Bennett v. Harkrader

William Bennett, for himself and as the administrator of M. Gibbons, deceased, having made application in the United States land office at Sitka, Alaska, for a patent to what is known as the Aurora lode mining claim, the defendant in error, George Harkrader, filed an adverse claim in that office, and subsequently, under the authority of section 2326, Rev. St., commenced in the district court of the United States for the district of Alaska this action in support of such claim. After answer and reply, the case came on for trial, and resulted in a verdict and judgment for the plaintiff, to review which judgment the defendant sued out this writ of error. The plaintiff was the owner of certain mining claims known as the Bulger Hill and Nugget Gulch placer mining claims. The description of the former in the complaint is as follows:

'Commencing at post No. 10 of the U.S. survey, known and recorded as the Bulger Hill survey, whence United States mineral monument No. 2, duly established by United States survey and recorded as a permanent monument, bears north, seventy-six degrees (76°) east, eleven hundred and seveny -eight (1,178) feet; thence running north, thirty-four degrees and forty-five minutes (34° 45') east, one thousand (1,000) feet, to angle No. 1; thence running south, twenty-two degrees (22°) east, two hundred (200) feet, to angle No. 2; thence south, forty-one degrees and thirty minutes (41° 30') east, five hundred and ninety-four (594) feet, to angle No. 3; thence running south, thirty-seven degrees and thirty minutes (37° 30') west, nine hundred and ninety (990) feet, to angle No. 4; thence north, thirty-six degrees and fifteen minutes (36° 15') west, seven hundred and thirty-seven (737) feet, to place of beginning.'

On the trial the plaintiff offered in evidence the following location certificate:

'Notice. The undersigned claim five hill claims of two hundred feet each frontage and running back one thousand feet, thence running from a stake on the west bank of Ice gulch to a similar stake, one thousand feet distant, near the mouth of Quartz gulch.

'April 6th, 1881.

Tom Lineham.

'John Olds.

'Tom Kernan.

'Pete Bulger.

'Pat. McGlinchy.

'This company is known as the Bulger Hill Company.

R. Dixon, Recorder.

'April 8th, 1881.'

This was objected to as incompetent and void for uncertainty, but the objection was overruled, and the location certificate admitted in evidence.

The court, among other instructions, gave the following:

'You have two ultimate questions to consider, and those only, namely:

'(1) Is the plaintiff the owner of the Bulger Hill and the Nugget Gulch placer claims, and entitled to the possession of the soil included within them, and are they located on the grounds as he has described them? Or

'(2) Are the defendants the owners of the Aurora lode, and entitled to the possession of the soil embracing it, and is it situated on the ground called for in the description in their answer?'

To the giving of which instructions the defendants duly excepted. The verdict of the jury was in these words: 'We, the jury, find for plaintiff. R. S. Belknap, Foreman.' The sufficiency of this verdict was challenged, but sustained by the court.

John H. Mitchell, M. B. Gerry, and D. A. McKnight, for plaintiff in error.

Henry W. Blair, Oscar Foote S. F. Phillips, and F. D. McKenney, for defendant in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.