Rooney v. Barnette

• Decision Date: 07 October 1912
• Docket Number: 2,005.
• Citation: 200 F. 700
• Parties: ROONEY et al. v. BARNETTE et al.
• Court: U.S. Court of Appeals — Ninth Circuit

200 F. 700

ROONEY et al. v. BARNETTE et al.

No. 2,005.

United States Court of Appeals, Ninth Circuit.

October 7, 1912

Louis K. Pratt, of Fairbanks, Alaska, and Robert W. Jennings, of Baltimore, Md., for plaintiffs in error.

Metson Drew & Mackenzie, of San Francisco, Cal. (E. H. Ryan, of San Francisco, Cal., of counsel), for defendants in error McGinn Sullivan, Ridenour, and Cook.

T. C West, of San Francisco, Cal., for defendant in error Barnette.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

The parties will be designated as in the court below.

It is assigned as error that in the impanelment of the jury in the court below a challenge for cause interposed by plaintiffs to Juror John Derby was denied. The objection to the juror was that he was not an inhabitant of the district of Alaska, as required by section 170, c. 16, of the 'Act making further provision for a civil government for Alaska and for other purposes,' approved June 6, 1900 (31 Stat. 321, 358, c. 786), and section 11, c. 4, of the 'Act to define and punish criminals in the district of Alaska and to provide a Code of Criminal Procedure for said district,' approved March 3, 1899 (30 Stat. 1253, 1286, c. 429). Derby testified that he was an inhabitant of district of Alaska; that he had resided in Alaska for the past five years; that his business was that of a purser on boats running on the Yukon river. He was employed at an annual salary, but the boats were only engaged in the business for six or seven months during the summer. During the remainder of the year the business was shut down on account of the ice. He was in Alaska during the winter of 1905 and 1906. He voted in Alaska during that winter, and he had voted nowhere else since that time. He was absent from the district during the winter of 1906 and 1907 and the year 1908. His employment did not require him to remain in Alaska during the winter, but he was then, at the time of the trial, remaining in the district for the winter of 1909-10. Considering the climatic conditions in Alaska, and the fact that those whose employment or business do not require them to remain in Alaska during the winter usually come away, there was nothing in the fact of Derby's absence from the district at the times mentioned to contradict his testimony that he was an inhabitant of the district.

The plaintiffs' challenge of Derby for cause having been denied, he was challenged by plaintiffs peremptorily, and thereafter, the plaintiffs having exhausted all their peremptory challenges, they were compelled to accept one O. H. bernard as a juror, against whom plaintiffs state they would have interposed a peremptory challenge, had it not been that this right had been exhausted on Derby. Bernard was not challenged for cause, and his examination on the voir dire developed no facts which would have justified a challenge for cause. The facts stated by Bernard, which plaintiffs think would have justified them in exercising a peremptory challenge were these: Bernard had never had a case before the court, but had some trouble over some property, and settled it through a compromise. Some parties, he presumed, had jumped some of their ground. He was acquainted with the defendant Barnette; slightly acquainted with defendants Ridenour, Sullivan, and McGinn; was not acquainted with defendant Cook; was an association claim locator; McGinn, one of the defendants' attorneys, had been Bernard's attorney in a matter; it did not result in much; was not his attorney then. These facts may have been sufficient to justify the plaintiffs in exercising a peremptory challenge against the juror, and if he had that right no one could object; but in contending for the right we do not see that plaintiffs have raised even a suspicion that they might have been in any way prejudiced by the ruling of the court. There is nothing in the examination tending in the least to show that Bernard could not be a fair and impartial juror in the case, and there is nothing to show or tending to show that the court, in denying plaintiffs' challenge of Derby for cause, exercised its discretion arbitrarily. The finding of the trial court upon such an issue ought not to be set aside by a reviewing court, unless the error is manifest, and where the law left nothing to the conscience or discretion of the court. Reynolds v. United States, 98 U.S. 145, 156, 25 L.Ed. 244.

The remaining assignments of error relied upon by the plaintiffs may all be considered under the objections to instructions given by the court to the jury and instructions requested by the plaintiffs and refused by the court.

The claim in controversy is designated as placer mining claim No. 3 below Discovery on the first tier, right limit of Dome creek, Alaska. The plaintiffs' right of possession is derived from a location of a claim of 20 acres described as above, made on the 21st day of September, 1905, by the plaintiff William Rooney, and filed for record on October 13, 1905, and a discovery of gold on the bed rock of the claim made about December 25, 1905. Thereafter the right of possession acquired by Rooney by his location and discovery became vested in the plaintiffs, William Rooney, John Junkin, G. W. Johnson, and August Plaschlart.

The defendants' right of possession is claimed under two separate and distinct placer mining locations. The first location is designated as the Dome Group Association claim on the right limit of Dome creek in the Fairbanks district of Alaska. This location included a tract of 160 acres, the equivalent of eight claims of 20 acres each. The location was made by Henry Cook and J. C. Ridenour for themselves, and at the instance of one Barnette the location included the names of A. T. Armstrong, W. H. Sumner, G. L. Newton, M. E. Armstrong, L. T. Selkirk, and A. R. Armstrong, who were not residents of the district, but of the state of Ohio. The location was made on the 23d and 24th of March, 1905, and was distinctly marked on the ground by stakes, so that its boundaries could be readily traced. A discovery of gold was made on the claim by Cook and Ridenour on the 15th day of April, 1905, and the notice of location filed for record on April 17, 1905. The Associated claim included the ground in controversy.

The plaintiffs requested the trial court to withdraw the Dome Group Association claim from the consideration of the jury as a defense to the action on the ground that the invalidity of the claim had been established. The court's refusal to withdraw this defense is assigned as error. The controversy as to this location arises mainly upon this state of facts:

In April, 1905, Henry Cook, J. C. Ridenour, A. T. Armstrong, W. H. Sumner, Y. L. Newton, L. T. Selkirk, and A. R. Armstrong, the eight locators of the Dome Group Association claim, brought a suit in equity in the District Court of Alaska against John Klonos and a number of other defendants, including Richard Stafford, for a decree determining the adverse claims of the defendants in and to the ground claimed by the plaintiffs, and that it be adjudged that the defendants had no estate or interest whatsoever in and to said ground, that the cloud cast upon plaintiffs' title by defendants' claim of title be removed, and for other relief. The defendants answered the complaint, and upon the issues thus presented the case was brought to trial before the court. At the close of plaintiffs' testimony the defendants moved for a nonsuit, and for a judgment dismissing plaintiffs' bill substantially on the grounds: (1) That plaintiffs' location of eight claims constituting the alleged Dome Group of claims was not made by bona fide locators, but in the name of dummy locators, in violation of law; and (2) that the plaintiffs had not shown that prior to and at the time of the location of their claims the ground was vacant and unappropriated public lands of the United States. The motion was granted on the second ground.

On appeal to this court it was held (Cook v. Klonos, 164 F. 529, 90 C.C.A. 403) that the evidence was sufficient to show prima facie that at the time of the location of the claim by the plaintiffs it was unappropriated public land of the United States, although it further appeared that there were other stakes and location notice within the limits of the claim, but it was not shown that these stakes were set by or belonged to the defendants, or that any prior discovery had been made on the claim. This court accordingly refused to affirm the decree of the trial court upon the ground stated, but held that plaintiffs' location appeared to be a fraudulent device by which one E. T. Barnette, who was himself not a locator, used the names of A. T. Armstrong, W. H. Sumner, Y. L. Newton, M. E. Armstrong, L. T. Selkirk, and A. R. Armstrong as locators, under an agreement or understanding with them that he should have a half interest in their locations, or the equivalent of 60 acres in their location. Upon this ground this court affirmed the judgment of the court below. Subsequently, upon a petition for rehearing, in Cook v. Klonos, 168 F. 700, 94 C.C.A. 144, while expressing its satisfaction with what had been said in the opinion with respect to Barnette and the six absent locators, upon a further examination of the record the court was not satisfied that Cook and Ridenour were parties to the fraud. The court said:

'If they were not, and they joined in the location in question in good faith, and the ground was open to location, we think they are entitled to select 20 acres each within the exterior boundaries of the associated claim, provided they have continued to conform to the requirements of the statute and the local rules of the mining district.'

The court accordingly modified its judgment so...