Cascaden v. Bartolis

• Decision Date: 27 June 1906
• Docket Number: 1,259.
• Citation: 146 F. 739
• Parties: CASCADEN et al. v. BARTOLIS.
• Court: U.S. Court of Appeals — Ninth Circuit

146 F. 739

CASCADEN et al. v. BARTOLIS.

No. 1,259.

United States Court of Appeals, Ninth Circuit.

June 27, 1906

Louis K. Pratt and Carl M. Johnason, for plaintiffs in error.

Edward E. Cushman, A. R. Heilig, and Leroy Tozier, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS Circuit Judge.

The plaintiffs in error, who were plaintiffs in the court below brought this action to recover from the defendant thereto two certain lots of land situated in the town commonly known as 'Gates City,' in the Fairbanks mining district territory of Alaska, alleging in their complaint themselves to be the owners, as against all persons except the United States, of the lots of land, and entitled to their possession, and alleging the unlawful entry thereon by the defendant, and his ousting of the plaintiffs, and his withholding of the possession of the property from them.

The answer of the defendant put in issue the allegations of the complaint, and affirmatively alleged that at the time of the defendant's entry upon the lots in question they constituted a part of the vacant and unappropriated public lands of the United States, and that, as such, he entered into the possession of the land and built thereon two log cabins, and has ever since continued in the actual possession thereof. In an amended answer the defendant also put in issue the allegations of the complaint, and repeated the affirmative averments of his original answer, and added the following averments:

'That said cabins are situated in what subsequently became, long prior to the beginning of this action, and is now, the townsite of Gates City; that the inhabitants of said townsite number more than 300, and defendant is an occupant of said town, and a large number of dwellings, for the purpose of carrying on business therein, have been constructed in said townsite, and are used for said purposes; that said townsite embraces about 80 acres of land, and it is the intention of the occupants thereof to enter the same for townsite purposes, for the several use and benefit of the occupants of such townsite, and secure patent therefor in accordance with the provisions of the act of Congress in such case made and provided; that defendant is the owner and entitled to the possession of said cabins and grounds, and claims the same as an inhabitant of said townsite, and as a prior occupant of said premises.'

A demurrer of the plaintiffs to the affirmative defense thus set up was overruled by the court below, to which ruling as exception was taken and allowed. Thereafter the plaintiffs filed a reply to the amended answer, denying defendant's affirmative allegations. On the trial, which was had with a jury, the plaintiffs relied upon a certain placer mining location, antedating the entry upon the ground by the defendant, the validity of which location was contested by the defendant who moved the court below, both upon the conclusion of the evidence on behalf of the plaintiffs, and also upon the conclusion of the entire evidence in the cause, to direct the jury to return a verdict for the defendant upon...