The Nome nugget., 1901-11-30
A Decision in a Famous Case 6y Judge
 @ WGkersl,am
< Placer location Cannot Be Made While the Original Locator Is ln Possessioa of and Working the Claim The Boundaries of q. Claim May, Be Chaaaed Before shtervenags Rights Are Set Up.

t'ullowrU is the full text oss an pifiion handed down recently by .rndge, Yickersham. of the district court, in the case of Louis Steen vs. the Wild Goose Mining ard Trading Company. Salient points of the deci- sion. which was in favor of the deiend- ant, were that locations cannot iJe ,-;Sa ie when d claim is in ftlre actual possession of the original stalker and while it is being actually worked, and, secondly, that boundaries may be changed bstme intervening rights occur.
 introduction.
 This is an .ction by the plaintiff to Ciuiet his title to bench claim No. l5 on 6phir creek, Eldorado mining, district, Alaska. He claimed the property. through a location made by him on the 2Sth. day of Januapv, 1901, Aftor aL leging thadiseoyery of gold. the post rig, filingand recording.of the certifi- cate of location. describing his claim, he alleges that the. Gsfendant claims, se4ne interest in the property and Is Tn possession thereof, extracting gold therefrom, and prays that their respcc-' five claims may be ad]udlcated ana ms liUe thereto Quieted.
 The defendant, answering, denies all the equities set p.by the plaintiff. de- nies that the plaintiff made any discov- ary of gold on the premises, and for it's first alleges title inAitself through. ssrtf,f~aocation made by one A. Carlson oltt he 2lst day of May, 1898. 1t is al- lpCed that Carlson made aadiscoyefy of gold; placed monuments to mark the boundaries. and filed and recorded his notice of location within the time pre- scribed by law, and that ever since that time either Carlson or some of his Seantees have been in"possessiOn of the 4laiu. working upon, aud extracting, gold therefrom; that on or about the 5th day of Auguss 1900 the defendant caused the claim to be. sdrveyed ac- eording to the original stakes and . caused substantial stone monuments to be located at the four corners thereof: thAk at the time of making his claim in January, 1901, the plaintiff well knew that the defendant was in possession working as a grantee under the Carl son location, and had buildings and other substantial Improvements there 2n,. s4,dl generally alleges want of soAity against the, plaintiff.
 For a. seeend answer and defense tlle defendant alleges that on the 10th day 2f-September, lS99,> one Henry Shu- mann. located what is known as the Ophir flat placer mining claim, whlch overlapped the Carlson claim, and in- cluded nearly all that portion of the Carlson claim now in- controversy be- tween the plaintiff and the defendant. That by reason of the conflict between She Carlson claim and the Ophir flat 4 claim, the. defendant, about August 7th, 1900, purchased the Ophr flat claim from the grantees of Shumann, 9nf has ever since remained lR pos session thereof and working the ground. tt appears from the answer that the defendantclaims. title to the ground in controversy through both the Shnmann snd Carlson locations.
 Plaintiffs Repiy.,
 Tie plaintiff in his reply admits the Carlson location but alleges that the surHey, made in, August. l901 by the defendant embraced a tract not in- eluded within the original Carlson location certificate; that it is upon the tract not included within the Carlson certificate; that he has filed his bench claim No. 15; he~admits the Shumann location on the 18th day of September, 1899, but alleges that for want Of a definite description of courses it was voidfi and insufficient to reserve the ground from subsequent location.
 Heard Upon It's rlerits.
 : The. case has been fully heard upon the merits and the whole matter is now before the court for final adjudication. EroRrthe evidence, it appears that on Naval, 1898, assisted by Englehurst, Helfberg anu others located claimsNes. M 16, F and IS on Ophir creek. The evidences shows -concluSiyely that the parties located the Carlson claim in nelation to No. IA, previously located by one Brevig. They began at Brevig's lower initial stake and measured off the. supposed distance of the Brevig clain4 and thsfe established the CarL son initial stake on the right bank of Ophircreek. They then measured as 2ear as they-ceNld in a straight coupse up the stream 1900 feet, when, finding that the stake could not be located at Z that exact point on account of the &C., ,cumulated ice. they set an upper end stake some distance further to the north, where it could be permanently fixed, and where it yet remains. There is some testimony. by. knglehuTst that they found the upper initial stake of the Brevig location at the>pSint where the initial stake of No. I5 was placed by Carlsons
 In May, 1898, at Unalaklik, Carlson employed Macdonald to set the corner stakes on claimNo. l5. Leonhurtz'was i employed to perform that labor, and in 7 AugVss, 1898, % he testifies. he set the corner stakes at both ends of the. Carl son claim, beginning at the lower ini- tial stake. There is other evidence that other parties were employed soset the corner stakes of the Carlson claim also; and there seems to have been more than. one attempt to set those original location no.ices The .Golovin Ray Mining company came into posses sjon of the Carlson claim under lease,