
    137 F. 863
    TYEE CONSOLIDATED MINING CO. v. JENNINGS.
    No. 1,101.
    Circuit Court of Appeals, Ninth Circuit.
    May 1, 1906.
    
      R. F. Lewis, E. S. Pillsbury, Pillsbury, Madison & Sutro, and John G. Heid (Alfred Sutro, of counsel), for plaintiff in error.
    Winn & Gillette and John R. Winn (Charles B. Marks, of counsel), for defendant in error, Leander Anderson.
    Before .GILBERT, ROSS, and • MORROW, Circuit Judges.
   MORROW, Circuit Judge

(after stating the facts). The act of Congress making further provision for a civil government for Alaska, approved June 6, 1900 (chapter 786, 31 Stat. 321), provides, in section 4 of title 2, that no action shall be maintained for the recovery of real property, or for the recovery of the possession thereof, unless it shall appear that the plaintiff, his ancestor, predecessor, or grantor, was seised or possessed of the premises in question within 10 years before the commencement of the action. In Tyee Consolidated Mining Co. v. Langstedt (C.C.A.) 136 F. 124, this court held that in the territory of Alaska adverse possession of a mining claim, as against the locator thereof or his successors in interest, could not be initiated at any time before the issuance of the patent therefor by the United States. In the present case the patent was issued to the plaintiff’s grantor on December 26, 1890. At that time the laws of Oregon were, so far as applicable, in force in the territory of Alaska, by the provisions of section 7 of the act of Congress of May 17, 1884 (chapter 53, 23 Stat. 24, 25). The statute of limitations of Oregon relating to the commencement of actions to recover real property or the possession thereof is a period of 10 years. The act of Congress approved May 17, 1884 (chapter 53, 23 Stat. 24), had made the general laws of the state of Oregon the law in the District of Alaska, so far as the same might be applicable and not in conflict with the provisions of the act of Congress or the laws of the United States. The Alaska Code of Civil Procedure contained in the act of June 6, 1900, reenacted the Oregon Code of Civil Procedure, with some changes to conform to the new system of government established by the act. Sections 3 and 4 of title 2 of the Alaska Code are almost exact copies of sections 3 and 4 of the Oregon Code of Civil Procedure. In section 4 of both Codes there is this proviso: “In all cases where a cause of action has already accrued, and the period provided in this section within which an action may be brought has expired, or will expire within one year from the approval of this act, an action may be brought on such cause of action -yrithin one year from the date of the approval of the act.”

When this proviso was first introduced into the law of Alaska by the act of May 17, 1884, as part of section 4 of the Oregon Code, it served the purpose of preventing the injustice of suddenly introducing a statute of limitations into a new country. The proviso is a usual one in connection with statutes of limitations, and is intended to preserve whatever existing rights there may be at the time of their enactment for a short period, to enable parties to submit whatever claim of right they may have to the court for determination. This proviso served this purpose in the Oregon Code, and also at the time this Code was originally adopted for Alaska. But there was no necessity for it in the re-enacted Code of Civil Procedure contained in the act of June 6, 1900. It had served its purpose once, and there was no need for it a second time. The act of June 6, 1900, did nothing more than reenact and print in the statutes of the United States the Code of Civil Procedure of Alaska which had been in force in that territory since May 17, 1884, and was plainly intended to add nothing to what had previously existed under that statute. The period of limitation for the commencement of this action expired under this statute on December 26, 1900, and, as this action was not commenced until June 3, 1901, it was properly dismissed.

The judgment of the court below is affirmed.  