Cascaden
Smith v. Cascaden
Opinion
Lead Opinion
Haven, J.
Thi.s is an action brought for the purpose of obtaining a decree that the plaintiffs are the owners and entitled to the possession of a certain mining claim situated on Cleary creek, in the Fairbanks mining district, Alaska, located on January 3, 1904, and described in the complaint as No. “13, below, on the second tier of benches on the right *660 limit of Cleary creek.” It appears from the evidence that plaintiffs’ claim, as located on the ground, overlaps a portion of a mining claim which the defendant Cascaden located on December 2, 1902. The controversy involves the question of the ownership and right to the possession of the strip of land common to both locations. The decree of the District Court was in favor of the defendants. The plaintiffs have appealed.
1. It will be seen from the foregoing statement that the location under which the appellees claim was madé prior to that of appellants, and must prevail, if valid; and, whether it was valid or not, is the general question presented by this appeal. The appellants contend that such location was not made in accordance with the laws of the United States, first, because the boundaries of the claim were not marked upon the…
Dissenting Opinion
Ross, J.
(dissenting).
The record shows without conflict that in the Fairbanks mining district, Alaska, where the piece of mining ground here in controversy is situated, there are what are called “creek” claims — that is to say, placer locations made on and along a creek — and next to them bench claims, called “first tier” or “side” claims, and next to them second tier bench claims, and so on. The evidence in the case further shows without conflict that the particular piece of ground in controversy is not in fact within any of the creek claims, but is on a bench and within one of the first tier or side claims. It is within the boundaries of the Owl mining location made on the 3d day of January, 1904, under which the appellants claim. The validity of this location does not seem to be questioned except on the ground that the particular piece of mining ground in dispute, was included in a prior location made by the appellee Cascaden in 1902, and was not, therefore, open to location when attempted to be included in the Owl location. Therefore the principal question in the present case relates to the Cascaden location.