8 Alaska 398 | D. Alaska | 1933
This suit was brought by the plaintiff to quiet her title to certain placer mining ground described in her complaint, to which she claims title based upon a location thereof made by her October 19, 1931, as creek claim No. 6 above Discovery, Cleary creek, in the Fairbanks recording precinct, Fourth judicial division, territory of Alaska. The evidence shows, and plaintiff admits, that a claim of the same name covering at least a major portion of the same ground was located in 1902 and was kept alive by compliance with the mining law relative to assessment work until 1928, and that prior to 1907 the then owner of that claim joined in selling as a divided interest the lower or downstream half thereof, and that defendant Jesse Noble, then the owner of claims 7 and 8 above Discovery on Cleary creek, which adjoin one another and are the next claims lying upstream from claim No. 6 above, which is in dispute,
Defendant Thompson’s testimony that she had loaned her sisters $3,000 to equip the bank at Dome City is not categorically denied by defendant Noble. I find unbelievable his testimony that he believed that the interest in No. 6 was returned to him. He was a businessman, banker, and miner, had the advice of competent lawyers in the very matter under investigation, who drew up the stipulation dismissing his action referred to above against defendant
It is claimed by plaintiff that No. 6 above is not contiguous with No. 7, in that only the southwest- corner
Such testimony was admitted, and, while it was mostly negative in form, no person except Jesse Noble testified that he had ever heard of any fraction or vacant ground between 6 and 7, and there is no escape from the conclusion that dating from the time the original boundaries were freshly and plainly marked on the ground the southern boundary of 6 has been considered and established as coincident with the northern boundary of 7 and was so recognized by those who were familiar with the stakes and other boundary markings. Contradicting Jesse Noble’s statement that there was such vacant ground, we have his affidavits of assessment work for two successive years in
I find that the southern boundary of 6 as originally located was coincident throughout its length with the northern boundary of 7, which, however, extends beyond the boundary of 6 in a westerly direction. This finding con
Even if, as claimed by plaintiff, there were vacant ground belonging to the United States between 6 and 7, it does not necessarily follow that work beneficial in fact to No. 6 and done for the benefit of No. 6 could not be done on 7 and 8 under the provision for grouping. The effect of grouping is to relax to some extent the tests by which assessment work may be held to apply. The statute permitting expenditure upon one of a group of gold placer or quartz claims (title 30 U.S.C.A. § 28, section 136, Compiled Laws of Alaska) for the benefit of the group provides that such claims must be held in common, but says nothing as'-to contiguity. It is significant that by statute (title 30 U.S.C.A. § 102, section 183, C.L.A.) contiguity is made a condition of grouping for assessment work oil land claims located as placers.
Among the apparent reasons for the judge-made requirement that only contiguous gold placer or quartz claims may be grouped is that, in cases of tunnels, shafts, and perhaps, in some instances, ditches constructed upon one or more claims for the benefit of those claims and some third noncontiguous claim, the owner of intervening ground, by refusing to allow right of way across such ground, might' prevent access to such shaft or the completion of tunnel or. ditch, thereby practically preventing such work from benefiting the noncontiguous claim, but, in the case of ditches' where the intervening ground is public land of the government of the United States which by statute (title 30 U.S. C.A. § 51, section 151, C.L.A., and title 43 U.S.C.A. § 956) has recognized rights of way for ditches for mining or other beneficial use across such unappropriated ground, and ain jurisdictions such as Alaska, where by the exercise of the rights of eminent domain a right of way may be condemned across public ground for mining ditches (Van Dyke v. Midnight Sun Mining & Ditch Co. [C.C.A.] 177 F 85), there is no way to prevent the use of such ditch for
Chambers v. Harrington, 111 U.S. 350, 4 S.Ct. 428, 430, 28 L.Ed. 452, is probably cited more than any other case as authority for requiring contiguity. In that case, after discussing at length the reasons for requiring assessment work and for allowing grouping the court, speaking of conditions allowing grouping, says: “It is equally clear that in such case the claims must be contiguous, so that each claim thus associated may, in some way, be benefited by the work done on one of them.” In that case the development work claimed as group work was performed by sinking a shaft on a quartz mine, which, as pointed out above, could be prohibited from being of benefit to a noncontiguous 'claim provided an intervening private owner refused a right of way through his claim. Furthermore, the claims grouped in the Chambers Case were contiguous; therefore the question of contiguity was not there in issue, and the Supreme Court was there considering the applicability of work on a shaft, and their general statement was made with that in mind and should not be considered with reference to the application of work on a ditch. At best its general statement quoted above was dictum. Hain v. Mattes, 34 Colo. 345, 83 P. 127. In Big Three Mining & Mill. Co. v. Hamilton, 157 Cal. 130, 107 P. 301, 305, 137 Am.St.Rep. 118, the Supreme Court of California said: “Undoubtedly, the better authority supports the contention that assessment work may be done upon one of a group of claims owned in common, even though the claims are not all adjoining” — citing Snyder on Mines, p. 444; Altoona Q. M. Co. v. Integral Q. M. Co., 114 Cal. 100, 45 P. 1047. In the Big Three Mining & Milling Co. Case, as well as In Chambers v. Harrington, the claims involved were adjoining, and the statement of the court was dictum, but the case is well reasoned and invites careful reading. In Lindley on Mines (3d Ed.) § 631, p. 1558, that eminent authority, speaking of group assessment work, says:
*412 “Underneath public land not claimed by anyone he (the claimant) could undoubtedly prosecute such work and acquire an easement at least when the work was completed, and in States where mining is a public use, condemnation proceedings would enable him to secure his right of way and thus render it possible for him to prosecute work outside of his claims and entitle it to be credited. In other States, where condemnation for mining purposes is not recognized and the surface of intervening ground privately owned by others, in the absence of an agreement permitting such work to be continued underneath such intervening ground, there is a valid reason for not crediting it to the claims thus separated from it.
“The rule is well settled that work done outside of a claim or group of claims, if done for the purpose and as a means of prospecting or developing the claim, as in the case of tunnels, drifts, etc., is as available for holding the claim or claims as if done within the boundaries. One general system may be formed, well adapted and entered into, to work several contiguous claims or lodes, and, when such-is the case, work in furtherance of the system whether done within or without the claim or claims is work on the claims intended to be developed.”
This statement of Mr. Lindley recognized the principles which it seems to me apply in this case.
Whether noncontiguous claims may be grouped depends upon the circumstances of each case, the nature of the work, the character of the ground grouped, the plan for common development, the ownership of the intervening ground, the- existence of an arrangement for right of way across such ground; the true tests being, Can the work be made applicable to all the ground, and does it tend to the development of the group, and was it made in good faith for that purpose?
Even if I did not find that 6 and 7 were contiguous, I would still hold that the work which was done on the ditch
It is contended in this case that, since Mrs. Thompson was not a co-owner with Jesse Noble in the upper half of 6 and in 7 and 8, he could not group 6, 7, and 8 for assessment work. The statute providing for grouping does not say that the claims to be grouped must be owned by tenants in common. It says that the claims must be held in common, which I take it means simply that there must be a common right in the person doing the assessment work to do such work on each and every claim in the group and incidentally to determine how that work shall be done. No case has been pointed out to me where this statute was construed to mean that a single person holding two or more claims could not group them for the purposes of assessment work, nor do I see any reason why such a decision should be rendered. Every consideration which could have moved Congress to allow grouping by several who were tenants in common in a group of claims would be equally applicable to a single individual owning a group of claims. As a co-owner, Jesse Noble had the right independent of his agreement with Nellie Thompson binding him to keep up the assessment work, and especially under that agreement, to do assessment work for the benefit of No. 6 and to choose where and how it should be done. I cannot conceive that he lost that right merely because her cotenancy only extended to the lower half of No. 6. Furthermore, it is not necessary that 6 should be one of a group in order that work done outside of its boundaries should be applicable as assessment work for that claim. Assessment work may be done for the- benefit of a claim either on other claims or upon public land, provided it is actually done for the benefit of such claim and such work is in fact beneficial to the claim. Section 631, Lindley on Mines, quoted above. When work done outside the boundaries of 6 was claimed as assessment work applying to 6, the burden was upon the owner of 6 to show that he intended such work to benefit
Even if 7 and 6 are not contiguous and even if Jesse Noble was prohibited from grouping 6 with 7 and 8, I should still hold that the bringing of the water to such a point upon 7 that it could be readily used on 6, in connection with the testimony given that it was intended to be used on 6, would constitute good assessment work for 6.
I am satisfied from the testimony in this case that during the labor years 1930 and 1931 Jesse Noble in good faith for a valuable consideration caused water to be brought to where it could be used on 6 with the intention théreby to develop 6 and ultimately 7 and 8, and that the work done in bringing that water was applicable to and inured to the benefit of the lower half of 6 as well as the upper half; hence that 6 was not at the time of plaintiff’s relocation vacant unappropriated public land and that plaintiff’s attempted relocation was void.
During the argument at the close of this trial, defendant Thompson suggested that in making her location plaintiff had not conformed to the law in various particulars. The case was tried entirely upon the theory that, if the ground located was open for location on October 19, 1931, plaintiff’s location was valid. I find that plaintiff did substantially comply with the acts of location required by law, but that the ground covered by plaintiff’s location was not open for relocation.
It is also urged by defendant Thompson that I should find that her cotenant Jesse Noble and the plaintiff conspired to defraud defendant Thompson of her interest in No. 6 and that plaintiff does not come into a court of equity with clean hands. In the face of the testimony of plaintiff and Jesse Noble to the contrary, I am very strongly of the opinion that prior to plaintiff’s attempted location of 6 they had an understanding about that location and that plaintiff made her attempted location at the instance of Noble and with some understanding that he should share in the ground after location. The terms of that understanding are not before me, and my belief that it existed is wholly based on circumstantial evidence that does not tend to reveal the exact or proximate terms of that understanding. There is nothing in the evidence in any way tending to show that Jesse Noble fraudulently or at all failed to keep up his assessment work, and I am not prepared to make a finding that in 1931, prior to plaintiff’s location, he did not in good faith believe that under the law his assessment work did not inure to the benefit of 6, nor to find that the plaintiff, who owed no obligation to defendant Nellie Thompson, had anything whatever to do with any alleged defects in the
Findings and judgment may be drawn in accordance with this opinion.