"The said common council shall have and exercise the following powers: Subd. 4, To provide for the location, construction and maintenance of the necessary * sidewalks."
Subdivision 5 thereof provides how the council may exercise their powers, and at the same time the power is given it is provided that the common council shall exercise it as well as have it. Hence, under this amendment and the municipal laws of the district, the common council are virtually charged with the duty of the maintenance of the sidewalks, and where such duty is implied liability exists.
Section 334 of chapter 35 of the Alaska Code of Civil Procedure provides that:
"An action may be maintained against any of the public corporations in the district mentioned in the last preceding section [this includes towns incorporated under the municipal law of the district] in its corporate character and within the scope of its authority, or for an injury to the rights of plaintiff arising from some act or omission of such public corporation."
The complaint in this action charges injury to the rights of the plaintiff arising from an omission on the part of the public corporation, or the section quoted above, which is identical with that in the Code of Oregon, has been construed by the Oregon courts to include an action for damages occasioned to persons in consequence of the neglect of the corporation's officers to keep its streets and highways in repair. Sheridan v. City of Salem, 14 Or. 328, 12 Pac. 925. It is clear, therefore, that the municipal laws of the District of Alaska give the municipality, or rather its officers, the power to maintain sidewalks, and the consequent duty to exercise this power, and the Code of Alaska authorizes an action against a corporation for damages in an action of this character.
The demurrer should be overruled. Let an order to that effect issue.
Of property by insane persons, see "Insane Persons."
Of public lands, see "Public Lands."
Pleas of, disposed of before merits, see "Pleading."
"Case," definition of, see "Constitutional Law."
Distinction between equity and law abolished, see "Pleading"; "Quiet-
ing Title."
Limitation of actions, see "Limitation of Actions."
Pending, preserved by Act June 6, 1900, see "Courts."
1. Distinctions between law and equity abolished.
The distinction between actions at law and suits in equity
and the forms of all such actions and suits have been abolished
by statute in Alaska. There is but one form of action for the
enforcement or protection of private rights and the redress or
prevention of public wrongs, which is denominated a civil action.
-First Nat. Bank of Seattle v. Fish.....
.344
2. Uniting causes of action.
Act Cong. June 6, 1900, c. 786, 31 Stat. 321, relative to the
government of Alaska, in title 1, § 4, 31 Stat. 322, provides there
shall be a court of general jurisdiction in civil, criminal, equity,
and admiralty cases. Title 2, § 699, 31 Stat. 443, provides that
the District Court is a court of general jurisdiction, civil and
criminal, and also that it shall have admiralty jurisdiction.
Title 2, § 1, 31 Stat. 333, provides that the distinction between
actions at law and suits in equity, and the forms of all such
actions and suits, is abolished, and there shall be but one form
(637)
of action for the enforcement of private rights and the redress
and prevention of private wrongs, which is denominated a “civil
action." Title 2, § 84, 31 Stat. 345, provides that plaintiff may
unite several causes of action where they all arise out of cer-
tain causes of action, classified under seven heads. Title 2, §
369, 31 Stat. 394, provides that plaintiff in an action of an equit
able nature may unite several causes of action when they all
arise out of certain causes of action, classified under six heads,
and both of said sections provide that the causes of action so
united must all belong to one of these classes. Held, that a
cause of action at law cannot be united with a cause of action
in equity, or either with one in admiralty, so that it is improper
to unite a cause of action for foreclosure of a mortgage on a
vessel with one to enforce liens for wages of seamen against
the vessel.
-Bruce v. Murray, 123 Fed. 366, 59 C. C. A. 494.
Estates of decedents, see "Executors and Administrators."
Contracts of affreightment, see "Contracts."
Maritime lien for freight charges, see "Damages."
Suit in, cannot be united with law action, see "Actions."
Towage, damages, see "Shipping"; "Towage."
1. Jurisdiction for death on high seas.
A suit in admiralty cannot be maintained in a court of the
United States, either under the general maritime law or any act
of Congress, to recover damages for the death of a person caused
by negligence on the high seas.
-Williams v. Alaska Commercial Co......
2. Jurisdiction within three-mile limit.
The steamer Bertha engaged to tow the schooner Dora B. to
Lituya Bay, but owing to rough weather passed that port and
steered for Yakutat. Before reaching Yakutat, and while off
the coast of Alaska, the hawser parted. Instead of returning to
the tow and rendering further assistance, the Bertha kept on
her course, abandoning the Dora B., which was carried on the
coast and wrecked, and the deceased lost his life. Held, that it is
immaterial that the parting of the hawser happened over three
miles off shore and out of the jurisdiction of the court, it ap-
pearing that the disaster which caused the decedent's death
happened upon the shore within the three-mile limit and within
the jurisdiction of the court.
-Williams v. Alaska Commercial Co......
The admiralty court has no jurisdiction to enforce liens for
wages against a vessel, unless there is an actual seizure and
control of it by the marshal.
-Bruce v. Murray, 123 Fed. 366, 59 C. C. A. 494.
A maritime contract for the transportation of goods on board
a vessel operates reciprocally as a tacit pledge or mortgage to
the shipper for the conveyance and delivery of the goods accord-
ing to the contract, and of the goods themselves to the ship to
secure payment of the freight earned. The lien to the shipper
arises alike whether the contract of affreightment be by charter
party, by bill of lading, or by parol.
-Miners' Co-operative Ass'n v. Steamer Monarch....383
4. Rearrest of vessel after discharge.
The steamer Lavelle Young was seized on libel for seaman's
wages. The claimant gave a stipulation for her release in the
amount fixed by the court. Thereafter judgment for libelant was
entered, and the vessel ordered seized and sold to satisfy the
judgment. Claimants apply for the recall of the execution and
the release of the vessel. Held, a vessel discharged from arrest
upon giving bond or stipulation returns to her owner forever dis-
charged from the lien which was the foundation of the proceed-
ings against her, and the court has no power to order her rearrest.
-Allison v. Steamer Lavelle Young..
..104
In application for mining patent, see "Mines and Minerals."
ADVERSE POSSESSION.
Effect of, on public lands, see "Limitation of Actions."
Adverse possession of mining claim, see "Mines and Minerals."
Adverse possession for seven years, see "Statute."
1. Sufficiency of allegation in answer.
Where, in ejectment, defendant alleged title under a quit-
claim deed from S., specifically describing the property, and al-
leged that said parcel "is a part of the identical property which
is the subject of controversy in this action," and that since
the original entry on the lot by F. he and grantees, of whom S.
was one, had been in quiet, uninterrupted, open, and notorious
possession thereon, etc., the answer sufficiently alleged that de-
fendant claimed the land under the deed as color of title.
[Ed. Note. For cases in point, see vol. 1, Cent. Dig. Adverse
Possession, §§ 646-650.]
-Archer v. Beihl, 136 Fed. 113, 69 C. C. A. 101.
2. Sufficiency of evidence to sustain.
Where a quitclaim deed was claimed to have conveyed the
property in controversy to defendant, and possession of at least
a portion of the land in controversy was taken under the deed,
it was sufficient to give color of title, though there was nothing
contained therein showing that the grantor claimed any interest
in the property at the date of its execution.
[Ed. Note. For cases in point, see vol. 1, Cent. Dig. Adverse
Possession, §§ 415-427.]
-Archer v. Beihl, 136 Fed. 113, 69 C. C. A. 101.
Where, in ejectment, defendant claimed under a quitclaim
deed as color of title, and it was impossible under any construc-
tion of the deed to make its description fit the premises in-
volved in the action, it was error for the court to permit the
jury to find for defendant for the whole of the property in con-
troversy.
[Ed. Note.-For cases in point, see vol. 1, Cent. Dig. Adverse
Possession. §§ 463-464.]
-Archer v. Beihl, 136 Fed. 113, 69 C. C. A. 101.
3. Sufficiency of instructions.
Where, in ejectment, defendant claimed by adverse possession
under a quitclaim deed as color of title, it was error for the
court to charge that the jury might find, from the bare fact
that defendant testified that at the time he received the deed
the grantor put him in possession, that the grantor at that time
"had some right, title, or interest in the land, such as actual
possession," and that defendant "did obtain some sort of title
thereto by his acts and the surrender of possession by the other
parties."
-Archer v. Beihl, 136 Fed. 113, 69 C. C. A. 101.
4. Sufficient to sustain judgment.
A finding, in an action of ejectment by the owner of the legal
title to a mining claim to recover a portion thereof, that de-
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