SMITH et al. v. CASCADEN et al., 148 F. 792

DE IIAVEN, District Judge. This 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, 1901, and described in the complaint as No. “13, below, on the second tier of benches on the right 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 made 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 ground, as required by the provisions of

section 2324 of the Revised Statutes [U. S. Comp. St. 1901, p. 11201 ; and, second, because the recorded notice of location was insufficient, in that it did not describe the claim located in such a manner that it could be identified. Whether this mining claim was properly marked upon the ground presents a pure question of fact, and in our opinion the finding of the District Court to the effect that the same was properly marked is sustained hv the evidence. 2. The remaining contention of appellants, that the recorded notice of the location under which the appellees claim is insufficient, presents a more difficult question. It is provided in

section 13 of the act of June 6, 1900, “making further provisions for a civil government for Alaska, and for other purposes” (chapter 78(5, 31 Stat. 327), that “notices of location of mining claims shall be filed for record within ninety days from the date of the discovery of the claim described in the notice,” and

section 2324 of the Revised Statutes provides that all records of mining claims “shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim.” The object of this statute, as stated by the Supreme Court in Hammer v. Garfield Mining Co., 130 U. S. 291, 9 Sup. Ct. 548, 32 L. Ed. 964, is “to secure a definite description- — one so plain that the claim can be readily ascertained.

A reference to some natural object or permanent monument is named for that purpose.” The recorded notice under which the appellees claim is in these words: “Notice is hereby given that the undersigned having complied with the United States mining laws and the local customs laws and regulations, has staked the following described placer mining ground in the Fairbanks districts I claim No. 13 A. Below Discovery on Cleary creek, 1,320 feet up and down stream and 330 feet each side of center stake, for placer mining purposes. D. H.

Cascaden.” It is conceded by appellants that, under the system of locating mines in Alaska, the one first discovered “is generally called and known as the 'Discovery Claim,’ and when the same is within a gulch or on a stream the claims are marked or numbered from 'Discovery Claim’ up or down the gulch or stream.” Cleary creek is a natural object; and there is no evidence tending to .show that the Discovery claim referred to in the above notice was not a well-known and clearly defined mining claim on Cleary creek, and, in the absence of evidence showing that it was not, it must be presumed that the same was a well-known claim, with definite boundaries, and therefore a natural object or permanent monument, within the meaning of

section 2324 of the Revised Statutes [U. S. Comp. St. 1901, p. 1426]. Hammer v. Garfield Mining Co., 130 U. S. 291, 9 Sup. Ct. 548, 32 L. Ed. 964. The question then, is whether, in view of the customary mode of. describing mining claims in the Fairbanks district in Alaska, a person with .the information which this recorded notice gives could find the location of this particular claim on the ground with reasonable certainty by going to the natural and permanent objects referred to in the notice. If he could, the notice is sufficient. North Noonday Mining Co. v. Orient Mining Co. (C. C.) 1 Fed. 522.

The answer to this question, it is thought, must depend upon the local meaning of the words “13 A. Below Discovery on Cleary creek”; and what that meaning is may be shown,by parol evidence. The land in controversy is not a claim bordering upon Cleary creek, but is in the first tier of bench claims —that is, there is one claim between it and the creek, and that claim is known as “13 Below Discovery” — but the reference to Cleary creek in the notice does not necessarily import that the claim directly abuts upon that creek; and if the words “13 A.

Below Discover}’’ on Cleary creek,” as commonly understood in the district where it is located, would identify the claim located as one in the first tier of bench claims in the mining district through which Cleary creek runs, and adjoining “13 Below Discovery” on that creek, then the notice is sufficient. The evidence in the record bearing upon this point is very brief.

The locator Cascaden, in answer to the question, “Why did you call it A?” answered, “To designate it from the creek claim, which is also marked ‘13 Below Discovery, Cleary creek.’ ” Another witness, Buro, testified as follows: “What is the custom, if you know of any, in staking a claim off, a creek claim that carries a number? How do you identify such a claim? “A. Just give them a different name, either side claim, or name them by letters. “Q. Have you seen it done in any other parts? “A.

Yes, sir; I have seen it done in Goldstream.” ■ The only evidence which can be said to conflict with this is that of the witness Long, a deputy recorder of the Fairbanks recording district. He testified that he was acquainted with the custom in that district in regard to staking bench or side claims, and he was then asked: “Q. I will ask you to state how they are designated in notices of location? “A. In regard to bench claims, they are known as bench claims in first tier, or side claims adjoining creek claims, if they are further than that, as second tier or third tier. “Q.

I will ask you if you know of any custom or usage whereby side claims -or bench claims are designated by the letters of the alphabet? “A. Well, only in fractions — for instance, if No. 1, appears to be greater than tbe law would permit of, it may be called as ‘Discovery A.’ or ‘No. 1 A.’ or ‘No. 1 A. above or below,’ just as it may occur.” Upon cross-examination, however, the witness said: “Q. Do you know Goldstream? “A. Yes, sir. * * « “Q. Is it not a fact that there are some side claims with the number and the letter ‘A’? “A. Yes, sir; there is.

Sometimes they designate them by the letter A, and sometimes as side claims and describe them as such. “Q. What is the custom in that respect? “A. Well, I presume there are more claims described by the lines than by the use of the letter A.” The testimony of this witness is certainly to the effect that side or bench claims are sometimes described by the use of the letter “A,” as was done in the appellees’ notice.

The fact that such claims arc more often described by lines and as side claims is not controlling, so long as in practice they are described in both ways, and this is known in the district where the claims are situated. Our conclusion is that the recorded notice is sufficient, and the decree appealed from is affirmed.