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-
-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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