123 F. 399 | 9th Cir. | 1903
On the 6th day of February, 1899, the appellant made application at the local land office at Sitka, Alaska, for the entry and patent of a certain piece of land in the town of Juneau as a lode claim designated in the application as “Mineral Survey No. 316.” Within the 60-day period provided by statute for the publication of the notice of the application for patent, the appellee filed in the Sitka land office his adverse claim, and within 30 days thereafter brought this suit in the court below in support of his claim. Upon issue joined testimony was taken as to the location of the claim and its boundaries, the occupation of a portion of it as a naval reservation, the occupation and possession of the remainder including the portion in controversy, as a part of the town site of Juneau, and the character of the land, whether mineral or non-mineral. Upon this testimony a decree was entered in favor of the appellee, and from this decree the present appeal is prosecuted.
The appellee has interposed a motion to dismiss the appeal, upon the ground that there is now no actual controversy involving real or substantial rights between the par
The original complaint in the present action was filed in the district court of Alaska on the 6th day of May, 1899. The complaint alleged that the plaintiff and his grantors had been, and that the plaintiff was at the time of the commencement of the action, the owner, in possession and occupation, of the pieces or parcels of land in controversy; that the plaintiff claimed the legal right to occupy and possess said premises by virtue of his occupation and possession, in full compliance with the local laws and rules and the acts of Congress of May 17, 1884, 23 Stat. 24, c. 53, and March 3, 1891, 26 Stat. 1099, c. 561, and by actual prior possession of the public domain of the United States; that on or about February 6, 1899, the defendant wrongfully entered upon the premises embraced within the exterior lines of survey No. 316, known as the Bonanza Lode Mining Claim, and filed her application for patent in the United States
The defendant demurred to this complaint, and the demurrer was sustained, the court holding that, the plaintiff being in possession of the land in controversy, a suit in equity to quiet title should have been brought, and that for that purpose the complaint was insufficient. The complaint was thereupon amended in conformity with the opinion of the court. In this amended bill, filed October 30, 1900, the history of the plaintiff’s title to lots 1, 2, and 3, in block 21, is traced through the possession and occupation by plaintiff and his grantors from the year 1881 down to the date of the commencement of the action, and the title to lot 7, in block 20, is traced in like manner from the year 1882. To this amended bill of complaint the defendant appeared specially, and moved to strike the bill from the files and dismiss the cause. This motion was denied, and thereupon the defendant demurred to the bill, and, the demurrer being overruled, the defendant answered upon February 7, 1901, and upon the issues thus presented the testimony in the case was taken.
It appears from the record that John Olds, acting as trustee for the occupants of certain lands in a settlement in Alaska known as the town of Juneau, filed an application in the land office at Sitka on the 10th day of June, 1893, for a patent for 121.52 acres of land described in the application by metes and bounds. This application was allowed. October 13, 1893, and the purchase price covered by the entry was paid. On May 19, 1894, Anna Goldstein, the appellant in this case, filed a protest in the land office against the issuance of a patent to the trustee for the land covered by the entry, alleging her ownership of the mining claim in conflict with the said town site, and alleging the mineral character of the land. Such proceedings were thereupon had in the land office at Washington, and before the Secretary of the Interior, that on October 6, 1896, the town site was ordered canceled by the Secretary of the Interior as to
The cause of action, as stated by the appellee as the plaintiff in the original complaint, was briefly this: That he was in the occupation and possession of certain lots in the town of Juneau under authority of law; that the defendant, the appellant here, had wrongfully entered upon the premises and filed her application in the land office, and entered the land as a mining claim. The amended complaint enlarged the statement of facts upon which plaintiff claimed the right to occupy and. possess the lots in controversy, and demanded appropriate relief, but did not change the cause of action or the subject-matter of the controversy. The plaintiff claimed the lots under a town site entry made on October 13, 1893. The defendant denied plaintiff’s right to the premises, and claimed the lots under a mining entry made' on the 6th day of February, 1899. Conceding that the action was for the purpose of determining the right of pos
The appeal is therefore dismissed.