Sakow

(concurring).

I concur in the views expressed by the main opinion, with one exception. In my opinion the objections to the instructions given by the court were not sufficiently definite to justify a reversal and I therefore place my concurrence in the judgment for reversal upon the ground that the instruction referred to in the main opinion concerning the validity of the notice of location of the Blue Bird should have been given, and it was error to refuse the instruction. In view of the fact that it does not change the result I feel it is unnecessary to elaborate my views.

Appellants, defendants below, and hereafter so named, appeal from a judgment in ejectment against them, the jury also awarding damages to appellee, plaintiff below, hereafter so named, for trespass in dredging gold from plaintiff’s “Good Hope” placer mining claim on Otter Creek, a tributary of the Iditarod River, Alaska.

Defendants’ answer denied plaintiff’s allegation that he owned the Good Hope claim; that defendants had trespassed on it, and that they had dredged the gold therefrom. The answer also alleged as an “affirmative defense” that Riley Investment Company was lessee from Sheppard of two placer claims, “Blue Bird” and “North Star”, prior in location to plaintiff, portions of which plaintiff had attempted to appropriate by his subsequent Good Hope location, and that the dredged gold was on the Blue Bird. -

Defendants introduced Sheppard’s recordation of the Blue Bird claim location and testimony and a map from which the jury could have inferred that the gold was dredg *343 -ed from within the Blue Bird’s boundaries. Since there was evidence that the defendants were not mere trespassers without colorable claim of right, plaintiff was required to prove his title as a…