186 F.2d 705 | 9th Cir. | 1950
This is an appeal from a judgment in favor of appellee, defendant below, entered pursuant to a directed verdict. The suit is grounded on a lease and is essentially one in damages for breach by the lessor of the implied covenant of quiet enjoyment.
The lease was of the Eastern Star placer mining claim owned by appellee’s intestate, Mike Stepovich. It was executed by the latter in February of 1942 for a term ending November 1st, 1943. Appellants as lessees were to have
The evidence is that they entered upon the ground immediately after the execution of the lease. The season being winter, the weather was cold and the ground heavily covered with snow. The shaft through which they were to operate was 76 feet in depth and was largely filled with ice. From its bottom a tunnel or drift, also ice filled, extended for a distance of about a hundred feet. After repairing the hoist they proceeded to remove the ice, these preliminary tasks consuming more than a month of time. They then extended the drift an additional hundred feet, and finding no pay turned at a right angle and drifted a distance of two hundred feet where good values were for the first time encountered. Here, in an exposed face of 30 to 60 feet, they had gravel from which they were able to get values of as much as a dollar and a half a pan, or shovelful. The entire operation up to' this point appears to have consumed the period from February' through the early part of August, 1942. During the period they had seven men working much of the time, including in the number the four lessees themselves.
It may be well at this juncture to interpolate some observations concerning the attitude and activities of the lessor, Stepovich, while the right-hand drift was in course of being driven. Kupoff, one of the appellants, testified in effect that Stepovich kept close watch of the operation, took frequent pannings, and sought to interfere with the program
While this drift was being extended sufficient pay dirt was encountered “to pay expenses,” two cleanups being made, one of $1400 and the other of $1600. There was still a third cleanup-, but the lessees appear not to have been given the opportunity of taking the gold content from the sluices. The evidence as to the third run appears only in part or by suggestion, it being either stricken or excluded by the court. For a period of about 12 days during the middle part of August quantities of the good pay dirt in the face were being minded and removed. A considerable amount had been accumulated, and at the time of the claimed ouster presently to be described about 200 yards of this dirt remained unprocessed in a dump on the surface. It is gatherable that the gold from the balance remained in the sluice boxes.
On August 21st, while affairs were in this posture, Stepovich filed suit against the lessees and had a writ of attachment issued commanding the Marshal to attach and safely keep “all the property of said defendants not exempt from
A custodian of the name of Ryland was placed on the ground by authority and direction of Stepovich, who paid for his services. On the day of the seizure appellants left the premises and went to town, apparently leaving behind their blankets and the clothing in their suitcases. There is an offer of proof in the record (erroneously rejected by the court as having no bearing on the issues) that they had to and did obtain a letter from Stepovich to the custodian permitting their return to the claim for the purpose of getting these personal belongings. Also in the record is evidence tending directly or circumstantially to show that subsequently, and during the term of the lease, Stepovich reentered the ground, processed the gravel dump, and cleaned up the sluice boxes.
We turn now to the items in Stepovich’s complaint. The lease carries a provision that appellants were to have the use of a 22 caterpillar during the full period of the tenancy at a rental of $500 for the period, $250 of this amount
The ultimate disposition of Stepovich’s suit shows that the attachment was wrongful, and it further evidences the fact that the writ was employed as an effective means of ousting the lessees or substantially disabling them from exploiting the leased premises. The lessees answered the complaint and pressed for a trial, whereupon Stepovich on November 24, 1942, took a voluntary non-suit. By this date, so the testimony runs, winter had set in, the thermometer stood at 42 to 45 degrees below zero, and the shaft and drifts had again become blocked with ice, rendering the ground unworkable without repetition of the expensive and time-consuming labor of the previous spring.
Stepovich later died, and in June of 1945 appellants presented a claim against his estate predicated on the lease and their wrongful eviction therefrom. The claim was for $6,791.29 for the performance of nonproductive preparatory work and the expenditure of money in connection there
At the conclusion of the evidence for the plaintiffs the court directed the jury to return a verdict for the defendant. One ground advanced was that the action is in tort and was barred by a territorial statute prescribing a two-year limitation for tort actions.
It is clear from our discussion that the reasons .stated are untenable and that in directing a verdict the court fell into gross error. The applicable statutory limitation is that prescribed for actions for breach of contract, which is six years.
As to actionable violation of the lease, there was evidence of an eviction, either actual or constructive, sufficient to satisfy the applicable legal rule, namely, unjustified conduct of the lessor and proceedings taken under his authority with the intention and effect of depriving the lessees of the beneficial enjoyment of the premises, or materially obstructing or interfering with such enjoyment.
The return was produced and identified by the chief deputy in the Marshal’s office who had served continuously as such deputy since 1936. It was made and signed by “Stanley J. Nichols, United States Marshal for the Territory of Alaska, Fourth Division, successor in office to J. A. McDonald, Former United States Marshal.” It states that the writ was received August 21, 1942, and was thereafter duly executed on August 22nd “by taking into my possession the following described personal property, to-wit: The dump and contents of the sluice boxes; merchandise and groceries in mess house; gasoline, grease and fuel oil, cord wood and timbers, used in connection with such mining operations, and upon order of the plaintiff’s attorney, E. B. Collins, instructed the miners engaged in said mining operations to leave the. premises, and by authority of the plaintiff, permission was given to use the cat and battery charger to remove their personal belongings from the premises, and to return the cat to where it was when they were through with it. At which time and place, I appointed Emil S. Ryland as custodian, at the rate of $8 per day.”
Reversed and remanded with directions to grant a new trial.
While the situation is not clear, it is inferable that the pay dirt, or gravel, in the claim carried a heavy overburden necessitating underground operations.
The territorial statutes do not disable a party suing on a claim against an estate from testifying as to transactions with the deceased. There is a provision in § 58-6-1, Alaska Compiled Laws 1949, permitting, in such suits, offsetting evidence of statements of the deceased whether oral or in writing concerning the same subject matter.
See. 55-2-7, Alaska Compiled Laws Annotated 1949.
Sec. 55-2-4, Alaska Compiled Laws Annotated 1949.
See generally 52 C.J.S., Landlord and Tenant, § 445, and authorities there cited.
The territorial statute, § 55-6-78, Alaska Compiled Laws Annotated 1949, provides that the return shall be made when the writ is “fully executed or discharged”.
7 C.J.S., Attachment, § 245.
7 C.J.S., Attachment, § 252b (2) (d).