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The action is one upon a contract resting in parol. Section 6 of chapter 2 of the Code of Civil Procedure (Carter's Annotated Codes, p. 146) raises a bar to an action upon contracts of the parol class after the lapse of six years from the time the action accrued. The complaint states that at the time the action accrued, to wit, December 1, 1896, the parties to the action were residents of the state of Montana. Paragraph 5 of the complaint contains this additional allegation:

"That before said cause of action became barred by the statute of limitations of said state of Montana and the laws thereof respecting the time within which civil actions must be commenced therein, the said defendant, Thomas Farrell, left the said state of Montana, and has never returned thereto, and that the cause of action is not now barred by the statute of limitations of the state of Montana."

This paragraph contains a violation of one of the cardinal rules of Code pleading. Its vice lies in the conclusion of law couched in the proposition "that this cause of action is not now barred by the statute of limitations of the state of Montana."

Inasmuch as the demurrer does not admit a conclusion of law, all of the paragraph which states other than facts may be properly treated as apart from the pleading and unwritten therein. With the reference of the pleading to the statute of limitations of Montana eliminated (and it must be if we adhere to the rules of pleading), we must seek an answer to the inquiry, is there any provision of our statute of limitations which will suspend the operation of the plain provision of section 5 of the chapter which has been herein quoted, and save the present action from the bar of the limitation therein? Section 15 of the chapter does provide that the statutory term of limitation may be extended when the cause of action lies against a person "out of the district or concealed therein at the time when it accrues." That section, however, applies only to a state of facts or a condition wherein a cause of ac

tion matures against a person or persons whose status is that of a resident or residents of Alaska.

In this case when the cause of action accrued the defendant was a resident of Montana, hence a nonresident of Alaska. That this is the true construction of the section has been decided by the Supreme Court of Oregon in McCormick v. Blanchard, Or. 236, and reaffirmed and followed in Crane v. Jones, 24 Or. 420, 33 Pac. 869, in construing the same section in terms in the Oregon Code in connection with our section 24 (section 26, B. & C. Comp.). This construction fully coincides with my own conception of the meaning of the section.

Section 24 expressly relates to nonresidents of the District of Alaska only, and declares, in substance, that if an action is barred in the state, territory, or country where the cause of action arose, an action upon the same subject-matter or cause of action will be barred under our laws. And it will not be contended that the section can be taken to include the converse of this statement, namely, that if not barred by the statute of the foreign jurisdiction, the action will not be barred by the local statute for Alaska. But the complaint in this case is construed upon the theory that the statute of limitations of Montana must control the statute of Alaska. Hence said section 24 does not cover the facts of the case under consideration. Reverting, then, to the only provision of our statute governing the facts of this case which are properly pleaded -namely, section 6, already quoted-the conclusion is the certain and necessary one, that at the end of six years from December 1, 1896, the plaintiff lost his rights to the remedy of this action.

This ruling is in full accord with the generally accepted law that, unless the law of the forum recognizes the statute of limitations of the foreign state wherein the cause of action accrues, the law of the forum or the local law must determine whether an action is or is not preserved to the party having the

cause of action. This upon the principle that all statutes of limitations affect the remedy, and hence that the law of the forum must govern in deciding whether or not the remedy or the action may be had. Bank of U. S. v. Donnally, 8 Pet. (U. S.) 372, 8 L. Ed. 974; McElmoyle v. Cohen, 13 Pet. (U. S.) 327, 10 L. Ed. 177; Bacon v. Rives, 106 U. S. 99, 1 Sup. Ct. 3, 27 L. Ed. 69; Railway Co. v. Letson, 2 How. (U. S.) 497, 11 L. Ed. 353. The demurrer is, for the reasons herein stated, sustained.

REVENUE MIN. CO. v. BALDERSTON.

(Third Division. Valdez. January 31, 1905.)

No. 102.

1. WATERS AND WATER COURSES-PUBLIC LANDS-APPROPRIATION. The first appropriator of water on the public domain for purposes of mining is entitled to the exclusive use, of so much thereof as is necessary to carry on his work.

[Ed. Note. For cases in point, see vol. 48, Cent. Dig. Waters and Water Courses, § 16.]

2. SAME-ACTUAL USE-NECESSITY.

An unreasonable monopoly of the waters upon public lands will not be sustained where the party manifestly undertakes to control the same unfairly to prevent others from using them.

[Ed. Note. For cases in point, see vol. 48, Cent. Dig. Waters and Water Courses, § 7.]

3. SAME.

A subsequent appropriator of excess or waste waters upon the public domain for purposes of mining must not do so in a manner to injure the first appropriator's property therein or his use thereof.

[Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Waters and Water Courses, § 15.]

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The organic act of May 17, 1884, c. 53, 23 Stat. 24. and the twenty-sixth section of the amendatory act of June 6, 1900, c. 786, 31 Stat. 330, extended to Alaska "the laws of the United

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States relating to mining claims and the rights incident thereto." Held, that these provisions extended to Alaska so much of the water act of July 26, 1866, c. 262, 14 Stat. 253; section 2339, Rev. St. 1878 [U. S. Comp. St. 1901, p. 1437]-as relates to the appropriation of water on the public domain for mining pur

poses.

Plaintiff and defendant have submitted an agreed case to the court for decision and judgment, under the provisions of chapter 28 of the Code of Civil Procedure (sections 248-250, p. 195, Carter's Ann. Codes), involving the right of possession and use of certain described water rights for mining purposes near Cape Yaktag. The agreed statement of facts is signed by both plaintiff and defendant and verified by each according to law.

It is admitted that eight qualified locators therein named in May, 1902, located seven groups of mining claims of 160 acres each, and prior to the beginning of this controversy conveyed all the described claims to the plaintiff. It is also specially admitted:

"That long prior to the said defendant's entry upon and into the possession of said premises for mining purposes, as hereinafter stated, the said locators and their grantees, including the said plaintiff, had performed in the location of each of said mining claims and in holding and maintaining the possession of the same all of the acts and things required by the laws of the United States, and by the local rules, regulations, and customs of miners in the mining and recording district in which said claims were situated necessary to make valid locations, and hold and maintain the continuous possession of each of said placer claims as placer mining ground."

It is also admitted that all of said claims are valuable for mineral, containing placer gold in quantities to pay a reasonable profit for mining in a large way. It is admitted that plaintiff was in possession and had expended more than $25,000 in improvements and development work on the claims before the defendant laid claim to any interest therein; that said improvements consist of a pumping plant capable of lifting 2,000 gal

lons per minute to a height of 25 feet, and ditches and flumes to carry the water for mining purposes; also a steam sawmill to cut lumber and fuel, a tramway, and houses for its business and employés, of whom there are 17.

It is also agreed:

"That the said plaintiff commenced its active mining operations upon its said premises on or about the 22d day of July, 1903, and has ever since and still is pursuing its placer mining operations upon said premises with a large force of men and a large amount of materials."

It appears that the claims in question lie on a flat coastal plain, extending from the low tide line of the Pacific Ocean beach back to a range of mountains parallel with the beach; that two lagoons or ancient river beds lie within the exterior. boundaries of the claims, and that streams of water descend from the near-by mountains, and, flowing through the claims, enter these lagoons. It is also agreed: "That but a small portion of said premises can ever be worked as placer mining premises at any profit whatever without the use and employment of large plants of machinery and expensive and extended improvements," and it is admitted that plaintiff has adopted a systematic and well-adapted plan of working such sands by the creation of reservoirs by dams across and in the lagoons, by floating barges therein, and the hoisting of the sands by machinery, and extraction of the gold by the use of the waters of certain of the creeks, ditches, and flumes. And it is agreed:

"That at no time are the waters flowing over said premises sufficient to work said entire mining premises to the extent and upon the plans and purposes of said plaintiff, as above detailed."

It is agreed that on April 24, 1904, the defendant entered upon the premises so claimed by plaintiff, and began to construct ditches to draw off the waters of the lagoon nearest to the ocean beach, with the intention of using it to wash the gravels and sands of the premises in possession of plaintiff, and to extract the gold therefrom, without plaintiff's consent, and

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