McKay v. Neussler

• Decision Date: 20 June 1906
• Docket Number: 1,229.
• Citation: 148 F. 86
• Parties: McKAY et al. v. NEUSSLER.
• Court: U.S. Court of Appeals — Ninth Circuit

148 F. 86

McKAY et al. v. NEUSSLER.

No. 1,229.

United States Court of Appeals, Ninth Circuit.

June 20, 1906

A. J Bruner, J. C. Campbell, W. H. Metson, F. C. Drew, and Ira D Orton, for plaintiff's in error.

J. F Sullivan, M. I. Sullivan, and Theo, J. Roche, for defendant in error.

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

GILBERT Circuit Judge.

The defendant in error brought ejectment to recover possession of an undivided one-fourth interest in a placer mining claim known as 'Bench Claim No. 6 on Anvil Creek' in Alaska. It was admitted that she had formerly owned such interest, but it was alleged in defense of the action that her co-owner D. W. McKay had in the year 1901 performed upon the claim assessment work of the value of $100 and had served on her a demand for the payment of her proportionate share thereof and a notice of the forfeiture of her interest, and had thus acquired the same. The issues presented for trial were whether assessment work of that value had been done by said McKay in 1901 and whether the requisite notice of contribution had been served upon the defendant in error as required by the statute. Upon these issues the evidence was conflicting. The jury for the defendant in error.

It is contended that the trial court erred in refusing to give the jury the following instruction, which was requested by the plaintiffs in error:

'With reference to the amount of labor required, you are instructed that the law requires $100 worth of work; and in determining the amount of work done upon a claim for the purpose of representation, the test is as to the reasonable value of said work, not what was paid for it, or what the contract price was. But it depends entirely upon whether or not said work was reasonably worth the sum of $100. It is not the value of the claim, with or without the labor, nor the intrinsic value of the labor to the claim, but whether or not, under all the circumstances which surround the particular locality where the mine was situated at the time the labor was performed, the labor which was performed was reasonably of the value or would reasonably have cost $100.'

The instruction so refused might undoubtedly have been proper if the evidence had been such as to render it appropriate. It was not applicable to the case made in the court below, for the reason that there was no evidence whatever that money was paid for the assessment work alleged to have been done by McKay or that a contract was made by him for the performance of the same. McKay's testimony was that he went on the claim and did thereon what he considered $100 worth of work that he worked 10 days, and estimated the value of his work at $10 a day. On his cross-examination he admitted that he did not know what the prevailing wages were at that time and place for that kind of work. The plaintiffs in error offered no other testimony on that subject. In rebuttal thereof two witnesses testified, on behalf of the defendant in error,...