pursuance thereof, defendant entered into possession, and oust-
ed and ejected the plaintiff from the premises, sufficiently
alleges a delivery of possession, under the Alaska statute (Code
Civ. Proc. § 75; Act June 6, 1900, 31 Stat. 344) requiring plead-
ings to be liberally construed.
-Pacey v. McKinney, 125 Fed. 675, 60 C. C. A. 365.
Under Carter's Civ. Code Alaska, § 303, providing that, in
an action to recover possession of real property, plaintiff, in
his complaint, shall set forth the nature of his estate in the
property, whether it be in fee, for life, or for a term of years,
etc., and that he is entitled to possession thereof, and that
defendant wrongfully withholds the same from him, to his
damage in such sum as may be therein claimed, plaintiff is
not required in such action to further state the nature of her
estate in the property.
-Brosnan v. White, 136 Fed. 74, 68 C. C. A. 642.
2. Judgment on the pleadings.
Plaintiff in ejectment alleged that she and S. went on the
premises in March, 1898, which were then unoccupied, and erected
a building thereon. Defendant alleged that on March 6, 1898,
the premises were unoccupied and unclaimed, and were entered
and appropriated by G., who thereafter conveyed to C., who
conveyed to R., who conveyed to defendant; that defendant
had no notice of plaintiff's claim; and that he had made
valuable improvements upon the property. Plaintiff replied,
admitting defendant's allegations as to entry on the unappro-
priated land by G. and his conveyance to R., and that defendant
had erected the improvements as alleged, but denied that it
was done without notice of plaintiff's interest, and denied that
S. conveyed to R. or that R. conveyed to defendant, and then
alleged that S. conveyed an undivided half interest to plaintiff,
who was then in possession as a tenant in common, and from
that time plaintiff continued to occupy the premises until
ousted by defendant as alleged in the complaint. Held that,
in the absence of a motion or demurrer, the departure in the
reply, with reference to the appropriation of the land, from
the allegation in the complaint, was not such as to justify the
trial court in rendering judgment for defendant on the pleadings.
-Brosnan v. White, 136 Fed. 74, 68 C. C. A. 642.
3. Pleading common source of title.
Where both parties to an action of ejectment claimed from
a common source, it was unnecessary for either to deraign title
from another source, or to pursue the chain of title further
back than their common grantor.
[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Eject-
ment, $$ 59-62.]
-Brosnan v. White, 136 Fed. 74, 68 C. C. A. 642.
In an action for possession against a tenant he answered
that he originally held under H., but that plaintiff's grantor
procured or pretended to procure a judgment in the municipal
court against defendant and H. for possession, and that the
lessee threatened to enforce such judgment, and prosecute de-
fendant in such court, which would have ruined defendant's
business, unless defendant paid such lessee $100, which he did;
that such municipal court was without legal existence or com-
petent jurisdiction, and no appeal could be taken therefrom;
and that it was impossible for defendant to reach a court of
competent jurisdiction to restrain the execution of the judg
ment. Held, that such allegations were insufficient to show
that the sublease was voidable, as procured by threats and duress.
-Piper v. Cashell, 122 Fed. 614, 58 C. C. A. 396.
5. Possession necessary to maintain.
The right to maintain an action in ejectment depends on the
possession of the property at the time the action was commenced.
and, where it is admitted that defendant was then in posses-
sion, is not defeated by the fact that plaintiff may have been in
possession at a time prior or subsequent thereto.
-Walton v. Wild Goose Min. & Trading Co., 123 Fed.
209, 60 C. C. A. 155.
6. Effect of findings of fact on waiver of jury trial.
Under Alaska Code (Act June 6, 1900, 31 Stat. 393, c. 38),
making certain provisions for the trial of actions of an equitable
nature, and providing that the section shall not be construed
to bar an equitable owner in possession of real property from
defending his possession by means of his equitable title, where
defendants pleaded an equitable title to an interest in a mining
claim sought to be recovered in ejectment, and prayed reforma-
tion of a deed to plaintiff's prior grantor for mutual mistake,
the trial court's findings of fact, on a jury being waived, did
not have the conclusive effect of a verdict of a jury.
-Shields v. Mongollon Exploration Co., 137 Fed. 539,
70 C. C. A. 123.
Where an action of ejectment, in which an equitable defense
was raised, was tried by the court without a jury, the court's
findings of fact, made on conflicting evidence, could not be re-
viewed on appeal, unless a serious and important mistake ap-
peared to have been made in consideration of the evidence or
in the application of the law.
-Shields v. Mongollon Exploration Co., 137 Fed. 539.
70 C. C. A. 123.
1. Sufficiency of complaint in.
A complaint to condemn a right of way for a water pipe line
alleged that a certain creek from its source to its mouth con-
tained large deposits of gravel containing gold in paying quanti-
ties; that, in order that the same might be mined and ex-
tracted, it was necessary to bring water in ditches, pipe lines,
etc., from a distance as contemplated by plaintiff; that such
deposits could not be profitably mined otherwise than with a
large volume of water; and that it was necessary to enable
plaintiff to convey its water to placer claims on the creek,
there to be used for the purpose of supplying the owners of
such claims with water, that plaintiff have a right of way
across defendant's ground. Held, that such complaint was
demurrable for failure to show a public need for plaintiff's pro-
posed ditch or the right of way over defendant's ground.
-Miocene Ditch Co. v. Lyng, 138 Fed. 544, 70 C. C. A.
458.
Distinctions between, and law actions abolished, see "Actions";
"Pleading."
Suit in, cannot be united with law action, see "Actions."
Administration on estates of decedents, an equity suit, see "Executors
and Administrators."
Power to grant injunction, see "Injunctions."
Injunction against continuing nuisance, see "Injunctions."
Suits to quiet title, see "Quieting Title."
1. Suit to restrain payment of license tax.
A stockholder cannot maintain an equitable suit against the
corporation, its president, and treasurer, to restrain it from
paving license taxes in Alaska, where no showing of the resi-
dence of the directors, or of any application to them or to such
2 A.R.-43
president and treasurer to take action to relieve from the bur-
den of the taxes, is made.
-Stewart v. Wash. & Alaska S. S. Co. 187 U. S. 466,
23 Sup. Ct. 161, 47 L. Ed. 261.
A suit in equity by a stockholder against the corporation to
restrain it from paying an Alaska license tax was properly dis-
missed, where the corporation made no serious defense, and there
was no showing of irreparable injury or of any effort to secure
action by the corporation or its directors as is required by equity
rule 94, other than a demand upon the resident agent; the dis-
tance of such director from the place where plaintiff resides
and in which the court is held being relied upon as an excuse
for not making any further effort.
-Corbus v. Alaska Treadwell Gold Min. Co. 187 U. S.
455, 23 Sup. Ct. 157, 47 L. Ed. 256.
2. Injunction in possessory actions.
Where, in a suit to restrain the driving of piles on a water
front, the evidence shows no possession in complainant war-
ranting the relief asked, but also fails to show any ownership
in defendant, on review of the decree denying the injunction,
and adjudging title and possession in defendant, it will be modi-
fied to one merely denying the injunction and dismissing the suit.
-Juneau Ferry & Nav. Co. v. Alaska S. S. Co., 121 Fed.
356, 58 C. C. A. 34.
The defense of laches may be considered by an appellate court,
although not made the subject of an assignment of error.
-Shea v. Nilima, 133 Fed. 209, 66 C. C. A. 263.
A delay of from one to two years before commencing suit to
recover an interest in a mining claim after complainant's right
had been denied does not alone constitute such laches as will
bar him of relief in equity, where it does not appear that the
defendants have been prejudiced thereby.
--Shea v. Nilima, 133 Fed. 209, 66 C. C. A. 263.
4. Procedure under Alaska Code-Findings.
Under Code Civ. Proc. Alaska (Carter's Ann. Codes) § 372,
which regulates the practice in the trial of causes of an equita-
ble nature, and provides that the court "shall set out in writing
its findings of fact upon all the material issues of fact presented
by the pleadings, together with its conclusions of law thereon:
but such findings of fact and conclusions of law shall be separate
from the judgment, and shall be filed with the clerk
and
constitute a part of the judgment roll of the case," it is not re-
versible error to state such findings and conclusions in an opinion
filed by the judge and referred to in the judgment, at least where
no objection or motion for further findings was made.
-Lindeberg v. Doverspike, 141 Fed. 59, 72 C. C. A. 69.
Of decedents, see "Executors and Administrators."
By witnessing hostile deed, see "Deeds."
Estoppel by lease, see "Ejectment."
Agent estopped to deny principal's title, see "Mines and Minerals."
1. Tenant estopped to deny lessor's title.
Where a tenant in possession of land under a lease takes a sec-
ond lease from another lessor, claiming title and right to posses-
sion hostile to the first lessor, and by reason thereof such tenant
is allowed to remain in undisturbed possession of the premises,
he is estopped from denying the second lessor's title before sur-
rendering possession to him.
-Piper v. Cashell, 122 Fed. 614, 58 C. C. A. 396.
Rejection of immaterial, see "Appeal and Error."
Quitclaim deed as, see "Adverse Possession."
Use of documents not admitted as, error, see "Bailment."
Brokers' customs inadmissible, see "Brokers."
In contempt proceedings, see "Contempt."
Performance of contract, see "Contract."
Presumption in favor of court proceedings, see "Courts."
On appeal to Circuit Court of Appeals, see "Courts."
In divorce cases, see "Divorce."
Burden in ejectment, see "Ejectment."
Abandonment of lands by insane person, see "Insane Person."
Burden in trusts in mines, see "Mines and Minerals."
1. Presumption in favor of Act of Congress.
The presumptions are that the act of Congress imposing license
taxes in Alaska is constitutional, and anything essential to es-
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