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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