McKinley Creek Mining Company v. Alaska United Mining Company/Opinion of the Court
The assignments of error present for review the rulings of the court upon the admission of testimony, the correctness of the court's instructions to the jury, and the sufficiency of the evidence to justify the judgment.

We may dispose of the rulings on the admission of testimony summarily. They are not precisely indicated by counsel in their brief, and to review them with a detail of the evidence would unduly extend this opinion. It is enough to say that we have examined the evidence and considered the rulings, and do not discover any prejudicial error in the latter. Besides, it is questionable if such rulings are reviewable in an appellate court. Wilson v. Riddle, 123 U.S. 608, 31 L. ed. 280, 8 Sup. Ct. Rep. 255; Huse v. Washburn, 59 Wis. 414, 18 N. W. 341; Peabody v. Kendall, 145 Ill. 519, 32 N. E. 674.

For an understanding and consideration of the other contentions of appellants it is only necessary to indicate the propositions which the evidence of the parties tended to establish. On the part of the plaintiffs (appellees) the evidence tended to show that Dan. Sutherland, James Hanson, William Chisholm, and Jack Dalton, who compose the appellee company, and Peter Hall, and one Hawes, and C. P. Cahoon, were working at Pleasant camp in Alaska for William Chisholm on and prior to October, 1898. Prospecting on the river Porcupine was resolved on to be done by Hanson, Sutherland, and Cahoon, and the following power of attorney was given to Cahoon:

Know all men by these presents that Peter Hall, William Chisholm, William S. Hawes, of Pleasant camp, British Columbia, have made, constituted, and appointed, and by these presents do make, constitute, and appoint, C. P. Cahoon, of Pleasant camp, British Columbia, our true and lawful attorney, for us and in our names, place, and stead, to locate a mining claim in the territory of Alaska.

In testimony whereof we have hereunto set our hands and seal      this 4th day of Oct., A. D. 1898.

Peter Hall. [SEAL.]

Wm. A. Chisholm. [SEAL.]

Wm. S. Hawes. [SEAL.]

Signed, sealed, and delivered in the presence of—

Dan. Sutherland.

J. Hanson.

Provisions were furnished the party, and they started out on the 4th of October, 1898, and met on the creek (subsequently given the name of McKinley) certain members of the appellant company. Gold was discovered, and Cahoon wrote notices of location for Chisholm and Hall upon a snag or stump in the creek, making their claims contiguous, and afterward reported that he had done so, saying that he had staked Chisholm first and Hall next. Chisholm and Hall went to the claims about the 20th of October, and cut trails to them, and did other work upon them; and at that time copied the notices of location and had them recorded. The notices, with their indorsements, were introduced in evidence.

The testimony was given by several witnesses and in great detail, and it was opposed at about all points by testimony of several witnesses, including Cahoon; and as to who first discovered gold there was a decided conflict whether Sutherland did, who is one of the appellee company, or whether Hackley did, under a location by whom the appellant company claims. Also a conflict as to whether Hackley protested when Cahoon wrote the notices of location for Chisholm and Hall, and whether Cahoon promised to take them down and authorized Hackley to do so, and, upon his declining, authorized Lewis, one of the appellant company, to taken them down and relocate Chisholm and Hall further up the creek, and whether Lewis did so.

1. It will be observed that the main controversy of fact between the parties was as to who made the first discovery of gold,-Hackley or Sutherland. On this testimony appellants base three contentions, to which, they claim, the instructions asked by them at the trial court were addressed:

(1) That the discovery of mineral is a precedent condition to the making of a valid location, and that Hackley was the first to discover gold.

(2) That the locations relied on by appellees were invalid because they were not 'distinctly marked on the ground, or otherwise designated as required by law.'

(3) That the citizenship of Chisholm and Hall was put at issue by the pleadings, and no evidence was offered to establish it, but, on the contrary, the power of attorney under which Cahoon acted represents them to be citizens of British Columbia.

Without now questioning the soundness of either of these contentions, it is enough to say that the assignments of error based upon the refusal of instructions cannot be entertained. This is undoubtedly a suit in equity, and if it may be regarded as entertained under the general powers conferred by the act of May 17, 1884 (23 Stat. at L. 24, chap. 53), error cannot be predicated upon the giving or the refusing of instructions. The verdict was but advisory to the court, to be adopted or disregarded at the court's discretion. This we regarded as indisputable, but in order that counsel might be heard upon the effect of the Oregon Code, if regarded as applicable to Alaska, we requested briefs of counsel 'as to what errors, in respect of giving or refusing instructions or other rulings on trial by a jury in a cause of this character, are open for consideration on appeal from the district court of Alaska.'

In response to that request, counsel for appellant urge that by § 7 of the act of May 17, 1884, supra, the final judgments of a district court of Alaska are reviewable by this court 'as in other cases,' and that the terms, 'other cases,' 'necessarily refer to the procedure for review provided by §§ 691 and 692, Revised Statutes, governing district and circuit courts having like jurisdiction.' But the procedure there prescribed is for the purpose of reviewing error, and error, as we have already said, cannot be based on instructions given or refused in an equity case. Nor is the rule different in the state of Oregon. De Lashmutt v. Everson, 7 Or. 212; Swegle v. Wells, 7 Or. 222.

2. There was no finding of facts by the court, and, assuming that we may look into the evidence, we find it conflicting as to who first discovered gold,-Hackley or Sutherland. The court below evidently determined that Sutherland did, and, having no test of the credibility of the witnesses, we cannot pronounce that determination unsound. Sutherland seems to have been acting with and co-operating with Cahoon. At any rate, Sutherland is not contesting the locations made by Cahoon for Chisholm and Hall, but, on the contrary, asserts their validity and claims title under them. The locations, therefore, are valid so far as they depend upon the discovery of gold.

The second contention is that they are invalid because they were not 'distinctly marked on the ground.' The appellants base this contention on Cahoon's testimony. His testimony is that he wrote the notices of locations upon a stump or snag in the creek, and they were as follows: 'I, the undersigned, claim 1,500 feet running down this creek and 300 feet on each side.'

But the notices produced by other witnesses, and which were testified to be copies, as near as could be made out, of those on the stump, were respectively as follows:

Notice is hereby given that I, the undersigned, have, this      6th day of October, 1898, located a placer mining claim 1,500      feet running with the creek and 300 feet on each side from      center of creek known as McKinley creek, in Porcupine mining      district, running into Procupine river. This claim is the      east extension of W. A. Chisholm claim on about 1,800 feet      from the first falls above the Porcupine river, in the      district of Alaska.

Peter Hall, Locator.

Witnesses: J. Hanson.

D. Sutherland.

Notice is hereby given that I, the undersigned, have, this      6th day of Oct., 1898, located a placer mining claim 1,500      feet along creek bottom and 300 feet from center of creek      each way on creek known as McKinley, in Porcupine mining      district, described as follows: West extension of Peter      Hall's claim and about 300 feet above first falls on said      creek, in the district of Alaska.

Wm. A. Chisholm, Locator.

Witnesses: D. Sutherland.

James Hanson.

These notices constituted a sufficient location; the creek was identified, and between it and the stump there was a definite relation which, combined with the measurements, enabled the boundaries of the claim to be readily traced. Haws v. Victoria Copper Mic. Co. 160 U.S. 303, 40 L. ed. 436, 16 Sup. Ct. Rep. 282.

3. Conceding, appellants say, a proper discovery and aproper description of the location, nevertheless, as the citizenship of the locators was put in issue, it was necessary to be proved to justify a judgment for the appellees, because, under § 2319, Rev. Stat., the public lands of the United States are only open to exploration, occupation, and purchase by citizens of the United States and those who have declared their intention to become such.

In Manuel v. Wulff, 152 U.S. 505, 38 L. ed. 532, 14 Sup. Ct. Rep. 651, this court sustained the validity of a conveyance of a mining location to an alien, reversing a decision of the supreme court of Montana to the contrary. The decision was based upon the difference between a title by purchase and title by descent, and the doctrine expressed that an alien can take title by purchase, and can only be devested of it by office found. The case of Doe ex dem. Goveneur v. Robertson, 11 Wheat. 332, 6 L. ed. 488, was cited and approved, and the remarks of Mr. Justice Johnson in that case become apposite:

'That an alien can taken by deed, and can hold until office found, must now be regarded as a positive rule of law, so well established that the reason of the rule is little more than a subject for the antiquary. It no doubt owes its present authority, if not its origin, to a regard to the peace of society and a desire to protect the individual from arbitrary aggression. Hence it is usually said that it has regard to the solemnity of the livery of seisin, which ought not to be devested without some corresponding solemnity. But there is one reason assigned by a very judicious compiler, which from its good sense and applicability to the nature of our government makes it proper to introduce it here. I copy it from Bacon, not having had leisure to examine the authoritv which he cites for it: 'Every person,' says he, 'is supposed a natural-born subject that is resident in the Kingdom and that owes a local allegiance to the King, till the contrary be found by office.' This reason, it will be perceived, applies with double force to the resident who has acquired of the sovereign himself, whether by purchase or by favor, a grant of freehold.'

That grantees of the public land take by purchase this court, in Manuel v. Wulff, left no doubt. It was said that when a location is perfected it has the effect of a grant by the United States of the right of present and exclusive possession. Forbes v. Gracey, 94 U.S. 762, 24 L. ed. 313; Belk v. Meagher, 104 U.S. 279, 26 L. ed. 735; Gwillim v. Donnellan, 115 U.S. 45, 29 L. ed. 348, 5 Sup. Ct. Rep. 1110; Noyes v.  Mantle, 127 U.S. 348, 32 L. ed. 168, 8 Sup. Ct. Rep. 1132.

The appellants, however, deny the application of Manuel v. Wulff, and contend that this suit having been brought under § 500 of the Oregon Code, in order to maintain the suit, the appellees must show a right to the exclusive possession of the ground in dispute. This is in effect to say that, while the validity of the location may not be disputed by appellants, that the right to the possession, which is but an incident of the location, may be. We do not concur in this view. The meaning of Manuel v. Wulff is that the location by an alien and all of the rights following from such location are voidable, not void, and are free from attack by anyone except the government.

It is not necessary to notice other points made by appellants; and, discovering no error in the record, judgment is affirmed. 

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