There is no prejudicial error in the ruling of the court below
on the admission of testimony.
Assignments of error cannot be based upon instructions given or
refused in an equity suit.
The locations are valid so far as they depend upon the discovery
The notices as set forth in the opinion of the court constituted
a sufficient location.
Grantees of public land take by purchase.
In Manuel v. Wolf, 152 U. S. 505
was decided that a location by an alien was voidable, not void, and
was free from attack by anyone except the government.
This is a bill in equity brought by the appellee company, who
was plaintiff below, to establish title to two placer mining
claims, against a like claim of appellant company to the same
The bill alleged that
"Peter Hall, William A. Chisholm, James Hansen, John Dalton, and
Dan. Sutherland, partners under the firm name and style of the
Alaska United Mining Company, bring this their bill of complaint
against C. G. Lewis, Bert Woodin, Edwin Hackley, Alex. McConaghy,
Carl A. West, W. S. Hawes, Chas. P. Leitch, and C. P. Cahoon,
partners under the firm name of the McKinley Creek Mining Company,
and show to the court that the said parties, both plaintiffs and
defendants, are citizens of the United States and residents of the
District of Alaska."
The bill also alleged ownership of the claims by reason of
location, exploration, and discovery of precious metals, and the
compliance with the local rules and regulations of the mining
district. Also possession of the claims and the erection of
Page 183 U. S. 564
improvements thereon, and forcible entry upon that possession by
defendants (appellants) with an attempt and avowed purpose to drive
plaintiffs (appellees) therefrom, and unless restrained, they would
proceed to the execution of said threats. An injunction was prayed
The defendants admitted their citizenship, but denied the
citizenship of plaintiffs on the ground that the defendants had not
sufficient knowledge to form a belief thereto, and traversed in
like manner or absolutely the other allegations of the bill, and
alleged title by reason of prior discovery by members of the
company. The answer also alleged prior possession by members of the
company, from which they were dispossessed by the plaintiff, and
claimed that, as to the controversies thus arising,
"defendants are, under the law and practice of this court,
entitled to a jury trial for the trial of the title to said claims
and each of them, and to that end and purpose, have commenced in
this honorable court a suit in ejectment for the trial and
determination of the title to said property in an action at law and
according to the usage and practice of this court, and until the
trial and determination of such trial at law by this honorable
court the defendants are entitled to a restraining order against
said plaintiff company and its individual members restraining them
and each of them from the commission of the wrongful acts herein
A temporary injunction was prayed against plaintiffs
There was a reply filed to the new matter of the answer and to
A jury was impaneled to try the case on motion of plaintiffs, no
objection being made by defendants, and, after hearing the evidence
and receiving instructions from the court, the jury rendered a
verdict for plaintiffs, as follows:
"We, the jury in the above-entitled and numbered cause, find for
the plaintiffs, Peter Hall, Wm. A. Chisholm, Dan. Sutherland, James
Hansen, and John Dalton, partners under the firm name and style of
the Alaska United Mining Company, the claims in controversy."
The defendants in due time moved for judgment notwithstanding
the verdict upon the ground that, on the evidence, the
Page 183 U. S. 565
defendants were entitled "to a judgment in their favor for the
possession of the mines and property in controversy." The motion
Subsequently, defendants moved for a new trial (1) upon the
testimony in the cause, the rulings therein and exceptions taken,
and upon the pleadings and proceedings in cause No. 967; (2) the
insufficiency of the evidence to justify the verdict; (3) error in
refusing to give certain instructions requested by defendants
The motion was denied, and the following judgment was
"This cause came on to be heard at this term upon the bill, the
answer and cross-bill of defendants, and the replication thereto of
plaintiffs, and the proofs in the case, and upon the request of
defendants, duly made by their counsel, Messrs. Winn & Weldon,
the issues arising upon said pleadings and proofs were submitted to
a jury of good and lawful men, duly selected, impaneled, and sworn,
to-wit, J. Montgomery Davis and eleven others, who, having heard
the said proofs adduced in the case, and having been instructed by
the court as to the law, and having heard the argument of counsel,
retired in charge of the bailiff to consider of their verdict, and,
after due deliberation, had returned into open court the following
"* * * *"
"We, the jury in the above-entitled and numbered cause, find for
the plaintiffs, Peter Hall, William A. Chisholm, Dan. Sutherland,
Jas. Hansen, and John Dalton, partners under the firm name and
style of the Alaska United Mining Company, the claims in
"(Signed) J. Montgomery Davis, Foreman
"Which said verdict was by the court received and ordered
recorded, and the findings therein contained upon the issues in
said cause were by the court approved and adopted."
"Now, therefore, upon consideration of the said bill, the answer
thereto, and the cross-complaint of said defendants, the
replication of plaintiffs, and the said proofs, and by reason of
the verdict of the jury thereon, approved and adopted by the
Page 183 U. S. 566
court, it is, upon consideration thereof, ordered, adjudged, and
decreed as follows, to-wit:"
"That the said defendants, C. G. Lewis, Bert Woodin, Edwin
Hackley, Alex. McConaghy, Carl A. West, W. S. Hawes, Charles P.
Leitch, and C.P. Cahoon, a mining copartnership under the name and
style of the McKinley Creek Mining Company, have not, nor have any
of them, any right, estate, title, or interest whatever in or to
those two certain mining claims, lands, and premises described in
the said bill of complaint and in the said answer and
cross-complaint of defendant and hereinafter more particularly
described; that the title of the plaintiff, The Alaska United
Mining Company, a corporation composed of Peter Hall, William A.
Chisholm, Dan. Sutherland, Jas. Hansen, and John Dalton, thereto,
is good and valid, and that the said defendants and each of them
be, and they and each of them are hereby, forever enjoined and
restrained from asserting any claim whatsoever in or to said mining
claims, lands, and premises adverse to said plaintiffs, and that
the said plaintiffs be, and they are hereby, quieted in their
possession, use, and enjoyment of the same."
A description of the claims followed.
Objection was made to the judgment, and the defendants claimed
that the only judgment which could be entered was one
"restraining the defendants from the acts complained of in the
bill of complaint pending the trial of cause No. 967, McKinley
Creek Mining Co. v. Alaska United Mining Co.,
which is a suit
in ejectment now pending in this Court and at issue, the record and
files of which are hereby referred to and made a part of this
From the judgment entered, the case is here on appeal.
MR. JUSTICE McKENNA delivered the opinion of the Court.
The assignments of error present for review the rulings of
Page 183 U. S. 567
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
Huse v. Washburn,
59 Wis. 414; Peabody v.
145 Ill. 519.
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
"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
"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--"
Page 183 U. S. 568
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
(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
Page 183 U. S. 569
it, but, on the contrary, the power of attorney under which
Cahoon acted represents them to be citizens of British
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. 24, 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
section 7 of the Act of May 17, 1884, supra,
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
sections 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.
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 cooperating with Cahoon. At any rate, Sutherland is not
contesting the locations made by Cahoon
Page 183 U. S. 570
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 Porcupine 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
"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"
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 Mining Company, 160 U. S. 303
Page 183 U. S. 571
3. Conceding, appellants say, a proper discovery and a proper
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 section 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
In Manuel v. Wulff, 152 U. S. 505
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
divested of it by office found. The case of Governeur
11 Wheat. 332, was cited and
approved, and the remarks of Mr. Justice Johnson in that case
"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 divested 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 authority 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
Page 183 U. S. 572
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
Belk v. Meagher, 104 U. S. 279
Gwillim v. Donnellan, 115 U. S. 45
Noyes v. Mantle, 127 U. S. 348
The appellants, however, deny the application of Manuel v.
and contend that, this suit having been brought under
section 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.