
    235 F. 880
    AMES v. SULLIVAN.
    No. 2682.
    Circuit Court of Appeals, Ninth Circuit.
    Sept. 5, 1916.
    
      George B. Grigsby, of Nome, Alaska, and Thomas R. Lyons and Ira D. Orton, both of Seattle, Wash., for plaintiff in error.
    T. M. Reed and O. D. Cochran, both of Nome, Alaska, and Thomas R. White, of San Francisco, Cal., for defendant in error.
    Before GILBERT, ROSS, and HUNT, Circuit Judges.
   GILBERT, Circuit Judge.

In an action of ejectment the plaintiff alleged that he was the owner of mining claim No. 32 above Allen’s Discovery on Kougarok river, Alaska, by virtue of a location made in January, 1902, and that in February, 1912, the defendant wrongfully ousted him. The defendant alleged that he was in the possession of a mining claim known as the Kshunti Fraction, which had been lo-' cated on July 25, 1903, and that, if the plaintiff’s mining claim overlaps the said Kshunti Fraction in whole or in part, the overlap is junior in time and inferior in right to the defendant’s title, and the defendant disclaimed any right to any portion of the premises described in the complaint except that which may be found to overlap the Kshunti Fraction. The jury found for the plaintiff, and judgment was entered in his favor for the possession of the claim described in the complaint. To review that judgment the defendant brings this writ of error.

It is contended that the trial court erred in admitting in evidence a letter written in 1912 by one Johnson to Windquist, the plaintiff’s predecessor in interest. The letter stated that the writer had been on claim 32 and had done some work, but that he had left because the defendant threatened him with violence, and he did not wish to be “pounded to death,”’ and that the defendant had said that he would “win that claim if he had to kill a number of persons.” It is said that the letter was hearsay and incompetent. One of the questions raised by the evidence was whether or not the plaintiff had done the necessary assessment work on claim 32 for the year 1912. Johnson testified that he went to do the assessment work on the claim in that year, and that the defendant claimed to be in possession and told him to get off the claim “if he wanted to keep out of trouble,” and that the defendant twice tried to hit him. The defendant did not deny that he put Johnson off the claim. On the contrary, he testified that he drove him off; but he denied that he said he would “have the claim if he had to kill everybody in Kougarok.” We do not think that the letter added any substantial evidence to the facts testified to by the defendant and by the plaintiff’s witness Johnson. The defendant did not deny that his attitude was hostile, nor that he attempted twice to strike Johnson, nor that he used the precise words which Johnson attributed to him in the letter. Such being the case, there was no prejudice to the defendant in admitting the letter in evidence.

It is assigned as error that the court below overruled the defendant’s motion, made at the close of the testimony, for leave to file an amended and supplemental answer setting up the forfeiture of claim No. 32 for failure of the owner to do assessment work thereon in 1911 and 1912; the failure for 1912 being an alleged fact that occurred after the commencement of the action. It is within the discretion of a trial court to permit an answer after the conclusion of the testimony to set up additional defenses to meet the evidence. Ebner Gold Mining Co. v. Alaska-Juneau Gold Mining Co., 210 F. 599, 127 C.C.A. 235. And the discretion of the trial court in ruling on such proposed amendments is subject to review in proper cases of its abuse. Cœur d’Alene Lumber Co. v. Thompson, 215 F. 8, 131 C.C.A. 316, L.R.A.1915A, 731. There was no proof, however, of the plaintiff’s failure to do the assessment work in 1911, and the failure to do that work for 1912 was shown to have been the result of the defendant’s own hostile opposition. He could not by forcibly preventing the performance of the assessment work initiate rights to defeat those of the rightful owner. Erhardt v. Boaro, 113 U.S. 527, 5 S.Ct. 560, 28 L.Ed. 1113. The defendant contends that a place to do the work might have been found on some portion of the plaintiff’s claim that was not within the overlap of the Kshunti Fraction. But there is no evidence that there was such a place where labor could have been done for the benefit of the improvement or development of the claim. Mills v. Fletcher, 100 Cal. 142, 34 P. 637. Under the evidence adduced, and the facts as they were shown at the close of the testimony, we are of the opinion that the trial court did not abuse discretion in denying the motion.-

The judgment is affirmed.  