mission of testimony. Assignments of error cannot be based upon instructions given or refused

in an equity suit. The locations are valid so far as they depend upon the discovery of gold. The notices as set forth in the opinion of the court constituted a sufficient

location. Grantees of public land take by purchase. In Manuel v. Wolff, 152 U. S. 505, it was decided that a location by an

alien was voidable, not void, and was free from attack by any one except the Government.

This is a bill in equity brought by the appellee company, who was plaintiff below, to establish title to two placer mining claims, against a like claim of appellant company to the same ground.

The bill alleged that “Peter Hall, William A. Chisholm, James Hanson, John Dalton and Dan. Sutherland, partners under the firm name and style of the Alaska United Mining Company, bring this their bill of complaint against C. G. Lewis, Bert Woodin, Edwin. Hackley, Alex. McConaghy, Carl A. West, W. S. Hawes, Chas. P. Leitch, and C. P. Cahoon, partners under the firm name of the McKinley Creek Mining Company, and show to the court that the said parties, both plaintiffs and defendants, are citizens of the United States and residents of the District of Alaska."

The bill also alleged ownership of the claims by reason of location, exploration and discovery of precious metals, and the compliance with the local rules and regulations of the mining district. Also possession of the claims and the erection of val

Statement of the Case.

uable improvements thereon, and forcible entry upon that possession by defendants (appellants) with an attempt and avowed purpose to drive plaintiffs (appellees) therefrom, and unless restrained they would proceed to the execution of said threats. An injunction was prayed for.

The defendants admitted their citizenship, but denied the citizenship of plaintiffs on the ground that the defendants had not sufficient knowledge to form a belief thereto, and traversed in like manner or absolutely the other allegations of the bill, and alleged title by reason of prior discovery by members of the company. The answer also alleged prior possession by members of the company from which they were dispossessed by the plaintiff, and claimed that as to the controversies thus arising “defendants are under the law and practice of this court entitled to a jury trial for the trial of the title to said claims and each of them, and to that end and purpose have commenced in this honorable court a suit in ejectment for the trial and determination of the title to said property in an action at law and according to the usage and practice of this court, and until the trial and determination of such trial at law by this honorable court the defendants are entitled to a restraining order against said plaintiff company and its individual members restraining them and each of them from the commission of the wrongful acts herein complained of.”

A temporary injunction was prayed against plaintiffs (appellees).

There was a reply filed to the new matter of the answer and to the cross complaint.

A jury was impanelled to try the case on motion of plaintiffs, no objection being made by defendants, and after hearing ine evidence and receiving instructions from the court the jury rendered a verdict for plaintiffs, as follows: “We, the jury in the above-entitled and numbered cause, find for the plaintiffs, Peier Hall, Wm. A. Chisholm, Dan. Sutherland, James Hanson, and John Dalton, partners under the firm name and style of the Alaska United Mining Co., the claims in controversy.”

The defendants in due time moved for judgment, notwithstanding the verdict, upon the ground that on the evidence the

Statement of the Case.

defendants were entitled “to a judgment in their favor for the possession of the mines and property in controversy.” The motion was denied. Subsequently defendants moved for a new trial (1) upon

the testimony in the cause, the rulings therein and exceptions taken, and upon the pleadings and proceedings in cause No. 967; (2) the insufficiency of the evidence to justify the verdict; (3) error in refusing to give certain instructions requested by defendants (appellants).

The motion was denied and the following judgment was entered :

“This cause came on to be heard at this term upon the bill, the answer and cross bill of defendants and the replication thereto of plaintiffs and the proofs in the case and upon the request of defendants, duly made by their counsel, Messrs. Winn & Weldon, the issues arising upon said pleadings and proofs were submitted to a jury of good and lawful men, duly selected, impanelled and sworn, to wit, J. Montgomery Davis and eleven others, who, having heard the said proofs adduced in the case and having been instructed by the court as to the law, and having heard the argument of counsel, retired in charge of the bailiff to consider of their verdict and after due deliberation had returned into open court the following verdict, to wit:

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“We, the jury in the above-entitled and numbered cause, find for the plaintiffs, Peter Hall, William A. Chisholm, Dan. Sutherland, Jas. Hanson and John Dalton, partners under the firm name and style of the Alaska United Mining Company, the claims in controversy.

(Signed) “J. MONTGOMERY Davis, Foreman.

“Which said verdict was by the court received and ordered recorded, and the finding therein contained upon the issues in said cause were by the court approved and adopted.

“Now, therefore, upon consideration of the said bill, the answer thereto and the cross complaint of said defendants, the replication of plaintiffs, and the said proofs, and by reason of the verdict of the jury thereon, approved and adopted by the

Opinion of the Court.

court, it is, upon consideration thereof, ordered, adjudged and decreed as follows, to wit:

“That the said defendants, C. G. Lewis, Bert Woodin, Edwin Hackley, Alex. McConaghy, Carl A. West, W. S. Hawes, Charles P. Leitch and C. P. Cahoon, a mining copartnership under the name and style of the McKinley Creek Mining Co., have not nor have any of them any right, estate, title or interest whatever in or to those two certain mining claims, lands and premises described in the said bill of complaint and in the said answer and cross complaint of defendant and hereinafter more particularly described; that the title of the plaintiff, The Alaska United Mining Company, a corporation composed of Peter Hall, William A. Chisholm, Dan. Sutherland, Jas. Hansen and John Dalton, thereto is good and valid, and that the said defendants and each of them be, and they and each of them are hereby, forever enjoined and restrained from asserting any claim whatso ever in or to said mining claims, lands and premises adverse to said plaintiffs, and that the said plaintiffs be, and they are hereby, quieted in their possession, use and enjoyment of the same."

A description of the claims followed.

Objection was made to the judgment, and the defendants claimed that the only judgment which could be entered was one “ restraining the defendants from the acts complained of in the bill of complaint pending the trial of cause No. 967, The McKinley Creek Mining Co. v. The Alaska United Mining Co., which is a suit in ejectment now pending in this court and at issue, the record and files of which are hereby referred to and made a part of this objection.”

From the judgment entered the case is here on appeal.

Mr. S. M. Stockslager for appellants. Mr. George C. lleard was on his brief.

Mr. L. T. Michener for appellees. Mr. W. W Dudley, Mr. J. F. Maloney and Mr. J. II. Cobb were on his vrief.

Mr.JUSTICE McKenna, after stating the case. delivered the opinion of the court.

The assignments of error present for review the rulings of

Opinion of the Court.

the court upon the admission of testimony, the correctness of the court's instructions to the jury and the sufficiency of the evidence to justify the judgment.

We may dispose of the rulings on the admission of testimony summarily. They are not precisely indicated by counsel in their brief, and to review them with a detail of the evidence would unduly extend this opinion. It is enough to say that we have examined the evidence and considered the rulings, and do not discover any prejudicial error in the latter. Besides, it is questionable if such rulings are reviewable in an appellate court. Wilson v. Riddle, 123 U. S. 608; Huse v. Washburn 59 Wis. 414; Peabody v. Kendall, 145 Ill. 519.

For an understanding and consideration of the other contentions of appellants it is only necessary to indicate the propositions which the evidence of the parties tended to establish. On the part of the plaintiffs (appellees) the evidence tended to show that Dan. Sutherland, James Hanson, William Chisholm and Jack Dalton, who compose the appellee company, and Peter Hall and one Hawes and C. P. Cahoon, were working at Pleasant camp in Alaska for William Chisholm on and prior to October, 1898. Prospecting on the river Porcupine was resolved on to be done by Hanson, Sutherland and Cahoon, and the following power of attorney was given to Cahoon :

“Know all men by these presents that Peter Hall, William Chisholm, William S. Hawes, of Pleasant camp, British Columbia, have made, constituted and appointed, and by these presents do make, constitute and appoint, C. P. Cahoon, of Pleasant camp,

British Columbia, our true and lawful attorney, for us and in our names, place and stead to locate a mining claim in the Territory of Alaska.

“In testimony whereof we have hereunto set our hands and seal this 4th day of Oct., A. D. 1898.

“ PETER HALL. [SEAL.] “ Wm. A. CHISHOLM. (SEAL.]

"WM. S. HAWES. (SEAL.] “Signed, sealed, and delivered in the presence of

“Dan. SUTHERLAND.
“J. HANSON."

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