lands in which the inchoate right of dower is claimed in this case was acquired by the husband long since June 6, 1900. The intervener has, therefore, no dower right, inchoate or otherwise, recognizable or enforceable by the decree of this court, until the death of her husband. Intervener also asserts an inchoate right of heirship in the mining claim. She has no inchoate or other interest as an heir of her husband's lands, until (1) his death, (2) without leaving lineal descendants. Section 168 Civ. Code; Carter's Ann. Alaska Codes, pp. 384, 385. The dower right is asserted in this case to her husband's interest in a placer mining claim, sold and conveyed by the husband during his lifetime. This identical question arose in Montana under a statute identical in that regard with that in force in Alaska prior to June 6, 1900, and the Supreme Court of the United States held, flatly, that a wife has no dower interest in a mining claim sold by her husband during his lifetime; that a husband's interest in a mining claim is "not subject to any possible incumbrances of the wife by way of dower in the premises." Black v. Elkhorn Min. Co., 163 U. S. 445, 16 Sup. Ct. 1101, 41 L. Ed. 221. This decision states the general rule, which is decisive in this case-a wife in Alaska has no inchoate or other dower right in an unpatented mining claim held in the name of her husband, and conveyed by him during his lifetime. The allegations of fraud and conspiracy in the application for intervention are barren, and do not aid it. They are asserted in support of a right which does not exist in favor of the intervener. In his memorandum brief counsel for inter vener says: "A person owning real estate may convey the same and pass his title thereto without reference to what his thoughts and purposes and intentions may be, except as against creditors and others who have some estate, interest, or right, vested or contingent, in or to such realty." 2 A.R.-26 In this case the court holds that the application for intervention does not show that intervener has an estate, interest, or right, vested or contingent, in or to such realty; that it does not state a ground for intervention. Whether or not she can, in a proper action for support or divorce, allege facts sufficient to support a decree to set aside the sale as fraudulent need not be considered. Gregory v. Filbeck (Colo.) 21 Pac. 489. What the court now decides is that she cannot have a decree declaring it void upon the claim of inchoate right of dower and heirship set up in her application. Demurrer sustained, and judgment accordingly. REDDEN et al. v. HARLAN et al. (Third Division. Fairbanks. May 22, 1905.) No. 297. 1. MINES AND MINERALS-LOCATION-PLACER CLAIM. Three acts are necessary to constitute a valid placer mining location: (1) discovery, (2) marking, and (3) recording. As between the United States and the locator, it is immaterial in what order these acts occur. If all three are performed before other rights intervene, it is sufficient. [Ed. Note. For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, §§ 27, 33, 42, 45.] 2. SAME DISCOVERY. If discovery precedes marking and recording, they relate back to that act, but if the acts of staking and recording are performed first, the validity and life of the claim begins only with the act of discovery. 3. SAME-POSSESSION-TRESPASS. A prospector in possession of a mining claim will be protected from trespass for a reasonable time, while he continues to search for mineral. 4. SAME TRESPASSES-INJUNCTION. Plaintiffs staked and recorded a placer mining location, but made no discovery. Eleven months thereafter defendants staked and recorded the same ground and began to sink a discovery shaft. The plaintiffs ask the court to enjoin the defendants while plaintiffs sink a shaft to complete their prior claim. Held, that equity aids the vigilant and not those who sleep on their rights. The application denied. On June 19, 1904, plaintiffs, Redden and Dempsey, respectively, set stakes and claimed placer mining claims Nos. 8 and 9 below discovery on Cripple Creek, in the Fairbanks mining district, Alaska, and by filing their location notices within the time limited by law. They made no discovery of mineral on either claim at any time. On May 10, 1905, defendants formed an association of eight persons for the purpose of locating a tract of mining land of 160 acres. On the 10th they posted a notice of location of the "Midway Placer Claim" of 160 acres, including therein the two claims above mentioned. It is not shown where this notice was posted, other than that it was on the Midway claim. On the 11th they marked the boundaries of the association' Midway claim so that they could be readily traced, but did not then or since make a discovery of mineral on any part of the tract. On May 10, 1905, plaintiffs entered into a partnership to work the two claims in common, and Dempsey and one Smith started to the claims to begin work in prospecting. Smith reached the claims Nos. 8 and 9 on the 10th, and Dempsey on the 11th, and together they began the work of making camp and sinking a prospect hole. On May 11th Kettleson, for defendants, entered on the Midway claim of 160 acres. He saw Dempsey arrive on 8 and 9 on that day, at 3 o'clock in the afternoon, with his pack and axe. On the 11th and 12th he made camp for the defendants on the Midway. Defendants' employés were engaged on the 11th in hauling mining machinery toward the Midway claim, and reached a point only a mile distant therefrom. On the 12th the machinery was not moved. On the 13th they reached the upper end of No. 8 with and set the boiler, and began to sink a prospect hole. From the affidavits on the application for an injunction the court finds that plaintiffs were in the actual possession of Nos. 8 and 9 on May 11th, at work and claiming under their original staking and recording of June 19, 1904; that defendants entered on said claims on May 13th under their location of the Midway, and that both parties continued in possession and engaged in a race to reach bed rock and make a discovery of the first mineral until both were temporarily enjoined in this case. On May 16, 1905, while both parties were at work on 8 and 9, and before either had made a discovery of mineral, plaintiffs brought this action to restrain defendants from seeking discovery on Nos. 8 and 9, and to establish their prior and exclusive possessory right thereto. John F. Dillon, for plaintiffs. WICKERSHAM, District Judge. Three acts are necessary to the perfection of a valid placer mining location or entry in Alaska (1) A discovery of mineral on the ground covered by the location; (2) a marking of its boundaries so that they can be readily traced; and (3) a filing of the notice of location for record in the recording district in which the claim is situated within 90 days from the date of the discovery of the claim. As between the United States and the locator it is generally immaterial in what order these necessary acts are performed. The marking of the boundaries may precede the discovery and recording, or the recording may be first, and if all three are performed, though not within the time fixed by law or the rules and regulations, before other rights intervene or attach to the land, it is sufficient, and the claim will be valid. 1 Lindley on Mines (2d Ed.) § 330; Nevada Oil Co. v. Home Oil Co. (C. C.) 98 Fed. 673. A prospector who shall have made a prior and peaceable entry upon a portion of the unoccupied public domain not exceeding 20 acres in area as a placer mining claim, and in an effort to discover mineral thereon, will be protected in his possession from intrusion and trespass for a reasonable time, and so long as he continues in good faith to work and search. there for mineral in compliance with the spirit of the mining laws. Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560, 28 L. Ed. 1113; Doe v. Waterloo Min. Co., 70 Fed. 455, 17 C. C. A. 190; Crossman v. Pendery (C. C.) 8 Fed. 693; Field v. Grey (Ariz.) 25 Pac. 793; 1 Lindley on Mines (2d Ed.) §§ 216, 217. This is a suit in equity praying for an injunction to prevent the defendants from sinking a shaft on a tract of ground marked off by plaintiffs. Plaintiffs show that they marked off the tract on June 19, 1904, that the defendants entered on May 13, 1905, and allege that unless restrained defendants will make a prior discovery of mineral on the claim, and thus acquire a prior right to it under the mining laws. It is not shown to the court why the plaintiffs did not make the discovery or sink the shaft for that purpose during the preceding 11 months before defendants' entry. They allege that defendants have placed mining machinery on the claims, and with its superior working power will reach bed rock before plaintiffs can do so by thawing and sinking by the much slower process of wood fires. They make no attempt to show, and do not claim, that they did not have a reasonable time and opportunity to have made a prior discovery with wood fires, and the court will not presume, in the absence of proofs, that they could not have done the necessary excavations for that purpose during the 11 months elapsing after staking the ground and prior to the entry of the defendants. |