Ebner Gold Min. Co. v. Alaska-Juneau Gold Min. Co.

• Decision Date: 05 January 1914
• Docket Number: 2155.
• Citation: 210 F. 599
• Parties: EBNER GOLD MINING CO. v. ALASKA-JUNEAU GOLD MINING CO.
• Court: U.S. Court of Appeals — Ninth Circuit

210 F. 599

EBNER GOLD MINING CO. v. ALASKA-JUNEAU GOLD MINING CO.

No. 2155.

United States Court of Appeals, Ninth Circuit.

January 5, 1914

The Ebner Gold Mining Company, plaintiff below and plaintiff in error here, brought an action in ejectment in the District Court, Division No. 1, of the District of Alaska, against the Alaska-Juneau Gold Mining Company, defendant in error charging that some time in August, 1910, the Alaska-Juneau Company wrongfully entered upon part of the Lotta and Parish No. 2 lode claims which were owned and possessed by the Ebner Gold Mining Company, and ejected the said Ebner Company therefrom and built a dam and flume over the said claims.

The Alaska-Juneau Company denied all the material allegations set forth in the complaint and claimed that it owned and was entitled to possess what is conceded to be practically the same ground as had been described as Parish No. 2 and Lotta claims by virtue of certain mining locations known as the Oregon and the Canyon mining claims, respectively; that the dam referred to in the complaint is within the boundaries of the Oregon and Canyon mining claims; and that the flume is within the boundaries of the said two claims and another claim owned by the defendant in error.

Defendant further set up that, if the Ebner Gold Mining Company ever had had any interest in the claims described, it had failed to do the necessary work and labor for the use and benefit of the Parish No. 2; that it owned many mining claims and was building tramways and utilizing water which it had appropriated for mining and other purposes; that the waters it had appropriated were necessary in the operation of its mills; and that the dams constructed by it were necessary that the pretended Parish No. 2, the Oregon, and the Canyon claims were all unpatented mining claims; that for many years the miners of the Harris Mining District, Alaska, in which the properties in litigation are situated, were accustomed to certain rights by which riparian owners had no rights to the water flowing within the stream, but could enjoy the use of water by diversion, appropriation, and application to beneficial usage.

Replication to the answer was filed, plaintiff denying the assertions of claims of ownership made in the answer. Trial before the court without a jury resulted in findings to the effect that the Ebner Company, plaintiff, owned and possessed the Lotta claim; but that it had never owner or possessed the ground claimed as Parish No. 2 claim; that the said Parish No. 2 'was located solely for purposes of convenience; that no discovery of mineral-bearing rock in place, of any value, was ever made by the plaintiff or its grantors, nor any indication or evidence of such as could or would warrant or justify one in spending time, work, or money in its development or in the expectation of finding ore; * * * that no assessment work required by law to the extent of $100 each year has been performed or caused to be performed in labor and improvements of any kind or for the benefit and use of said Parish No. 2 claim prior to the year 1909; and that the plaintiff and its grantors failed and neglected to sufficiently represent said claim during the years prior to 1909, after its attempted location in 1899; * * * that the Oregon mining claim was located solely for purposes of convenience; and that no discovery of any mineral-bearing rock in place of any value was ever made by defendant or its grantors.'

As conclusions of law the court found that the plaintiff was entitled to the possession of the Lotta claim and to a decree ousting the defendant therefrom that the location know as the Parish No. 2 and the locations known as the Oregon and the Canyon mining claims were void and of no effect; and that neither of the parties was entitled to recover costs. Judgment was entered that plaintiff take nothing further by its complaint, and except as to the Lotta mining claim the action was dismissed. From this judgment the writ of error is prosecuted.

John R Winn and N. L. Burton, both of Juneau, Alaska, for plaintiff in error.

Curtis H. Lindley, of San Francisco, Cal., and Hellenthal & Hellenthal, of Juneau, Alaska, for defendant in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT Circuit Judge (after stating the facts as above).

The decision of the case turns upon the validity of the location of the Parish No. 2 and the Oregon lode claims. Involved in this question is the necessity for determining whether or not there was any substantial evidence introduced upon which the court was justified in predicating its view of lack of discovery on the Parish No. 2. The contention of the Ebner Company is that the record discloses that upon the trial, 'by a great preponderance of the evidence, if not by the undisputed proof, plaintiff in error or its grantors had, prior to any intervening rights, made a good and sufficient discovery, location, staking, and marking of the boundaries and posting and recording of the location notice of the Parish No. 2 lode claim,' and that since discovery the necessary annual assessment work had been done upon said claim.

Examination of the testimony of the witness Ebner, who was the original locator of the Parish No. 2 claim, discloses these questions and answers:

'Q. How did you happen to locate the Parish Lode? That is, did you take a man with you the day you located it? A. Do you want to know the history of it?

'Q. I will ask you now-- the Parish No. 2 lode, was anybody with you the day you made that discovery? A. When I made my discovery I think I had two men with me.

'Q. How did you happen to take these two men with you? A. In the first place, I always take a man with me when I go out in rough places; I had them for cutting brush. The brush was very high and a great deal of it. * * *

'Q. Parish let the lodes lapse? A. Yes, sir.

'Q. So you went out there some time-- was it August, 1899? A. It was during the latter part of the summer. I prospected around some time before we started to locate them.

'Q. And your location notice described your discovery point? A. Yes, sir; within a few feet or a short distance.

'Q. I wish you would describe to the court the appearance of that discovery. A. Why the discovery on the Parish No. 2, Mr. Shackleford, is just north of a pit, an old pit that was there.

'Q. The Borean pit? A. The Borean pit and the bedrock stuck out in one place there and showed quartz; that was the discovery for the Parish No. 2.

'Q. Is that bedrock there now? A. I think that that is blasted out. I think that is where the open cut was made.

'Q. Is it blasted out? A. Yes, sir.'

This testimony very clearly fixes the discovery point on the Parish No. 2 as in the Borean pit. Counsel say, however, that there were so many other discoveries made by Ebner, 'which are practically undenied by the defendant in error and are to a great extent corroborated by the witnesses of the opposing party, that we do not care to take the time to dwell any further on the question as to whether the discovery made at or near the Borean pit is or is not rock in place. ' But when we turn to the testimony introduced by the defendant in error, we find that its agent and general superintendent was asked particularly with reference to the portion of the Parish No. 2 lying between the banks of Gold creek and the southerly end line of the claim, and whether there was any rock in place anywhere near the surface. We quote from the record:

'A. The southerly end line?

'Q. Yes, I mean along where the Borean pit is. A. That is entirely covered by rock slide in the southeastern portion, all the way; it is made up of two slides, one in the vicinity of Miller's gulch and the other coming from a point on the north side of Snowslide gulch.

'Q. How about the Borean pit? Any rock in place anywhere in that vicinity? A. In the Borean pit itself?

'Q. Yes. A. No, there is not.

'Q. Do you know where that open cut is-- the Borean pit? A. I do.

'Q. Is there any rock in place in the neighborhood of that open cut? A. I didn't see any.

'Q. Did you examine it? A. I did.

'Q. Answer the question whether there is or not. A. I don't think there is any bedrock within at least 30 or 40 feet, if not more, of the bottom of the Borean pit itself.'

Counsel who represented the plaintiff in error in the court below moved to strike out the last part of the witness' answer, but the court denied the motion. The examination continued:

'Q. I now hand you this photograph marked '10,' and call your attention to a rock shown on the right-hand side of the picture, and ask you if you are familiar with that piece of rock there? A. I am. I looked at that very carefully.

'Q. Is that a boulder or rock in place? A. That is a piece of slide from the cliff above and is part of the general slide.

'Q. Part of the general slide? A. Yes, part of the general slide.

'Q. Is that in place or not? A. It is not in place.

'Q. Is there, Mr. Kinzie, any rock in place in the Borean pit, at the Borean pit or within a radius of 50 or 100 feet on each side of the pit? A. No, there is not. You mean to be seen?

'Q. Yes. A. No, there is not.

'Q. How deep,

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