20 F.2d 5 | 9th Cir. | 1927
Lead Opinion
(after stating the facts as above).
The Supreme Court has repeatedly held that orders such as this are not final and cannot be reviewed by writ of error. Luxton v. North River Bridge Co., 147 U.S. 337, 13 S.Ct. 356, 37 L.Ed. 194; Southern R. Co. v. Postal Telegraph Co., 179 U.S. 641, 21 S.Ct. 249, 45 L.Ed. 355. The reason for the rule is obvious: “The case is not to be sent up in fragments by successive writs of error.” Luxton v. North River Bridge Co., supra. This rule should no doubt obtain here, unless there is some statutory provision to the contrary. Section 636 of the Compiled Laws of Alaska, relating to eminent domain, provides: “The plaintiff or defendant or any party interested in the proceedings can appeal to the United States Circuit Court of Appeals for the
In the opinion of the writer the allowance of a writ of error to review the final judgment would fully satisfy the requirements of this section, thus making it harmonize with other legislation of Congress relating to the appellate jurisdiction of the federal courts. But, in Van Dyke v. Midnight Sun Mining & Ditch Co. (C.C.A.) 177 F. 85, this court held that the provision in question was taken from the Code of Civil Procedure of Montana, and that the Supreme Court of that state had construed it as permitting or allowing the review of an interlocutory order such as this. Whatever doubt we might entertain as to the proper construction of the statute if the question was an open one, we do not now feel that we would be justified in overruling that decision. The question is one of no general importance, aside from the fact that it goes to the jurisdiction of'the court, because it would seem to matter but little to the parties whether the order is reviewed now or by writ of error'to the final judgment. And if the local statute conferred the right of review, as was held in the Van Dyke Case, it has not been superseded or repealed by subsequent general legislation. United States v. Winslow, 227 U.S. 202, 33 S.Ct. 253, 57 L.Ed. 481; Abbate v. United States (C.C.A.) 270 F. 735. The motion to dismiss is therefore denied.
While the eminent domain statute of Alaska authorizes the taking of private property for roads, tunnels, ditches, flumes, pipes, and dumping places for working mines and outlets, natural or otherwise, for the flow, deposit, or conduct of tailings or refuse matter from mines, and sites for reservoirs necessary for collecting and storing water, the only provisions that could at all authorize the taking in this case are to be found in subdivision 10 of section 633 of the Compiled Laws of Alaska, and the Act of April 28, 1913 (Session Laws of Alaska, 1913, p. 118). The former provides that the right of eminent domain may be exercised in behalf of “tramway lines.” The latter provides that the use of water for mining, power, and municipal purposes, and the use of pole and tower lines for telephone and telegraph wires for aerial trams, and for the transmission of
It is quite manifest to us that these statutes do not authorize the taking of private property for any such use as is here contemplated. The statutes only authorize the taking of private property for rights of way for pole and transmission lines and rights incidental thereto, or, in other words, “for the setting of poles or the construction of towers upon which to string wires for telephone and telegraph lines, and lines for the transmission of electric light or power for the operation of aerial trams and to permit of maintaining the same and keeping it in repair.” In this case the main purpose of the taking as appears from the allegations of the amended complaint and more particularly from the findings of the court, is to obtain a site for plant and equipment to operate the mine which cannot be maintained on the Combers Right claim because of the periodical inflow of sea water. Whether the Legislature could authorize the taking of private property for any such purpose we need not inquire because it has not done so. Such statutes are universally construed strictly, and there is an additional reason for such construction where a differ
The decision of this question would seem to be decisive of the case and we deem it unnecessary to consider other questions discussed in the briefs of counsel, such as the right of an administrator to maintain an action of this kind. However, if the plaintiffs should elect to claim only such rights as they are entitled to claim under the law, after the case is remanded, the latter question is worthy of serious consideration.
Reversed and remanded to the court below for further proceedings in accordance herewith.
Dissenting Opinion
(dissenting).
If I rightly understand the meaning of the language used in the majority opinion, I am unable to concur in the conclusion that “the main purpose of the taking * * * is to obtain a site for a plant and equipment to operate the mine.” As I read the record, the mining plant proper is, and is to remain, upon the plaintiffs’ claim. The site sought on defendant’s property is to be used only for one end of the aerial tram, with the incident power facilities requisite for its operation, referred to as a hoist. The measure of the use authorized is, of course, to be found in the order or interlocutory judgment. As therein defined, the uses, and the only uses, to which the plaintiffs are authorized to devote the site, are “to maintain and construct thereon an aerial tram and power line, with power, together with the necessary equipment to permit of operating, maintaining and keeping the same in repair, and using the same on the area * * * and that said user may include the erection of an aerial tram, with mast set within ten feet of the southerly boundary line of said tract; and not to exceed three cableway guy lines and three accompanying buckle guy lines leading from said mast to deadmen buried within said area as may be necessary to support said mast, and together with hoisting engine and cables leading therefrom to said mast.”
I therefore think the order should be affirmed. But, if it is reversed, the lower court should be advised more specifically of the views of this court touching the scope of the statute.' And I also think we should rule upon the other questions submitted, by which defendant challenges the right' of plaintiffs to invoke the statute at all, or to have condemnation for any purpose. Otherwise, if plaintiffs proceed with the suit, I fear it will be found that but little, if any, progress has been made by its appeal, toward a final determination of the controversy.
