Malone v. Jackson

• Decision Date: 08 May 1905
• Citation: 137 F. 878
• Parties: MALONE et al. v. JACKSON.
• Court: U.S. Court of Appeals — Ninth Circuit

137 F. 878

MALONE et al. v. JACKSON.

United States Court of Appeals, Ninth Circuit.

May 8, 1905

The defendant in error, Jean S. Jackson, brought an action in ejectment on September 13, 1902, against William Malone Julius Kidderlene, Charles Evans, Thomas Nye, and George Modina, in the United States District Court for the Second Division of the District of Alaska, to recover the possession of a mining claim known as 'No. 17 Above Discovery on Osborne Creek,' in the District of Alaska. It is alleged in the complaint that on the 9th day of July, 1899, plaintiff made a valuable discovery of gold within the limits of the placer mining claim afterwards known and described as 'Placer Mining Claim No. 17 Above Discovery on Osborne Creek,' and situated in the Cape Nome mining district of Alaska; that the premises contained within the exterior limits of the said placer mining claim were then free and open, unappropriated, and unexplored mineral lands of the United States, and subject to location and appropriation that thereafter, on the 10th day of July, 1899, plaintiff marked the location of said placer mining claim upon the ground, so that the boundaries could be readily traced, and posted a notice of the location, and such description of the claim with reference to natural objects and permanent monuments as would and did identify the same; that on the 12th day of July, 1899, plaintiff filed for record in the officer of the recorder of the Cape Nome mining district a notice of such location, and thereafter at sundry times prior to the 25th day of August, 1902, the defendants entered upon said mining claim and ousted and ejected plaintiff therefrom and ever since said date have held the possession of said mining claim from the plaintiff; that, by reason of the withholding of the possession of said mining claim from the plaintiff by the defendants, the plaintiff has been damaged in the sum of $3,000.

The defendants answered, denying the allegations of the said complaint, and setting up two defenses: First, that on the 6th day of December, 1898, one Frank Osborne, who was then a citizen of the United States, entered upon the ground described in the complaint, discovered therein placer gold and located the claim in the name and for the benefit of one H. M. Baker, who was a citizen of the United States; that he marked the location upon the ground so that its boundaries could be readily traced, by posting notices of the district, and the same was duly recorded; that on the 1st day of January, 1902, the defendant William Malone entered upon the ground described in the complaint, which was vacant, unappropriated, and unoccupied mineral land belonging to the government of the United States; that the defendant Malone discovered placer gold in said ground; that he staked and located the same as a placer mining claim in his own name, and for his own use and benefit; that he marked the location upon the ground by stakes, and by posting a notice thereon containing the name of the locator, the date of location, and such description of the claim with reference to natural objects and permanent monuments as would and did identify the same; and that he filed a similar notice with the recorder of the district, and the same was recorded.

The reply of the plaintiff denies that on the 1st day of January, 1902, the land and premises described in plaintiff's complaint, and designated as 'No. 17 Above Discovery on Osborne Creek,' was vacant or unappropriated or unoccupied public lands belonging to the government of the United States.

The case was tried before a jury, and, upon the conclusion of the evidence, counsel for the plaintiff moved the court to instruct the jury to return a verdict for the plaintiff, for the reason that the defense set up by the defendants did not constitute a defense to the cause of action set up in the complaint. The court granted plaintiff's motion, and the jury, being so instructed, returned a verdict accordingly. The action of the court in instructing the jury to return a verdict for the plaintiff is assigned as error.

J. C. Campbell, W. H. Metson, and Ira D. Orton (Thomas H. Breeze, of counsel), for plaintiffs in error.

John L. McGinn, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge (after stating the facts).

The defendant in error objects that the assignments of error do not comply with rule 11 of this court, requiring that assignments of error 'shall set up separately and particularly each error asserted and intended to be urged. ' The purpose of this rule and of rule 24 is to secure a clear, but brief, statement of the precise question to be reviewed, and enable the court to understand the subject of the controversy without laborious search. If this appears clearly and distinctly in the record as pointed out by the assignments of error, it is all that is required. In this case there is no difficulty in understanding the question as presented by the record, and further particularity in the assignments of error is therefore unnecessary.

Plaintiff's action is in the nature of a suit in ejectment against the defendants to recover the possession of a mining claim. His right of action is based upon an alleged possession under claim of ownership, supported by a location made in accordance with the procedure prescribed by the laws of the United States.

The first defense set up by the defendants is a prior location made for and on behalf of one H. M. Baker on December 6 1898. The defendants do not connect themselves with any right or title under this location, but it is set up for the purpose of establishing the fact that the ground was no free and open, unappropriated and unexplored, mining land of the United States, subject to appropriation and location, when the plaintiff made his...