Hanson v. Craig

• Decision Date: 03 May 1909
• Docket Number: 1,456.
• Parties: HANSON et al. v. CRAIG et al.
• Court: U.S. Court of Appeals — Ninth Circuit

170 F. 62

HANSON et al. v. CRAIG et al.

No. 1,456.

United States Court of Appeals, Ninth Circuit.

May 3, 1909

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

Not being satisfied with our decision heretofore rendered in this case (161 F. 861, 89 C.C.A. 55), the petition for a rehearing of the cause was granted, and after a further consideration of the record we are convinced that the decision then made was erroneous. The theory upon which we then proceeded was that the evidence was sufficient to justify a finding of such a possession of the mining ground in question by the defendants in error, who were the plaintiffs below, as precluded the plaintiffs in error, who were defendants below from entering upon it for the purpose of prospecting and making a valid mining location thereon. Some of the facts are stated in the opinion then delivered, but there are other facts shown by the record which were overlooked.

The plaintiffs in error, as well as the defendants in error, are eight in number, and made the location under which they respectively claim as an association claim of 160 acres of placer ground. The location of the defendants in error was prior in point of time, having been made on the 5th day of January, 1906; the ground then staked by them being 1,320 feet wide by a mile long, on Wildcat Creek, a tributary of Treasure Creek, in the Fairbanks mining district of Alaska. That claim was called the 'Red Dog Association Claim.' On the 18th of the next month the defendants in error changed the boundaries of the claim, so as to lessen the width one-half and to double the length, and marked the boundaries thereof so that they could be readily traced upon the ground, and thereafter recorded the notice of such location. The record shows that the defendants in error had various other association claims of 160 acres each in the near vicinity and had a camp not far away. The evidence tended to show that on the 12th of March, 1906, the defendants in error made arrangements to commence sinking a shaft upon the ground thus claimed in search of gold, and with that end in view it was arranged that the defendant in error Cale should go to Fairbanks, which was about 18 miles distant, to procure the necessary tools, blankets, and other supplies, and to return to the claim and commence work thereon on the 16th of March, 1906, and that in the meantime the defendant in error Carroll and one Hugh Dougherty, should begin the sinking of a shaft on the claim, Alice Dougherty should begin the sinking of a shaft on the claim, which they did on the 14th of March, 1906, continuing such work during the 14th and a part of the 15th of that month, during which time they sunk the hole to a depth of about six feet. It appears that in the evening of March 15th Carroll and Dougherty left the claim, taking with them their tools and other belongings, for the reason that Cale was expected to return from Fairbanks, under the arrangement, and proceed with the work thereon the next morning, and also assigned as a reason that until the shaft had been sunk a sufficient distance but one man could work therein. It appears from the testimony that Cale selected the place on the 12th of March for the sinking of this shaft; that witness testifying:

'I told Mr. Carroll and Mr. Dougherty on the evening of the 12th that they could go to work and commence sinking a shaft immediately, and that I would leave in the morning and go to Fairbanks Creek, and that it would not take me to exceed three days to get back; that I would be back on the third day if nothing intervened-- nothing interfered with me-- which they agreed to do. I had a similar conversation with them on the morning of the 13th, when leaving. That was the understanding, that they would go up in the morning and commence work on this shaft on this ground; and I left on that morning.'

There was also testimony going to show that Cale returned to within one mile of the Red Dog association claim on the 18th of March, with his tools and supplies, but, instead of going onto the ground and commencing work, stopped at the camp of the defendant in error Carroll, and from there went back to Fairbanks Creek, and did not return to the ground in dispute until the afternoon of the 21st of March, when he went to work in the shaft or hole that had been commenced on the 14th of the month by Carroll and Dougherty; Cale testifying:

'I immediately went to work, and remained working until the shaft was sunk to bedrock. I worked alone for a while, until I got the shaft down as far as I could get it and throw the dirt out. Then I went to work and timbered the shaft, and made a windlass and a few other things that were necessary to continue the work, and I then got Mr. Warren (being one

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