Northern Mining & Trading Co. v. Alaska Gold Recovery Co.

(after stating the facts as above).

The Supreme Court has repeatedly held that orders such as this are not final and cannot be reviewed by writ of error. Luxton v. North River Bridge Co., 147 U.S. 337 , 13 S.Ct. 356 , 37 L.Ed. 194 ; Southern R. Co. v. Postal Telegraph Co., 179 U.S. 641 , 21 S.Ct. 249 , 45 L.Ed. 355 . The reason for the rule is obvious: “The case is not to be sent up in fragments by successive writs of error.” Luxton v. North River Bridge Co., supra. This rule should no doubt obtain here, unless there is some statutory provision to the contrary. Section 636 of the Compiled Laws of Alaska, relating to eminent domain, provides: “The plaintiff or defendant or any party interested in the proceedings can appeal to the United States Circuit Court of Appeals for the *356 Ninth Circuit from any finding or judgment made or rendered under this chapter, as in other cases.”

In the opinion of the writer the allowance of a writ of error to review the final judgment would fully satisfy the requirements of this section, thus making it harmonize with other legislation of Congress relating to the appellate jurisdiction of the federal courts. But, in Van Dyke v. Midnight Sun Mining…

(dissenting).

If I rightly understand the meaning of the language used in the majority opinion, I am unable to concur in the conclusion that “the main purpose of the taking * * * is to obtain a site for a plant and equipment to operate the mine.” As I read the record, the mining plant proper is, and is to remain, upon the plaintiffs’ claim. The site sought on defendant’s property is to be used only for one end of the aerial tram, with the incident power facilities requisite for its operation, referred to as a hoist. The measure of the use authorized is, of course, to be found in the order or interlocutory judgment. As therein defined, the uses, and the only uses, to which the plaintiffs are authorized to devote the site, are “to maintain and construct thereon an aerial tram and power line, with power, together with the necessary equipment to permit of operating, maintaining and keeping the same in repair, and using the same on the area * * * and that said user may include the erection of an aerial tram, with mast set within ten feet of the southerly boundary line of said tract; and not to exceed three cableway guy lines and three accompanying buckle guy lines leading from said…