Waskey

(concurring).

Congress has abolished the distinction between actions at law and suits in equity in Alaska, and has enacted a statute authorizing, pending an action, the provisional remedy of injunction upon certain prescribed conditions. The question here is: What is the proper construction of that statute? It provides for the issuance of an injunction pendente lite in two distinct classes of cases: First, cases where it appears by the complaint that the plaintiff is entitled to such relief; and, second, in any case when it appears by affidavit that a defendant is doing, or threatening to do, certain designated things, which would tend to render the judgment ineffectual. The language of the statute is so plain that discussion of its meaning would seem to be unnecessary. In the second class of cases providing for the remedy during the pendency of the action, there is no mention of the complaint or of any additional or supplemental pleading. The statute does not say that it shall appear from a complaint that the plaintiff is entitled to the temporary relief. It declares that it shall be granted on affidavits in any action where the specified injury is threatened. The fact should…

(after stating the facts as above).

The plaintiffs brought this suit in ejectment to recover the possession of a portion of a mining claim which the defendants had entered and ousted the plaintiffs. The value of the ground' in controversy consists in the gold-bearing earth, sand, and gravel contained therein. The defendants admit they are severing and extracting this gold-bearing material and depositing it in a dump on the premises. The extraction and removal of this gold-bearing material from the ground will necessarily destroy its value and render ineffectual any judgment that may be obtained in an ejectment suit for the possession of the ground. The plaintiffs, to protect their interests in this respect, have appealed to the remedy by injunction.

It is contended, on behalf of the defendants: (1) That the plaintiffs are limited in their remedy to a judgment in the action of ejectment restoring to them the possession of the premises in controversy, and to damages for their detention; (2) that plaintiffs are not entitled to equitable relief in an ancillary proceeding that would be broader than the relief to which they would ultimately be entitled under the prayer of the…