Jones
Jones v. Wild Goose Mining & Trading Co.
Opinion
Lead Opinion
Hunt, J.
This is an action in ejectment brought by defendants in error, plaintiffs below, to recover possession of a certain piece of placer mining property in Alaska, and for damages.
. There is no substantial conflict in the evidence as to the material facts: On the 1st day of January, 1901, Harry M. Ball located the Navajoe placer claim, which, by the notice of location, and the recorder’s certificate, contained a tract of land 1,320 feet long and 660 feet wide, i. e., an area of just 20 acres; but, as actually marked upon the ground by the boundary stakes, there was by inadvertence and honest mistake embraced within the claim an excess amounting to slightly over 2j^ acres, so that the claim really covered 22.531 acres, instead of the 20 acres allowed by law.
The Wild Goose Mining & Trading Company and Frank J. Kolash, defendants in error, succeeded to the title of the locator Ball prior to the commencement of this action.
In July or August, 1908, one Van Orsdale had been negotiating with defendants in error for a lease on a portion of the Navajoe claim, and had spoken to plaintiffs in error with a view to having them take over said lease and work the ground. Thereafter Van Orsdale…
Dissenting Opinion
Gilbert, J.
(dissenting).
Conceding that the plaintiffs in error could not lawfully make their location at the time when they attempted to make it, the question still remains whether or not the defendants in error had at the time of the commencement of the action such title that they could maintain ejectment against the plaintiffs in error who were in possession of the disputed premises. The plaintiff in ejectment must recover, if at all, on the strength of his own title and not on the weakness or defect of his adversary’s title. In the absence of fraud or bad faith, a mining claim which includes more ground than the law allows is not entirely void, but is void only as to the excess. Such is the language of numerous decisions and of the text-writers. The question arises: What portion of the excessive claim shall be deemed to be the excess? In the case of a lode claim located under regulations or a statute limiting the side lines to a certain width on each side of the vein or the discovery shaft, if the claim as marked is of greater than- the permitted width, it is easy to ascertain where and what is the excess, and it would seem that the excess is open to immediate location by another.…