1 Alaska 95 | D. Alaska | 1900
The first question presented by the motion for a new trial was “error of the court in refusing the continuance applied for by the defendant.” The court will, therefore, first consider this question. It may be well to recall the circumstances under which the case was originally set for trial. Mr. John R. Maloney, senior counsel for the defendant, was in court when counsel for plaintiffs moved the court to set the case for trial. Mr. Maloney urged the injury to his clients by the trial of the case before the close of the mining season, and asked that the case go over. The plaintiffs insisted upon an early trial, notwithstanding some offers of favor made by Mr. Maloney. The court suggested a later day for the trial of the case, whereupon Mr. Maloney stated very positively that, if the case was to be tried during the term, the sooner it was set for trial the better it would please him; that he would be ready for trial; and he warned the plaintiffs that they must also be ready. Under these circumstances the court set the case for trial two days later than the time suggested by Mr. Maloney. Thereafter Mr. Cobb, junior counsel for the defendant, on the day the case was for trial, appeared before the court, and presented the affidavit of Mr. Maloney setting out the absence of his clients, the inability of Hanson to attend court because of a lame back, and also setting forth the testimony of Hanson and Sutherland, two of his clients. On the presentation of this motion, and on the ioth day of October, the plaintiffs filed several affidavits, showing that Hanson was in good health, the means of travel by which witnesses could have come to court from Porcupine, and that there was nothing in the situation that should necessarily cause the absence of the defendant from court, but, on the contrary, showing very clearly that they could have been present at the trial, unless they had chosen willfully to absent themselves. The strange part of the proposition is that
I cannot permit this matter to pass without referring to a statement made on the third page of defendant’s brief presented in support of its motion for a new- trial: “In the case at bar the plaintiffs were allowed to force the defendant to a
But let us consider the real situation. The several defendants were at work 30 or 35 miles from Haines, within 3 miles of the Klahena river, from which point, at the mouth of the Porcupine, boats could have conveyed them in a few hours, and the steamer Alert, which made its trips every second day, would have brought them either on the 9th or nth to Skag-way, the same day on which they left their homes on the Porcupine. They had been notified to be present, had been notified by their counsel of the day set for the trial, and yet, while only a day’s travel distant from the court, they deliberately chose to remain away. And yet their counsel has the supreme hardihood to, come into court and say that the defendants were forced into trial in almost “indecent haste.” The facts and circumstances of the case not only show that the trial was set for a day desirable and satisfactory to senior counsel for defendants — and for that reason alone the defendants cannot complain — but it also clearly appears that the application for a continuance on the day set for trial was a mere subterfuge, not made in good faith or in the interests of justice. If the court were to denounce this matter as it deserves, it would be necessary to say more harsh and unkind things than the court desires to utter on this occasion. It is sufficient to remark that the conduct of counsel has not been worthy, and it is hoped that the result thereof will prove
The next objection made by counsel is that the third finding of fact returned by the jury is not sustained by the evidence. The jury found from the evidence that Hanson had not, prior to August 3d, corrected the boundary line of his claim by marking the same on the ground so as to make the north boundary line of his claim coincide with the south boundary of the Wooden claim. The jury also found that the initial stake of Hanson’s location of October 6, 1898, was at the dead tree pitched down the embankment with the top in the ground at the creek bed, referred to in the testimony of Cahoon. The defendant does not question the correctness of this finding; indeed, the evidence in the case is overwhelming-in support of this finding by the jury. The notice of location that was placed on the tree indicated by the finding of the jury claimed 1,500 feet running with the creek, and was recorded by Hanson in the mining record at Porcupine and in the public record at Juneau, which said location notice is in the words and figures following:
“Notice is hereby given that I, the undersigned, have, this 6th day of October, 1898, located a placer mining claim, 1500 feet, running with the creek, and 300 feet on each side of center of creek, known as McKinley creek, in Porcupine mining district, running into Porcupine river. This claim is the west extension of Dan Sutherland’s claim, about 4000 feet above First Palls in district of Alaska.
“James Hanson, Locator.
“Witness: Dan Sutherland.”
This notice does not seem to have been amended at any time since the original record thereof. The evidence of the disinterested witness who was present when said location was made clearly shows where the initial stake was placed, and that the claim of Dan Sutherland ran in ope direction therefrom and the claim of Hanson in the other direction
The next objection taken is to the fifth finding of the jury that the excess of ground in Hanson’s original location had
As to the sixth finding of fact, it is only necessary to refer to the evidence in the case, showing that Hanson claimed by his two notices all the ground between his original notice of October 6th and the Wooden claim, to make it appear that the answer of the jury that there was an excess of ground in the Hanson location was undoubtedly correct. As to the number of feet of the excess ground in the Hanson
The-next objection-of counsel in his motion for a new trial was- to the eighth finding of the jury, which is -general, and to the effect that the plaintiff had the better right to the land in controversy. Is this finding of the jury supported by.the evidence in the case? Leaving the number of feet in dispute out -of the question, and confining the answer to the -single proposition whether the plaintiff or defendant had the better r-ight to whatever excess there was in the Hanson location,- it must be conceded that the finding is supported by the weight of evidence.
•The several objections raised by the motion for a new trial.are thus answered; and, if the case were an action at law, the court would go no further in considering the motion of the defendants for a new trial or for a rehearing, but, as it is- a suit in equity, the court is-not bound by the findings of -the jury, and may make its own findings under the evidence, or may adopt the findings of the jury for its own, if it thinks them to be sustained by the evidence. The court will consider the findings as a whole, and more-particularly, the general finding that the plaintiff has the better right to the ground in controversy. It may be well to remember that the defendant Hanson, by the terms of his notice, clairm ed a piece of land-1,500 feet in length by- 600 feet in width, making as a whole 20 acres and a fraction, or more ground than any man is allowed to take as a single claim under the mining laws of the United States. Can a claim to mineral
Embracing by accident more than the lawful quantity of ground within a location has never been held, unless the excess was very great, to invalidate the location; but the question of. taking more land within a claim as staked by faulty measurement and that of claiming by the terms of a location notice are entirely different. In the one case the error is merely accidental; in the other the excess is taken with deliberate purpose. Question: Does a mining notice, which includes by its terms more land than is permitted by the mineral laws of the United States, invalidate the location? The court is not aware of any decision upon this precise point,' and, while the question is not passed upon at this time,' it would seem that such a notice clearly in violation of the law would invalidate the entire location. This suggestion is made because of other locations of like character, that the parties in interest may take warning in advance, and so correct their locations as to avoid the danger that is presented here. The court is of the opinion that under the evidence in this case and all the facts and circumstances surrounding this trial, and as a matter of justice, the plaintiff has the better right to the excess in the Hanson claim, and that he is entitled to have his right and title quieted by the decree of this court.
Specific findings of the court in accordance with this opinion will be filed in this case, and the motion by the defendants for a new trial is overruled. To which ruling of the court defendants, by their counsel, except.