*1 al. et KELLOGG BALABANOFF v.
No. Appeals, Ninth Court of 10, 1940.
Dec.
Rehearing Denied Jan. Judge, dissenting.
598 inches, measured in with the accordance inch, California definition the miner’s and any that such was appellant. granted decree T.he McCarthy, Jr., H. P. H. Metson and W. Company the prior right a to this extent Cal., Francisco, both San enjoined and appellant diverting from the Bunn, of the in both waters stream such Roy toas Cuddy and W. N. prevent Hill, Company the exercising from its Alaska, E. Coke Anchorage, and right. Appellant was decreed Francisco, appellees. to have Cal., for San rights in the stream to the extent 300 DENMAN, and Before junior miner’s inches the Judges. Company. of. the It is that the evidence does HEALY, Circuit decree, findings not the and but called for convenience (here testimony we think otherwise. The tends appellant enjoin Company) sued the Company to show that the Old was ditch diverting the creek waters from the earliest on the construction of district, mining in Yentna it been commenced alleged to a ditch trespassing upon from predecessors interest 1908or 1909. about Company. From property the the It has never enlarged. ditch The Company’s favor the a decree date; early was substantial use anat prosecuted. is certainly not later than 1916 owners the substance complaint contains in The diverting through were it using owns Company operations the whole of normal averments: —The adjacent to on and placer claims flow of creek. The same is true hydraulic mining engaged in creek. It is Company’s more recent normal use. The using the and is of these claims on certain apparently (meaning the' stream The operations. in its of the stream waters diversion is average season) during mining flow accomplished through ditch a variously the witnesses estimated Company, known as the belonging to the at from 300 to 900 inches. Exact miner’s ditch, Company” and the so waters taken, “Old measurements were not either of operations' necessary to the diverted are volume of water the creek or of Company owns a second quantity Company’s hydraulic described. used presently using known not is operations. accuracy ditch as the “Price But scientific too is Ditch”, op- out on the taken expect much to cases of this character point posite stream a' limit of the same primitive country. in that arising Company ditch. the intake of the Old above riparian. Appellant’s claims Until mining Appellant engaged placer on operations prede- 1937 his those below the of these certain claims source largely ground- been confined cessors had sluicing constructing a flume to ditches and is, shoveling gravel into —that other works Price intake using the creek water to boxes sluice therewith, threatening to connect through. The water so used wash it thereby the creek to divert past pears have been such as flowed Company. injury There irreparable Company and Old intake of Price allegations here noticed. The indi- above. evidence ditches prayer awith for in- complaint concludes originated early as use cate that junctive equitable general relief. predeces- initiated Company. only pro- and the case conflict sors on this answered quantity point concerns the trial. The evidence introduced ceeded ques- through diverted originally toward the the Old was directed on sides both ditch, appellant’s parties Company witnesses testi- the relative tion of stream; plain not more than fying that the cause inches were and it early years. through it in the How- taken on persuasive evidence of a there is issue between them. ever matter at such .was period. use In extensive in more The court a dam appellant built across the Company, prior stream Company ditch, of the Old the intake appropriated the waters of the above 1917, had by appellees, mining currently in use diverted same in their and used creek operations quantity that the of 360 miner’s water operations brought A enacted territorial statute Company practically were Alaska, 1933) (§ 367, Compiled Laws of to a halt. aof locator substance that advanced arguments We turn to other its within includes claim which appellant. He contends a stream boundaries both banks of cause of complaint fails to state *3 any prior location the absence of (2) there was no valid that appropriation of waters of predecessors of the Com- of subsequent appro against be all entitled as ap- pany no of for the that notice reason priators much of the the use of as to propriation given, (3) that there was of necessary are thereof as appropriation made an of abandonment statute To a limited claim. predecessors, ap- that rights. It riparian law enacts of owner, riparian superior has a pellant, as facto post has no ex that the statute clear right stream. to the enactment, we have Prior to its as force. appropriate attack In the absence of out, riparian rights pointed of the doctrine upon complaint be we think must territory. apply in did not ap state facts sufficient to held to entitle Affirmed. pellees to some relief. There was no ob jection rela the introduction of evidence to Judge (dissenting). at priorities. No motion was tive to made part decree —the is from of a This of toward the conclusion the case directed appellees part was in favor of insufficiency And, as part of against That the decree noted, already the cause was tried appellees finding on a that was based on the that the matter at an made issue was the relative of propriation of Creek the waters of parties good purpose No the stream. year finding 1917. The to the by sending would be served back. case nothing all. did not based on at complaint here treat amended We as attempt prove they prove to allege, or proof. to conform to the predecessors in interest ever made or their the waters of of an principle any part So or thereof. Creek applicable riparian rights Alaska appealed is here from should the decree as recognized spe not there in the absence of be reversed. Dyke cial Midnight statute. Van Sun v. Cir., Company, Ditch Mining & 177 F. Rehearing. Petition for On territory require laws of do posting recording appropria of notice of or tion notice es of water formal is not petitioned has for re validity appropriation. to the sential proposition hearing. chief Dyke Mining Midnight Van Sun & petition is support the court Company, supra. complaint power to treat as lacked proof. conform to the Peti amended abandonment, question On says governing that the tioner rule con proof go while the the extent 3456, Compiled Laws tained uninterrupted showing a continuous and 1933,1 requires and that statute waters, appropriated neither user of amendment be made before submission except disclose an does it absence user of the case. periods perhaps brief of a or twenties. Mere 15(b) absence of Rules Rule Pro- Civil two cedure, 723c, user is not in itself U.S.C.A. evidence of section part: has abandoned. There was issues right “When not raised showing finding by pleadings such as would express no or implied parties, they effect. consent be any pleading proceeding may, or at “The time before be amend- striking justice, upon any trial, party, furtherance out the name of by correcting proper, any any be a mistake in terms allow or
such pleading other proceeding respect, or or when be amended the amendment does not substantially change party, adding name of a or alle- the cause of action by conforming gation cause, defense, pleading material to the like proved.” may, proceeding reason it like at the facts submitted, before the allow time cause had been respects they treated all as if pleadings. raised in Such amendment necessary may be -and the evidence cause them to conform to upon mo- raise these issues any party tion judgment; any'time, even after does not but failure so to amend affect the trial of these issues.” result of the applicable Whether the federal rules are inquire. trials Alaska need not we particular merely applica- This rule is generally principle prevailing tion *4 systems the states and territories code statutes, The Alaska chapter 78, seq. sections 3451 et Code, of the 1933 the main identical with those of the code states. Section provides: “No variance between the allegation in a pleading and material, be deemed- unless it shall have actually misled party the adverse
prejudice maintaining de- his action or * * * upon the fense merits Section 3452 states “When the variance not ma- terial, provided section, in the last court the fact to direct be found ac- evidence, cording immediate order amendment, costs.” without And 3461 provides that “The court every stage disregard proceed- error or defect in the ings which shall not affect the substantial
rights party.” adverse expressed fully here support- view Teeter, Black 561, 1 Alaska 564,
pages
Rehearing denied. Judge, dissents. SEAT PAD CO. v. FIRE-
EVR-KLEAN TIRE & RUBBER CO. STONE
No. 11784. Appeals, Eighth
April