
    20 F.(2d) 5
    NORTHERN MINING & TRADING CO. v. ALASKA GOLD RECOVERY CO. et al.
    No. 5001.
    Circuit Court of Appeals, Ninth Circuit.
    May 31, 1927.
    Rehearing Denied Aug. 1, 1927.
    
      Thomas R. Lyons and Ira D. Orton, both of Seattle, Wash., for appellant and plaintiff in error.
    Geo. D. Schofield, of Nome, Alaska, for appellees and defendants in error.
    Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
   RUDKIN, Circuit Judge

(after stating the facts as above).

The Supreme Court has repeatedly held that orders such as this are not final and cannot be reviewed by writ of error. Luxton v. North River Bridge Co., 147 U.S. 337, 13 S.Ct. 356, 37 L.Ed. 194; Southern R. Co. v. Postal Telegraph Co., 179 U.S. 641, 21 S.Ct. 249, 45 L.Ed. 355. The reason for the rule is obvious: “The case is not to be sent up in fragments by successive writs of error.” Luxton v. North River Bridge Co., supra. This rule should no doubt obtain here, unless there is some statutory provision to the contrary. Section 636 of the Compiled Laws of Alaska, relating to eminent domain, provides: “The plaintiff or defendant or any party interested in the proceedings can appeal to the United States Circuit Court of Appeals for the Ninth Circuit from any finding or judgment made or rendered under this chapter, as in other cases.”

In the opinion of the writer the allowance of a writ of error to review the final judgment would fully satisfy the requirements of this section, thus making it harmonize with other legislation of Congress relating to the appellate jurisdiction of the federal courts. But, in Van Dyke v. Midnight Sun Mining & Ditch Co. (C.C.A.) 177 F. 85, this court held that the provision in question was taken from the Code of Civil Procedure of Montana, and that the Supreme Court of that state had construed it as permitting or allowing the review of an interlocutory order such as this. Whatever doubt we might entertain as to the proper construction of the statute if the question was an open one, we do not now feel that we would be justified in overruling that decision. The question is one of no general importance, aside from the fact that it goes to the jurisdiction of'the court, because it would seem to matter but little to the parties whether the order is reviewed now or by writ of error'to the final judgment. And if the local statute conferred the right of review, as was held in the Van Dyke Case, it has not been superseded or repealed by subsequent general legislation. United States v. Winslow, 227 U.S. 202, 33 S.Ct. 253, 57 L.Ed. 481; Abbate v. United States (C.C.A.) 270 F. 735. The motion to dismiss is therefore denied.

While the eminent domain statute of Alaska authorizes the taking of private property for roads, tunnels, ditches, flumes, pipes, and dumping places for working mines and outlets, natural or otherwise, for the flow, deposit, or conduct of tailings or refuse matter from mines, and sites for reservoirs necessary for collecting and storing water, the only provisions that could at all authorize the taking in this case are to be found in subdivision 10 of section 633 of the Compiled Laws of Alaska, and the Act of April 28, 1913 (Session Laws of Alaska, 1913, p. 118). The former provides that the right of eminent domain may be exercised in behalf of “tramway lines.” The latter provides that the use of water for mining, power, and municipal purposes, and the use of pole and tower lines for telephone and telegraph wires for aerial trams, and for the transmission of electric light and power by whomever utilized, are each and all declared to be beneficial to the public, and to be a public use, within the meaning of the eminent domain statute; that rights of way across private property, whenever the same shall be shown to be necessary for the operation of the mine or other project in connection with which it is intended to be used, may be condemned and taken therefor in the manner as laid down in the Alaska Code, and all proceedings to enforce the rights thus granted shall be in accordance therewith; that the right of way for which provision is thus made shall extend only to a right of way along, upon, and across the surface of the lands to be condemned and a strip thereof of sufficient width to permit of the construction thereon of such ditch, flume, pipe line, canal, or other means for conveying water as shall be adequate for the purposes intended, or for the setting of poles or the construction of towers upon which to string wires for telephone and telegraph lines and lines for the transmission of electric light or power for the operation of aerial trams and to permit of maintaining the same and keeping it in repair, and that all laws in conflict therewith are repealed.

It is quite manifest to us that these statutes do not authorize the taking of private property for any such use as is here contemplated. The statutes only authorize the taking of private property for rights of way for pole and transmission lines and rights incidental thereto, or, in other words, “for the setting of poles or the construction of towers upon which to string wires for telephone and telegraph lines, and lines for the transmission of electric light or power for the operation of aerial trams and to permit of maintaining the same and keeping it in repair.” In this case the main purpose of the taking as appears from the allegations of the amended complaint and more particularly from the findings of the court, is to obtain a site for plant and equipment to operate the mine which cannot be maintained on the Combers Right claim because of the periodical inflow of sea water. Whether the Legislature could authorize the taking of private property for any such purpose we need not inquire because it has not done so. Such statutes are universally construed strictly, and there is an additional reason for such construction where a different construction would render the act of doubtful validity. 20 C.J. 534; Warm Springs Irr. Dist. v. Pacific Live Stock Co. (C.C.A.) 270 F. 560. The order in question must therefore be reversed.

The decision of this question would seem to be decisive of the case and we deem it unnecessary to consider other questions discussed in the briefs of counsel, such as the right of an administrator to maintain an action of this kind. However, if the plaintiffs should elect to claim only such rights as they are entitled to claim under the law, after the case is remanded, the latter question is worthy of serious consideration.

Reversed and remanded to the court below for further proceedings in accordance herewith.

DIETRICH, Circuit Judge

(dissenting).

If I rightly understand the meaning of the language used in the majority opinion, I am unable to concur in the conclusion that “the main purpose of the taking * * * is to obtain a site for a plant and equipment to operate the mine.” As I read the record, the mining plant proper is, and is to remain, upon the plaintiffs’ claim. The site sought on defendant’s property is to be used only for one end of the aerial tram, with the incident power facilities requisite for its operation, referred to as a hoist. The measure of the use authorized is, of course, to be found in the order or interlocutory judgment. As therein defined, the uses, and the only uses, to which the plaintiffs are authorized to devote the site, are “to maintain and construct thereon an aerial tram and power line, with power, together with the necessary equipment to permit of operating, maintaining and keeping the same in repair, and using the same on the area * * * and that said user may include the erection of an aerial tram, with mast set within ten feet of the southerly boundary line of said tract; and not to exceed three cableway guy lines and three accompanying buckle guy lines leading from said mast to deadmen buried within said area as may be necessary to support said mast, and together with hoisting engine and cables leading therefrom to said mast.”

Apparently, therefore, but two things are to be placed upon the condemned area, a mast with its necessary stays and a hoisting engine. The mast, as I understand, .is simply the end post or member of the aerial tram, and being an integral part thereof, is clearly within the statute. Apparently the hoisting engine is a necessary appurtenance to. the operation of the tram, and, if so, I am inclined to think it also is within the purview of the statute. Plaintiff in error has not brought up the evidence upon which the court acted, and hence the precise function of the engine or hoist or its relation to the tram line is left in doubt.

I therefore think the order should be affirmed. But, if it is reversed, the lower court should be advised more specifically of the views of this court touching the scope of the statute.' And I also think we should rule upon the other questions submitted, by which defendant challenges the right' of plaintiffs to invoke the statute at all, or to have condemnation for any purpose. Otherwise, if plaintiffs proceed with the suit, I fear it will be found that but little, if any, progress has been made by its appeal, toward a final determination of the controversy.  