
    121 F. 709
    TYEE CONSOLIDATED MINING CO. v. LANGSTEDT.
    No. 875.
    Circuit Court of Appeals, Ninth Circuit.
    March 2, 1903.
    
      John G. Heid, R. F. Lewis, and Alfred Sutro, for plaintiff in error.
    Lorenzo S. B. Sawyer and Crews & Hellenthall, for de- • fendant in error.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.'
   GILBERT, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

A motion is made to dismiss the writ of error upon the ground that no assignment of errors was filed with the clerk of the court below at the time of filing the petition for the writ. The motion is made upon the condition of the record as it appears, showing the file marks of the clerk of the court at Juneau, Alaska. From these indorsements of the clerk it appears that the petition for the writ was filed on June 23, 1902; that the writ was issued on that day, and was filed on July 10, 1902; and that on the same day the assignment of errors was filed. The case of Frame v. Portland, etc.,' Co., 47 C.C.A. 664, 108 F. 750, is cited in support of the motion. In that case the Circuit Court of Appeals for the Eighth Circuit held it indispensable, under rule 11 (32 C.C.A. cxlvi), that the assignment of errors be filed before the issuance of the writ, to the end that the judge to whom application is made for the writ may be informed of the alleged errors upon which the petitioner relies, in order to decide whether the prayer of the petition shall be granted, and that the opposing counsel, as well as the appellate court, may be informed of the questions of law which are to be raised for consideration. On referring to the transcript in the present case, it will be seen that the assignment of errors bears date June 23, 1902, the date of the presentation of the petition, and that in the petition reference is made to it as “the assignment of errors filed herewith.” The fair inference from these facts is that the assignment of errors was in fact presented to the trial court, and was lodged with the clerk thereof, at the time when the petition for the writ was filed, and that, through some oversight of the clerk or misconception of his duty, the file mark was not placed thereon until July 10th. In the absence of a showing to the contrary, the presumption will be indulged that such was the case, and the motion to dismiss will therefore be denied.

This case presents on the merits the single question of law whether the cause of action was barred by the statute of limitations. The lode claim in controversy was located as a mining claim on January 29, 1884, by one Walter Pierce, who on May 13, 1884, conveyed the same to W- . W. Murry. The receiver’s receipt was issued to said Murry on May 20, 1890, and on December 26, 1890, he received a patent from the United States. His grantee commenced the present action on December 24, 1900. The defendant in error answered, denying every allegation of the complaint, and alleging that he and his grantors and predecessors in interest had been in the “actual, open, notorious, and continuous possession” of the tract of land described in the complaint more than 10 years prior to the date of the commencement of the action, and during that period, “and ever since, have claimed to be the owner of said tract of land, and that the defendant now claims adversely to the plaintiff.” A stipulation was filed whereby it was admitted that the mining claim was located and that patent issued as above stated, and the parties submitted to the court the decision of the question of law whether the facts pleaded in the answer constituted a bar to the action, and agreed that judgment should follow accordingly.

In the view we take of the record which comes before us, we are not called upon to decide the question whether an adverse possession could have been initiated against the plaintiff in error before the date when its patent issued from the United States. The statute of limitations applicable to this case is found in the Code of Civil Procedure of Alaska (chapter 2, § 4), which provides as follows: “Within ten years, actions for the recovery of real property, or for the recovery of the possession thereof; and no action shall be maintained for such recovery unless it shall appear that the plaintiff, his ancestors, predecessors, and grantors, was seised or possessed of the premises in question within ten years before the commencement of the action.”

A legal title gives a right of possession as well as the legal seisin, and possession coextensive with the right, until there is an ouster by adverse possession. Said the court, in United States v. Arredondo, 6 Pet. 691, 743, 8 L.Ed. 547: “The law deems every man to be in the legal seisin and possession of land to which he has a perfect and complete title. This seisin and possession is coextensive with his right, and continues till he is ousted thereof by an actual adverse possession.”

What is an “actual adverse possession” ? In Armstrong v. Morrill, 14 Wall. 120, 145, 20 L.Ed. 765, the court said: “It is well-settled law that the possession, in order that it may bar the recovery, must be continuous and uninterrupted, as well as open, notorious, actual, exclusive, and adverse. * * * The possession must be adverse, as seisin and possession are supposed to be coextensive with the right, and that the possession continues till the party is ousted thereof by an actual possession in another under a claim of right.”

In Sharon v. Tucker, 144 U.S. 533, 12 S.Ct. 720, 36 L. Ed. 532, the court thus defined the requisites of an ádverse possession: “It must be an open, visible, continuous, and ex-elusive possession, with a claim of ownership such as will notify parties seeking information upon the subject that the premises are not held in subordination to any title or claim of others, but adversely to all titles and all claimants.”

In Ward v. Cochran, 150 U.S. 597, 14 S.Ct. 230, 37 L. Ed. 1195, the court held invalid a judgment which had been rendered on a special verdict which found the defendant’s possession to be open, continuous, notorious, and adverse with the claim of ownership. The court ruled that, in order to make out the defense to the action of ejectment, the possession must, in addition to the features specified in the special verdict, have been shown to be actual and exclusive. •Said the court (at page 608, 150 U.S., and page 233, 14 S.Ct., 37 L.Ed. 1195) : “A possession not actual, but constructive ; not exclusive, but in participation with the owner or others falls very far short of that kind of adverse possession which deprives the true owner of his title.”

Again, in Lowndes v. Huntington, 153 U.S. 31, 14 S.Ct. 758, 38 L.Ed. 615, the court reiterated the rule that such possession, to avail against the legal title, “must be adverse and exclusive.”

Measured by these utterances of the Supreme Court, the possession of the defendant in error was not adverse, and did not amount to disseisin of the plaintiff in error or its grantors. It was actual, open, notorious, and continuous, with a claim of ownership, but it lacked two essential requisites: It was not shown to be either exclusive or hostile. The averment in the answer that the defendant “now” claims adversely, if it have any significance, serves only to strengthen the inference that prior to the commencement of the action his claim was not adverse. The possession not being adverse, the statute of limitations never began to run. It was error, therefore, to enter judgment upon the stipulation in favor of the defendant in error.

The judgment is reversed, and the cause remanded for further proceedings in accordance with the foregoing views.  