advance, and ascertain that he was secure therein, held that, while such rules imposed a duty upon the servant, they did not relieve the master from his duty of furnishing a reasonably safe place for the servant to work.
-Seittn v. Alaska Treadwell Gold Min. Co........... .8 Whether rules adopted by the master imposing the duty upon the servant to examine the conditions surrounding his work and to maintain himself in security binds the servant and frees the master from responsibility will depend upon the character of the service and the opportunity of the servant to examine; such rules will not invariably excuse the master from responsibility. -Seittn v. Alaska Treadwell Gold Min. Co........
A rule that requires the employé to make a personal inspection as to the safety of the place where he is performing or is to per- form his work, in order to relieve the master of any duty in that behalf, must be reasonable per se; must refer to conditions sur- rounding the service in which the servant is employed; must re- fer to the place where the servant is employed as affecting the safety thereof; and must be understood as referring to the dangers that are obvious, and are or would become readily dis- coverable upon inspection of the place and its surrounding con- ditions by a person of ordinary understanding and competence for the service in which employed.
-Seittn v. Alaska Treadwell Gold Min. Co......
8. Choosing the perilous method in mining.
Plaintiff was employed in defendants' mine to manage the bucket in hoisting gravel. The bucket was raised from the bottom of the shaft, where plaintiff was stationed, by a wire cable, which ran through an iron sheave around an iron wheel. The cable would frequently jump off the wheel when the sheave was lowered too far, and when drawn up would squeeze between the wheel and the iron side of the sheave and clog. Plaintiff notified the foreman of the defect, but continued to work the apparatus. He could have rung the bell placed there for that purpose, and stopped the engine while he fixed the rope, but in- stead caught the rapidly running rope with his hands to throw it into place, when his hand was caught, dragged into the sheave, and his fingers cut off. Held, that he was guilty of contributory negligence, and could not recover damages.
-Begenish v. Gates.......
The rule is well settled that where there are two methods by which a service may be performed, one perilous and the other
safe, an employé who voluntarily chooses the perilous rather than the safe one cannot recover for an injury thereby sustained. -Begenish v. Gates....
1. Statute liberally construed.
Civ. Code Alaska, §§ 262, 265, 266 (Act June 6, 1900, 31 Stat. 534, 535, c. 786), providing for and authorizing the foreclosure of mechanics' liens, should be liberally construed; but such liens, being of purely statutory creation, can be established only by a substantial compliance with the statute.
-Russell v. Hayner, 130 Fed. 90, 64 C. C. A. 424.
The courts in fixing a rule of construction of these laws look to the statutes themselves to ascertain whether they should be strictly or liberally interpreted. Held, that the provisions of the mechanic's lien law of Alaska shall be liberally construed. -Jorgenson Co. v. Sheldon..
Under Civ. Code Alaska, § 262 (Act June 6, 1900, 31 Stat. 534. c. 786), providing that every builder shall have a lien on a build- ing erected or material furnished or labor performed thereon at the instance of the owner of the building, etc., and section 266, making it the duty of every original contractor within a specified time to file with the recorder a claim, with the name of the owner or reputed owner, if known, a statement of a lien, and a complaint to foreclose the same, failing to state the name of the owner of the building, or to state that the name of the owner was unknown was insufficient, though it stated the name of the holder of the legal title to the land, and the name of a vendee at whose instance the building was erected.
-Russell v. Hayner, 130 Fed. 90, 64 C. C. A. 424.
3. Complaint must allege ownership.
In order to establish a mechanic's lien under Civ. Code Alaska, § 262 (Act June 6, 1900, 31 Stat. 534, c. 786), providing that every mechanic, builder, etc., performing labor on or furnishing ma- terial, shall have a lien on the same for work or labor done or material furnished at the instance of the owner of the building or other improvement, or his agent, etc., it must be alleged and proved that the work or labor was done "at the instance of the owner of the building or his agent"; a mere allegation that
plaintiffs erected the structure at the instance of one who was in possession of the land under a contract to purchase with the owner being insufficient.
-Russell v. Hayner, 130 Fed. 90, 64 C. C. A. 424.
Where a complaint in foreclosure of a mechanic's lien fails to allege and set out a substantial observance and compliance with the statute in the matter of the notice of lien, it is bad on de- murrer.
-Jorgenson Co. v. Sheldon......
A mechanic's lien cannot be established under Civ. Code Alaska, § 265 (Act June 6, 1900, 31 Stat. 535, c. 786), providing that every building or other improvement constructed on any land with the knowledge of the owner, or the person having or claiming any interest therein, shall be held to have been con- structed at the instance of such owner, etc., where it did not appear from the complaint that the owners of the lot on which the building was erected had any knowledge of the contract made by the person in possession, under a contract of purchase, with the contractors, for the construction of a building, or that the building was constructed at the instance of such owners. -Russell v. Hayner, 130 Fed. 90, 64 C. C. A. 424.
5. Federal courts-Law and equity.
Since the distinctions between law and equity are preserved in the federal courts, where the complaint in a suit in equity to foreclose a mechanic's lien in a federal court was insufficient for that purpose, it was not sustainable for the purpose of per- mitting plaintiffs to recover a personal judgment against the person liable on the contract.
-Russell v. Hayner, 130 Fed. 90, 64 C. C. A. 424.
Not subject to entry with soldier's additional homestead scrip, see "Public Lands."
Trespassing on, see "Public Lands."
Grub stake agreement, see "Contract."
Contract to develop, see “Contract.”
Claim of dower and heirship in, see "Dower."
Condemnation over, for ditches, see "Eminent Domain."
Burden of proof in trust in, see "Evidence.”
Effect of adverse possession, see "Limitation of Actions."
Partition of mine, see "Partition."
Duty of agent in locating, see "Principal and Agent.”
Possession sufficient to uphold suit to quiet title, see "Quieting Title." Railway right of way across, see "Railroad."
Proceedings for patent, see "Vendor and Purchaser."
Use of waters in mining, see "Waters and Watercourses."
1. Mineral laws of the United States.
Section 2339, Rev. St. 1878, 14 Stat. 253, concerning the vested rights to the use of water for mining, right of way for canals, etc., passed July 26, 1866, has not been put in force and is not in force in Alaska. This is not a part of the mining laws of the United States, but is an independent statute.
-Ketchikan Co. v. Citizens' Co.....
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 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-
-Revenue Min. Co. v. Balderston.....
2. Lands not subject to mineral entry.
A homestead entry of public lands in Alaska, though informal, constitutes a segregation of the tract from the public domain, and its reservation for sale under the homestead laws. No sub- sequent mineral location can be initiated thereon until the home- stead entry is canceled, after notice and hearing by contest in the United States land office.
Navigable streams in Alaska are public highways, and no portion of the bed or land lying between high and low water mark is subject to location under the mineral land laws. -Heine v. Roth......
3. Qualifications of locator-alien.
The fact that a mining claim is located by an alien does not render the location illegal or void, but, at most, it is only voida- ble at the instance of the government; and a subsequent declara-
tion of intention to become a citizen by a locator, or one having an interest in the claim, prior to the inception of any adverse rights, relates back to the date of the location or acquisition of the alien's interest, and validates the transaction.
-Shea v. Nilima, 133 Fed. 209, 66 C. C. A. 233.
4. Agreements for locating mining claims.
An agreement between two or more persons to explore the pub- lic domain and to locate a mining claim or claims for the joint benefit of the contracting parties, is not within the statute of frauds, and need not be in writing; and if, in pursuance of the agreement, one of the parties locates the claim in his own name, he holds the legal title to the interests of the others in trust for them.
-Shea v. Nilima, 133 Fed. 209, 66 C. C. A. 263.
An agreement between two aliens to acquire or locate mining claims in Alaska for their joint benefit is not void; nor does the fact of their alienage prevent one, who subsequently declared his intention to become a citizen, from enforcing the contract by recovering his interest in a claim located in the name of the other pursuant to such agreement.
-Shea v. Nilima, 133 Fed. 209, 66 C. C. A. 263.
The burden of proof is upon one who seeks to establish a trust in a mining claim against both the record and the quiet possession of the locator. A court of equity will not adjudge the locator of a mining claim, who is in peaceable possession under a clear record title, to be a trustee of that title and posses- sion for another, upon an alleged prior oral contract to locate it for the other, unless the case is established by full, clear, and satisfactory evidence.
-Copper River Min. Co. v. McClellan......
An agent who locates a mining claim for and in the name of his principal does not acquire an interest in the title thereto without an express prior agreement to that effect.
-McMahon v. Meehan & Larson....
As a general rule (to which there are exceptions), an oral agree- ment to convey a mining claim or of an interest therein, or to charge or incumber it, is void; it must be conveyed by deed. .....408
-Cascaden v. Dunbar......
A grubstake contract is an agreement between two or more persons to thereafter locate mines upon the public domain by their joint aid, effort, labor, or expense, whereby each is to acquire, by virtue of the act of location, such an interest in the mine as is agreed on in the contract. The title accrues to 2 A.R. 45
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