Lowe
Lowe v. United States Smelting, Refining & Mining Co.
Opinion
dissent Opinion
Pope, J.
(dissenting).
I dissent from the order denying the petition for rehearing for the reason that in my opinion our judgment should be amended so as to remand the cause for a new trial to ■permit appellee to offer evidence of the performance of annual labor upon its claims.
It is true that when the case was tried, appellee proceeded upon the theory that such proof was not required, a view with which the trial court promptly agreed. In doing so appellee was not acting recklessly. We have just finished *474 deciding, now for the first time, an important question of property law for Alaska. It is a matter which previously has been in doubt, and I do not think the appellee should be forever foreclosed from showing, if it can, that the claims were represented, merely because its attorneys took too advanced a position on the former trial.
After all, the only important question is, Who owns these claims? If there be evidence available upon this question I think the court below should not be prevented from hearing it, merely by a process of reasoning that since appellee made the first error it should now be forever barred. I think such a case should never be terminated until the right of…
lead Opinion
The petition for rehearing is denied.