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by law to be indexed, and for which he may receive the following fees and none other: For filing, 10 cents; for recording, $1; for indexing, 15 cents for each name.
SEC. 167. No lien provided for in this act shall bind any property for a longer period than 90 days after the claim has been filed, unless an action be commenced within that time to enforce the same.
SEC. 168. The action for the foreclosure of the lien provided for in this act shall be begun either in the district court or in the justice's court in the precinct where the lien was filed and the justices of the peace in Alaska are hereby given full jurisdiction in the foreclosure of such liens under the provisions of this act, and shall also have such other jurisdiction and power as is now conferred on them by law in aid of the enforcement of this act, and the provisions of section 1555 of chapter 71 of the Code of Civil Procedure now in force in Alaska shall be applicable to the jurisdiction intended to be conferred by this act. SEC. 169. No mistake, informality, or mere matter of form or lack of statement, either in the lien notice or pleadings, shall be ground for dismissal or unnecessary delay in the action to foreclose the lien, but the lien notice and pleadings may be amended at any time before judgment, and section 924 of chapter 11 of the Code of Civil Procedure now in force in Alaska shall apply to such amendments: Provided, That if it be shown that a material statement or averment has been omitted or misstated, it shall be ground for a reasonable delay or continuance to give the defendant a reasonable opportunity to meet it upon amendment.
SEC. 170. The claimant may file the original or a certified copy of the notice of lien in the district or justice's court as the statement of his case, and thereupon the court or justice shall issue the usual summons directed to the defendant or defendants, which summons, together with a copy of the lien notice, shall, by any officer authorized to serve process, be served upon the defendant or defendants, as provided in sections 1782 and 1783 of chapter 92 of the Code of Civil Procedure now in force in Alaska. The summons shall require the defendant or defendants to appear before such court or justice at a time and a place to be named therein, not less than 6 nor more than 20 days from the date thereof, to answer the demand of the claimant in the said lien notice, or judgment for want of an answer will be taken against them. Service by publication may be had pursuant to sections 879 and 880 of chapter 4 of said Code of Civil Procedure. The officer serving the summons shall also immediately post a copy of said lien notice in a conspicuous place on the dump or mass of mineral-bearing sands, gravels, earth, or rock, and gold and gold dust, and other minerals therein upon which the lien is filed, and from the moment of posting the lien notice the dump or mass of mineral-bearing sands, gravels, earth, and rock, and gold and gold dust, and other minerals therein shall be in the custody and under the control of the officer. All persons who claim any interest therein in opposition to the lien claimant may come in and answer and set up and defend their said claims, but no claim or claims of any owner, lessee, or other adverse defendant shall bar the lien claimant from recovering the sum due him for actual labor in producing the said dump or mass of mineral-bearing sands, gravels, earth, or rock, or gold and gold dust, or other minerals.
SEC. 171. Any number of persons claiming liens under this act may join in the same action, and when separate actions are com
menced the court may consolidate them. The court shall also allow, as a part of the costs, the moneys paid for filing, recording, and indexing the notice of lien, the sum of $5 for drawing the same, and a reasonable attorney's fee for each person claiming a lien, not to exceed 10 per centum of the amount of the lien established on judgment. Any contract or agreement or any waiver of any kind made or signed by any miner or laborer whereby it is sought to waive or abandon his right to file a lien under this act, or any agreement for an extended time of payment whereby the same end is sought, shall to that extent be null and void as against public policy.
SEC. 172. In such action judgment must be rendered in favor of each person having a laborer's lien for the amount due him, and the court shall order the dump or mass of mineral-bearing sands, gravels, earth, or rock, and the gold and gold dust, and other minerals therein subject to the lien to be sold by the marshal in the same manner that personal property is sold on execution; or the court may, upon a showing that it is necessary to do so to preserve the property from loss or waste, by order require the marshal to wash up or extract the gold and gold dust or other mineral from the said mineral-bearing sands, gravels, earth, or rock; or the court may, by order, allow the defendant or defendants or any party interested to wash up and extract the said mineral, in the presence of the marshal or deputy marshal or special officer, who shall take the gold or gold dust or other minerals as it is washed up and extracted and return the same into court, and it shall be immediately paid out as follows: First, the cost of cleaning up or extracting the gold or gold dust or other minerals shall be paid; second, the court costs shall be paid; and, third, the judgment or judgments so rendered in favor of the lien claimants shall be paid; and if there is not sufficient gold or gold dust, or other minerals, or sufficient moneys obtained from the sale of the property to pay all claims in full, the court shall apportion the proceeds to the payment of such judgments pro rata: Provided, That no part of any such proceeds shall be paid upon any claim or judgment to any person who did not actually perform labor in producing the dump or the proceeds thereof until all such preferred claims are paid in full.
SEC. 173. An appeal may be taken from a final judgment of a justice of the peace in actions instituted under this act to the district court, in the manner provided in chapter 97 of the Code of Civil Procedure now in force in Alaska, and upon such appeal being perfected the dump or mass of mineral-bearing sands, gravels, earth and rock, gold and gold dust, or other minerals shall be washed up by the marshal or any party mentioned in section 172 of this act as the district court may direct, and all the gold or gold dust or other mineral so washed up shall be paid into the registry of the district court, there to await the final judgment on appeal: Provided, That the gold or gold dust of other mineral in excess of the amount of the judgment, including an additional amount equal to the probable accruing costs on appeal and two years' interest at the legal rate, shall, after the expiration of 90 days from the time it was paid into the registry of the district court, be released to the owners upon a showing that no liens have been filed against it. The defendant or defendants, or any one or more of them, may deposit cash in lieu of the gold or gold dust on the dump, which shall remain in the custody of the law until the final judgment, and shall then be applied in payment of the judgment or judgments rendered on each lien claims, and costs, and interest.
SEC. 174. Any person or persons who shall, after the copy of the notice of lien is posted upon any dump or mass of mineral-bearing sands, gravels, earth or rock, gold and gold dust, or other mineral, as provided in this act, and with knowledge of such notice of lien, buy, purchase, wash up, remove, destroy, or carry away all or any part or portion of the same, or the gold or gold dust therein, or who shall render it difficult, uncertain, or impossible to identify the gold or gold dust or other mineral obtained therefrom, shall be liable to the fien holder for the full amount of his judgment and costs; and any person who shall take and carry away all or any part or portion of said dump of mineral-bearing sands, gravels, earth or rock, or the gold or gold dust or other minerals therefrom, after the same shall come into the custody of the officer, shall be guilty of a crime and shall be punished as for the larceny of a like amount; and any district attorney in Alaska is specially required to immediately cause a warrant to be issued for the arrest of any such person or persons and to prosecute them according to law. (Act of June 25, 1910, 36 Stat. 851.)
Sections 164 to 174, inclusive, are 36 Stat. 848, June 25, 1910.
2. CORPORATIONS-PIPE LINES-APPROPRIATION OF LAND.
3. LIEN ON MINE.
a. RIGHT OF LABORER.
b. RECOVERY-ATTORNEY'S FEES AND EXPENSES.
C. ENFORCING LIEN AGAINST MINE-PLEADING.
1. MINERAL LANDS-JUDICIAL NOTICE.
See secs. 691 to 704, pp. 903-907.
The proof shows and the court takes judicial notice that the Seward Peninsula in Alaska is valuable chiefly for its gold and other mineral deposits, much of it being in benches remote from streams, and that water is essential to the washing out and procuring of the gold.
Van Dyke v. Midnight Sun Min., etc., Co., 177 Fed. 85, p. 88.
2. CORPORATIONS-PIPE LINES- -APPROPRIATION OF LAND.
See 34 Stat. 584, p. 1070.
A corporation authorized by its charter to appropriate water and water rights, to build canals, ditches, flumes, and aqueducts, and to lay pipes for supplying mines with water for the general use of the public in the district of Alaska is, upon complying with the requirements of the statute authorizing it to transact business in the District of Alaska, authorized to exercise the right of eminent domain in Alaska and to acquire land for a public pipe line to supply water for mining.
Miocene Ditch Co. v. Lyng, 138 Fed. 544, p. 548.
Clark v. Nash, 198 U. S. 361.
Nash v. Clark, 27 Utah 158, p. 159.
A corporation organized under the laws of the United States or the laws of any State or Territory on compliance with the requirements of the Civil Code of Alaska is entitled to exercise the right of eminent domain in Alaska and thereby acquire land for a public pipe line to supply water for mining.
Miocene Ditch Co. v. Lyng, 138 Fed. 544, p. 548.
3. LIEN ON MINE.
a. RIGHT OF LABORER.
Under sections 262, 263, and 265, Alaskan Code, a laborer is entitled to a lien for his work in a mine, though the mine is in the possession of and is worked by a lessee, where the lease was not recorded and the work was done for such lessee with the knowledge and consent of the owner, and the owner gave no notice disclaiming his responsibility, as the three sections, when construed together, mean that the person in charge of the work is prima facie deemed to be the agent of the owner, and the property shall be charged with the lien.
Cascaden v. Wimbish, 161 Fed. 241, p. 243.
Where several persons are employed to perform work on a mining claim and in a mine at a stated sum per day and board they are all entitled to a laborer's lien under this statute, though one of them devoted a portion of his time to cooking for himself and the others and the remainder of his time to work on the shafts and tunnels.
Cascaden v. Wimbish, 161 Fed. 241, p. 245.
See McCormick v. Los Angeles City Water Co., 40 Cal. 185.
Laborers employed in a mine are entitled to a lien on the mining property for the time and labor devoted to cleaning up and washing the gold taken out of the mine. Cascaden v. Wimbish, 161 Fed. 241, p. 246.
b. RECOVERY-ATTORNEY'S FEES AND EXPENSES.
The provisions of section 270 are not unconstitutional or invalid because they permit as a part of the costs, the recovery of all sums paid for the filing and recording of a laborer's lien against a mining claim and the recovery of attorney's fees in an action to enforce the lien against the mining property.
Cascaden v. Wimbish, 161 Fed. 241, p. 244.
C. ENFORCING LIEN AGAINST MINE-PLEADING.
A complaint to enforce a laborer's lien on a mining claim must aver that the labor alleged to have been performed went to the improvement of the particular claim. Morris v. Marsh, 3 Alaska 146.
SEC. 175. The respective recorders shall, upon the payment of the fees for the same prescribed by the Attorney General, record separately, in large and well-bound separate books, in fair hand:
First. Deeds, grants, transfers, contracts to sell or convey real estate and mortgages of real estate, releases of mortgages, powers of attorney, leases which have been acknowledged or proved, mortgages upon personal property;
Ninth. Affidavits of annual work done on mining claims; Tenth. Notices of mining location and declaratory statements; Eleventh. Such other writings as are required or permitted by law to be recorded, including the liens of mechanics, laborers, and others: Provided, Notices of location of mining claims shall be filed for record within 90 days from the date of the discovery of the claim described in the notice, and all instruments shall be recorded in the recording district in which the property or subject matter affected by the instrument is situated, and where the property or subject matter is not situated in any established recording district the instrument
affecting the same shall be recorded in the office of the clerk of the division of the court having supervision over the recording division in which such property or subject matter is situated.
Provided, Miners in any organized mining district may make rules and regulations governing the recording of notices of location of mining claims, water rights, flumes and ditches, mill sites and affidavits of labor, not in conflict with this act or the general laws of the United States; and nothing in this act shall be construed so as to prevent the miners in any regularly organized mining district not within any recording district established by the court from electing their own mining recorder to act as such until a recorder therefor is appointed by the court: Provided further, All records heretofore regularly made by the United States commissioner at Dyea, Skagway, and the recorder at Douglas City, not in conflict with any records regularly made with the United States commissioner at Juneau, are hereby legalized. And all records heretofore made in good faith in any regularly organized mining district are hereby made public records, and the same shall be delivered to the recorder for the recording district including such mining district within six months from the passage of this act. (Act of June 6, 1900, 31 Stat. 321.)
Charlton Code, pp. 71, 72.
SEC. 176. Native-born citizens of the Dominion of Canada shall be accorded in said District of Alaska the same mining rights and privileges accorded to citizens of he United States in British Columbia and the Northwest Territory by the laws of the Dominion of Canada or the local laws, rules, and regulations; but no greater rights shall be thus accorded than citizens of the United States, or persons who have declared their intention to become such, may enjoy in said District of Alaska; and the Secretary of the Interior shall from time to time promulgate and enforce rules and regulations to carry this provision into effect. (Act of May 14, 1898, 30 Stat. 415.) Charlton Code, p. 61, sec. 13.
Section 177 includes section 16 of the act of March 3, 1891 (26 Stat. 1095, p. 1101), with town-site acts, p. The second part of section 177 is with 26 Stat. 1095, p. 1101, as section 17, p. 1223.
Sections 178, 180, and 181 are parts of 30 Stat. 11, p. 36, and is with 16 Stat. 149, Reservation, p. 1164. Section 179 is a part of 30 Stat. 11, p. 35, and is with 20 Stat. 88, Timber cutting, p. 1352.
Section 182 is a part of 29 Stat. 526, Oil lands, p. 1043.
Section 183 is a part of 32 Stat. 825, Oil lands, p. 1048.
Section 184 is a part of 36 Stat. 1015, Oil lands, p. 1048.
Section 185 is 31 Stat. 745, Salines, Salt springs, and Lead mines, p. 1213.
Section 186 is section 1 of 27 Stat. 348, Stone lands, p. 1328.
SEC. 187. Any person or association of persons qualified to make entry under the coal-land laws of the United States, who shall have opened or improved a coal mine or coal mines on any of the unsurveyed public lands of the United States in the District of Alaska, may locate the lands upon which such mine or mines are situated, in rectangular tracts containing 40, 80, or 160 acres, with north and south boundary lines run according to the true meridian, by marking the four corners thereof with permanent monuments, so that the boundaries thereof may be readily and easily traced. And all such locators shall, within one year from the passage of this act, or within one year from making such location, file for record in the recording district, and with the register and receiver of the land district