
    24 F.(2d) 179
    WIGAND v. BYRNE’S UNKNOWN HEIRS et al.
    No. 5043.
    Circuit Court of Appeals, Ninth Circuit.
    Feb. 13, 1928.
    
      Harry E. Pratt, of Fairbanks, Alaska, for appellant.
    Louis K. Pratt, of Fairbanks, Alaska, for appellees.
    John Rustgard, Atty. Gen., Territory of Alaska, amicus curiae.
    Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
   GILBERT, Circuit Judge

(after stating the facts as above).

In the adjudicated cases there is dearth of precise definition of the nature of the work on a placer mining claim that will be accepted as meeting the requirement that .“not less than one hundred dollars worth of labor shall be performed or improvements made during each year.” It is held that the statute should be given a liberal construction, McCulloch v. Murphy (C.C.) 125 F. 147, and we find no case that holds that $100 worth of work done on a placer mining claim in good faith, in the belief that it will result in the development or improvement of the claim, is to be held insufficient for the reason that it is ill-advised, or does not in fact result in perceptible improvement or development. On the contrary, it is held that the character of the work performed becomes material only when it is performed for the benefit of the claim but on land without its boundaries. In that event the labor must tend to the development or improvement of the mining claim for which it is designed. Wailes v. Davies (C.C.) 158 F. 667, 670, affirmed Wailes v. Davies (C.C.A.) 164 F. 397.

In Mt. Diablo M. & M. Co. v. Callison, 5 Sawy. 439, 456, Fed.Cas.No.9886, it was said: “We therefore conclude that when a miner does the necessary labor, anywhere within his boundaries upon the surface or below it, the condition of the mining claim as to labor has been complied with. We cannot hold that he shall make no mistakes; that he is bound to ascertain at the risk of forfeiture, whether he is working on a lode having its apex outside his surface lines.” In the Session Laws of Alaska above referred to it is provided that a survey of the claim by a United States mineral surveyor may be credited to annual assessment work, provided that the credit shall not exceed the required assessment for one year on the claim. We may concede that the Legislature of the territory had no authority to add to or take from the requirements of the statute of the United States in regard to the annual assessment work. But its enactment may be referred to as evidence of the opinion of miners in that territory that a survey of a mining claim might be regarded as assessment work, in compliance with the law of the United States.

We are not convinced that that view is erroneous. A survey of a mining claim is an improvement which obviously may tend to aid in the development of the claim. In Richen v. Davis, 76 Or. 311, 148 P. 1130, it was held that work done in clearing the brush from a mining claim to facilitate the work thereon, might be deemed assessment work. In Hough v. Hunt, 138 Cal. 142, 70 P. 1059, 94 Am.St.Rep. 17, the court recognized the right to charge the wages of a watchman to annual assessment work, if the work were but temporarily suspended, and was intended to be resumed in a reasonable time» and if structures which would be required when the work was resumed were likely to be lost, if not cared for. That decision involves a construction of the law more liberal than that which is claimed by the appellee in the case at bar, for a survey of a mining claim is clearly in the nature of a permanent improvement, which tends to facilitate its development and to enhance its value.

On behalf of the territory its Attorney General asks for a decree that the mining claim be declared escheated to the territory, for the reason that the original locator left no heirs. But the territory is not a party to the suit, and is in no position to assert that the locator left no heirs, from the fact that, on publication of summons to unknown heirs, none appeared and default was taken, and those facts are unimportant to the present litigation, as is also the contention that the heirs are necessary parties; for the court below made no adjudication of the title to the mining claim. All that was determined was that the appellant had no valid location and that his suit to quiet title should be dismissed.

The decree is affirmed.  