S. H. P. Vevelstad, William L. Pape, and Aurora Nickel Company, a Corporation v. E. Miles Flynn

230 F.2d 695 S. H. P. VEVELSTAD, William L. Pape, and Aurora Nickel Company, a corporation, Appellants, v. E. Miles FLYNN, Appellee. No. 14431. United States Court of Appeals Ninth Circuit. January 13, 1956. Rehearing Denied March 5, 1956. COPYRIGHT MATERIAL OMITTED R. E. Robertson, Robertson, Monagle & Eastaugh, Juneau, Alaska, for appellants. Faulkner, Banfield & Boochever, Norman C. Banfield, H. L. Faulkner, Juneau, Alaska, George F. Ward, John F. Dore, Seattle, Wash., for appellees. Before HEALY, POPE and FEE, Circuit Judges. POPE, Circuit Judge. 1 The appellee, as plaintiff in the court below, had judgment against the appellants-defendants quieting title to 45 unpatented lode mining claims located on Yakobi Island in the southwest part of Alaska about 130 miles by water west of Juneau. Upon sufficient evidence the court found that the plaintiff made valid discoveries 1 and had properly located these claims in accordance with the provisions of the federal and territorial statutes. 2 While appellant challenges the sufficiency of the evidence that appellee Flynn staked and located his claims upon the ground and marked the boundaries as required by the Act of Congress 2…

The appellee, as plaintiff in the court below, had judgment against the appellants-defendants quieting title to 45 un-patented lode mining claims located on Yakobi Island in the southwest part of Alaska about 130 miles by water west of Juneau. Upon sufficient evidence the court found that the plaintiff made valid discoveries 1 and had properly located *698 these claims in accordance with the provisions of the federal and territorial statutes.

While appellant challenges the sufficiency of the evidence that appellee Flynn staked and located his claims upon the ground and marked the boundaries as required by the Act of Congress 2 and the territorial statute, 3 in our judgment the testimony given on behalf of plaintiff abundantly supports the finding that the requisite posts and other monuments marking the corners, discoveries and center points were erected and located upon each claim, and that in each case the boundaries were blazed or otherwise marked so that they could be readily traced; further, that in each instance the requisite location notice was posted in compliance with the territorial statute.

The main question which confronted the trial court was whether at the time of…

On Petition for Rehearing.

In their petition for rehearing, which in general is but a restatement of the contentions made in their original briefs, appellants assert that this court overlooked the fact that the trial court found the descriptions in the location certificates for three of defendants’ claims (three Beach claims) to be sufficient. They suggest that we should have held those claims valid.

This Court did not overlook the trial court’s exception as to these three claims but expressly referred to it. What appellants overlook is that we approved and sustained the trial court’s finding that appellants’ locations “were not sufficiently marked on the ground”. As we stated, the evidence would warrant belief by the trial judge that the asserted markings of the locations on the ground by Paper “were purely imaginary”. This finding alone required a judgment that none of appellants’ claims were valid for the reason that they were not, any of them, marked on the ground prior to appellee’s locations. The mere fact that the descriptions in the recorded location certificates of three of defendants’ claims may have been adequate was unimport *704 ant, fomá locator may not acquire a…