Lowe

In March, 1947, Evelyn Mahan executed a lease, covering certain mining claims in the Fairbanks, Alaska area, to James McDonald. In association with Charles Creavey and' James H. Pierce, he mined the claims under the lease until August, 1948, when the operation was discontinued. Mrs.. Mahan died in February, 1950, leaving a will which named Grace Lowe, as executrix and sole legatee. In February, 1953, Grace Lowe, as executrix and “sole heir” of the estate of Evelyn Mahan, commenced the present action in the District Court against McDonald and his associates. Five causes of action were alleged in the complaint. A trial before the court without a jury resulted in judgment for the defendants and the present appeal followed.

The fifth cause of action has been expressly abandoned and need not be considered further. The third and fourth causes of action, which present the question whether the trial court erred in taking judicial notice of a prior action between the same parties in the same court will be discussed later on in this opinion. The first cause of action was for unpaid royalty under the lease from Mrs. Mahan to McDonald. The lease required the lessee to pay a minimum of.…