United States Smelting Refining & Mining Co. v. Lowe, 5493

CourtUnited States District Courts. 9th Circuit. District of Alaska
Citation74 F. Supp. 917
Docket Number5494.,No. 5493,5493
Decision Date18 December 1947


Southall R. Pfund, and Charles J. Clasby, both of Fairbanks, Alaska, for plaintiffs.

Bailey E. Bell, of Fairbanks, Alaska, for defendant.

PRATT, District Judge.

This is a suit to quiet title in support of an adverse filed in the Land Office against defendant Lowe's application for patents.

The plaintiffs allege ownership of the "L Association" and "Snow Shoe Fraction", placer mining claims, by virtue of locations thereof in 1908. The defendant claims the ground in controversy by locations made in 1941, upon the theory (a) that the location certificates of plaintiffs' predecessors were insufficient; and (b) that the annual labor was not done as required by law.

The case was in the nature of a suit in equity, triable before the Judge, alone, but an advisory jury was impaneled. It found in favor of the plaintiffs, and against the defendant.

The legal phases of the case have been submitted to the Court upon briefs filed by counsel for the parties.

I. 1. Defendant alleges that the location certificates for said claims did not describe them with reference to any natural object or permanent monument, and that therefore the ground was open to location.

Section 26, Title 1, Chapter 1 of the Act of Congress making further provision for the government of Alaska, approved June 6, 1900, 31 Stat. 329, Section 321, Compiled Laws of Alaska 1933, Section 381, Title 48 U.S.C.A., provides: "The laws of the United States relating to mining claims, mineral locations, and rights incident thereto are hereby extended to Alaska: Provided * * *." Thus said Section 26 adopted the provisions of Section 2324, R.S.U.S., 30 U.S.C.A. § 28, to the same extent as if said Act had been written into Section 26 fully. 59 C.J. 1059.

Section 15 of said Act of June 6, 1900, 31 Stat. 327, 48 U.S.C.A. § 382, in providing for the instruments which the recorders should receive for record, stated: "* * * Notices of location of mining claims shall be filed for record within ninety days from the date of the discovery of the claim desscribed in the notice, * * *".

Said Section 2324, R.S.U.S., and said Section 15, above described, were held to permit but not require the filing of a location certificate. It was further held that the filing of an insufficient certificate did not make the ground open for location. Sturtevant v. Vogel, 9 Cir., 1909, 167 F. 448; U. S. Smelting Refining & Mining Co. v. Lowe, D.C., 66 F.Supp. 897.

Although Territorial laws as to filing location certificates were passed by the legislature in 1913 and thereafter, they applied only to mining claims located thereafter, and have no effect upon claims located before 1913.

Consequently, it is immaterial whether the location certificates above mentioned were sufficient or not.

II. Both plaintiffs and defendant alleged in the pleadings actual possession and ownership of the ground in controversy. The pleadings of both parties likewise pray for affirmative relief, to-wit, that their title be quieted, and that they be adjudged the owners of the ground mentioned.

Nevertheless, the defendant maintains that plaintiffs cannot make out a case without showing actual possession of the ground in controversy at the time of the commencement of the suit.

It is believed that defendant has waived any right to raise such point by reason of having submitted herself to the jurisdiction of the Court in praying for affirmative relief. Pioneer Mining Co. v. Pacific Coal Co., 4 Alaska 463; O'Hara v. Parker, 27 Or. 156, 39 P. 1004; State v. Blize, 37 Or. 404, 61 P. 735; Mascall v. Murray, 76 Or. 637, 149 P. 517; Square Deal Mining Co. v. Colomon Mining Co., 61 Colo. 93, 156 P. 147; Sanders v. Village of Riverside, 7 Cir., 118 F. 720.

III. a. As used hereinafter:

"C.L.A." shall mean Compiled Laws of Alaska, 1933;

"Annual Labor" shall be deemed to mean improvement for the benefit of a mining claim to the extent of $100, or mining work upon the claim in the same value, or mining work and improvements of the value of $100 in a designated annual labor year.

b. Section 2324, R.S.U.S., as a part of said Section 26 of the Alaska Act, provided in effect:

(1) That failure to perform the annual labor upon a mining claim did not render it open to relocation unless the owner failed to resume work upon the claim after such failure and before relocation thereof;

(2) That the owner of a validly located mining claim was presumed to have done the annual labor and the burden of proving the contrary was upon any person asserting the same. Lindley on Mines, 3d Ed., page 1583, note 29; Morrison's Mining Rights, 16th Ed., page 130; 40 C.J. 845.

c. In the Act of Congress, approved March 2, 1907, hereinafter called the Waskey Act, entitled "An Act To amend the laws governing labor or improvements upon mining claims in Alaska", 34 Stat. 1243, T. 48, § 384, U.S.C.A.; Sec. 162, Compiled Laws of Alaska 1913, the Section being erroneously dropped from the 1933 C.L.A., appears in effect the following provisions:

(1) That if there was a failure to do the annual labor required by law upon a mining claim, a forfeiture ensued and the right of the owner to resume work after such failure was abolished.

(2) That if an affidavit of annual labor was not filed within 90 days after the close of the annual labor year, the burden of proof was upon the "claimant to establish the performance of such annual work and improvements".

D. The Waskey Act, therefore, repealed by implication (as it had no repealing clause in it) the conflicting parts of Section 2324, R.S.U.S., as a part of the laws of Alaska, and as mentioned above in sub-paragraphs C(1) and (2). Thatcher v. Brown, 9 Cir. 1911, 190 F. 708; Ebner Gold Mining Co. v. Alaska-Juneau Gold Mining Co., 9 Cir., 1914, 210 F. 599.

E. The defendant asserts that when an affidavit of annual labor is required by law, the Waskey Act provides, in effect, that failure to file an affidavit of annual labor is prima facie evidence that the annual labor was not done upon the claim.

For the purpose of treating the subject, it will be temporarily, only, assumed that such was the effect of the Waskey Act.

Section 2324, R.S.U.S., as a part of Section 26 of the Alaska law, and as amended by the Waskey Act, continued in that state until the amending Act of May 31, 1938, 52 Stat. 588, Title 48 U.S.C.A. § 381, entitled "An act to amend section 26, title 1, chapter 1, of the Act entitled `An Act making further provision for a civil government for Alaska, and for other purposes,' approved June 6, 1900." This Act stated that said Section 26 was amended "to read as follows: `Section 26. The laws of the United States relating to mining claims, mineral locations, and rights incident thereto are hereby extended to the Territory of Alaska: * * *'". Then follows some changes as to mining on and below tide water lands.

The 1938 amendment does not refer to the Waskey Act in any respect, nor does it include any of the provisions of the Waskey Act.

F. The plaintiffs assert that if the Waskey Act repealed by implication the right given by Section 2324, R.S.U.S., to resume work after failure to do annual labor and for the owner of a claim to have the presumption that annual labor was done, the Act of 1938 making the laws of the United States, to-wit, Section 2324, R.S.U.S., a part of the laws of Alaska without mentioning or including the provisions of the Waskey Act, repealed that Act by implication. The defendant maintains that the following rule of interpretation governs and that the Waskey Act remains in full force and effect. Said rule is as follows, as set forth in 50 Amer. Juris., page 558, Section 553: "A later law which is merely a reenactment of a former law does not repeal an intermediate act which has qualified or limited the first one, but the intermediate act will be deemed to remain in force and to qualify or modify the new act in the same manner as it did the first. * * * These rules are, however, mere canons of construction, or aids to the ascertainment of the legislative intent, and must yield to such intent."

The rule just set forth in the first sentence will hereinafter be called "the intermediate amendment rule".

Of course, said rule was announced by courts in the light of the facts of the case before them and of the constitution and laws governing.

An examination of the cases which establish the rule will show the following:

(a) That there was a constitutional provision requiring that no law should be amended by reference to the title, only, but that the law should be re-enacted and inserted at length in the new act. Sec. 230, Lewis' Sutherland Statutory Construction, 2d Ed.

(b) The new law should embrace no more than one subject, which should be expressed in the title. Sec. 109, Id.

The part these constitutional provisions played in making said intermediate amendment rule is reflected in the cases on the subject. As Congress never had such limitations upon it, the rule cannot be of assistance in interpreting the intention of Congress as to an Act.

In State v. Clausen, 116 Wash. 432, 199 P. 752, 754, the Court said: "In construing the amendment of 1919 it is manifest that the use or repetition therein of language found in the original act, including that relating to the basis of the valuation of property of the district upon which the 5 per cent. limit of indebtedness should be computed, which in no way interfered with the revisions and extensions the Legislature desired and intended to accomplish by the amendment, was but a vehicle or means mandatorily required by the Constitution."

Quoted cases in this decision show that such was the situation also in the states of Michigan, New Jersey and Oregon.

Illinois also had a...

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4 cases
  • Matanuska-Susitna Borough v. Lum, MATANUSKA-SUSITNA
    • United States
    • Supreme Court of Alaska (US)
    • 8 Agosto 1975
    ...All of the cases cited by the school board appear to fit this type of description. See, e. g., United States Smelting Refining & Mining Co. v. Loew, 74 F.Supp. 917, 11 Alaska 429 (1947).13 Several cases have found the titles of various legislation helpful in determining similar issues of ju......
  • Morgan v. Sorenson, 8153
    • United States
    • Supreme Court of Utah
    • 7 Julio 1955
    ...Nev. 110, 198 P. 553, 15 A.L.R. 937, but see Pine Grove Nevada Gold Mining Co. v. Freeman, 1946, 63 Nev. 357, 171 P.2d 366.14 D.C.D.Alaska 1947, 74 F.Supp. 917, 926.15 The statute provided that in an action to quiet title to mining claims failure to file an affidavit of annual labor would t......
  • Hensley v. Bethesda Sheet Metal Co., 163
    • United States
    • Court of Appeals of Maryland
    • 6 Febrero 1963
    ...Statutory Construction, 3rd, Ed., Sec. 2036. There is a good discussion of the exception in the United States Smelting Refining & Mining Co. v. Lowe, D.C., 74 F.Supp. 917, 922-923. Sutherland, op. cit., Sec. 2035, says: "Likewise, where a statute has been amended and changed by a later enac......
  • Lowe v. United States, 11953.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 22 Septiembre 1949
    ...in which appellees sought and obtained judgment quieting their title to two placer mining claims situate in the Territory of Alaska. 74 F. Supp. 917. The claims had been located by appellees' predecessors in interest in 1908. In 1941 appellant made placer locations overlapping all or the ma......

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