The Alaska prospector., 1903-12-03
! Warner. smith. kain. n.Gaie. .

There i> no evidence that the Chittyna Ex- oi agency or enpl3yment with smith. Warner, kain. ''ntc> ar Fitch. If either nf them, or any other member cf the Mcclellan prospecting party, except Mcclellan him ~elf. was su agent. servant oT employee Of the thitiyna ExPlora- tt"n Company at the time "i the iocati"n Oi these mine> ii wa> ty virtue oi some oral con- tract or agreement entered into between them or either oi them and \. r. Mcclellan. acting a> superintendent of inc compsny in Aia~ka There is ua ~ islenrc that any other member ni the Mcclellan prospecting party. than those last above named. had any agency or employ. meni for CT un behalf "f the ChiiiyuH ENplnra- lion cnmpsny for the year lsD.
 Thi> suit Was begun Hgnin>t the defendants 1T 1T iss iss '"'''S"' tAr'"F''''" e'@P""y "n Aug
 wfckersham. District Judge fafre- stating tie foregoing admitted facts in na raIive iormI Thi. suit .> brought upon the th-1ry that the de- icndani> who located the Bonanza group of copper minc> were al that time the agents oi the plaintiff. and that thrir locations became. were and now are the property of the plaintiff. some testimony l. offere-i by the Ilaintih to prove that defendants locating used fs,Ud sup pile and hog>es bcrungiug to the plaintiff in making the discoveries aul lugaiioIiS sbut this evidence is offered a> additional proof oi the direct contract oi agency and II !. moi sought thereby iu establish a mere grihsiake interest with inc ,leiendani> in the prUpcrty by impli- cation. In his argument before the Court inc leading coan>el for the plaintiff declared that the controversy Wa. "a simple question of con tract" and ih. pleading> and evidence come t" that point. The position of line plaintiff l. this: The lo,.ator> were our agents, ciapluyri supported and paid by u>. under a specific con tract tO locate miae> in this Beighborhnod for u>; they did locate ihe>e minc~ far us under that agreement; We paid them. and they have ho inicTe>t Tn the property, but holi II . mere nakei trustees for us. The defendants deny the contract of agency and allegc that the mine were lucatci fur The Met lrllau prospect. ing party by Warner ant smith under Ihr!r prior contrac; with the members thereof
 Mining clsiin> on public land> are property in tnv fullc>i sen>e of the word. which may be s1lt' trnn>iered. mortgagel and inherited, without infringing The title of tin. United state. Forte, ys trTacey. -i [. S-. 55.. 2i l.. Ei S.a. mining claim perfected under the law nprop,riy in the highest sense oi that term. which may Ice bought, sold and cuuVey ci and Wi! bass by descent. B-lS ". Meagher. lui [. '. -'i -6 l.. Fl. 1Si. The character nj The ti-l. acquired hy the dgrn'lani> in The Bnusnzs smith, l. even more particularly de-cFicrd in snuilcE ras. where me supreme Court say>: - lhry were thv di>r"vcrer> "i the ciaiin. They marked ii> bnundaric> by >tzkr>. thai they could bc readily tracei They posted ihe Tcqulred n"ilre, which Wa duly FcrGr,lci iH cnmFlisnee with the regulations of the district They had thus done all that Was nrce -sgry un!.r: i.c lsw for The acquisition uf an rNrlti.- "" right !" the pl,-e>-inn and enjoyment oi ih~ gr"1nd The clHiia Was thcncct ,fth their hr"lrriy They ncy'ied only {. larcn- of JHc tHiJe.l -'a'c> render their iisl. perieri snd that they could obtain at any time uI,.n p-1pi oi what hey Iad ne ia lfr-ating inc ciniil. and "f ~ub-t@lu-nt expenditure tn a specified amount in developing T.. CutiI iGe yr: .cnl :,- sl'"i The government held th- ii:le in trust ils = I!v-!-1 T. S. .i,, S- l.. E.i l6>
 it l. upon Iai> ci~-> of re-.l pr1prTty That P!'ini!h seek, [" i4~tel tru~t Hrisins out of all "rEl contract of agen,y.
 IL aH agent locate land for him,elf which he ought io l9eale Tor hl> principal ne l, in eiui,y
 ras Ia,I5 I.s IT. E EpIipsiI M.,,g in Vi ws; Nsi.asil; .s T ' ;s. i l. Ed s5.; rs.iS ys S.erra Butt. mining company, 3i Fed. S37: Hunt v> Patchin, B. Fed. sis: Book ys Justice mining compsny; ,.s Fed; io@; Moore v.: Moore, l2i Fed. 7S1: LackhaFt V. Rollins. 2i Pac ils In the case sf Book y-. Justice inc Court flaw ley. Iudgel sail:
 An oral rsr. euient to locate d mining .Iaim Ia! The beue;ii of another heed not be in writ ing II pasiy, in pursuance Oi such Sa under sialf!ng, at The "NIeu>e Oi another, locates tEe claim in his own Hsme he huld> legal Iitl- to ihr ground m trust for The benefit oi The party ilr whom the location was made; ani such party could, upon making the necessary proofs com Iel the l0,ziOr of tie mining claim to convey the title thereof "a him, although the eg7ceine:it so t"do Was n1t in writing. This familiar principle has been often applied in eases where a party ha- entered into an o-ai g'erinent To locate mining ground for the join benefit of himself snd others. and makes lsaiion in his own name. II has been held Una. such oral ag-ceinens are noi within tie statute of frauds. tiure V. MeBrayer, Is Cal 5--; Mnritz LsVelle. = Cal. h: ls Fac Rep G; ilirb'ur V. Keeling. Mon. k; Willard Huber. . NrY. Lno -
 Tine burden "i proof is upon one who >e.-ss to e>lA bll-h a iru-I il mining ci4iia asains bon The Leaord and the quiet possession of The ]" -ator. The court vii! Teiusv to move Untii th. iru-i l. clearly established in favor uf th, party alleging it- T" establish the exi. elce of a tr;I>i line onu> probanii lies on the. ;,trty wn's,Ige, Y, Provost V; "ratz. heat is., |. I'd 5ll; ralIpn vs- Dalton. II Ney. iIs
 The honanza group wa, los-atcd by the de ieitsrt> III j9.ly and August l-1i: this >ait wa, begun August Huh l'f- Th- ii .adan'> IT, msin-'t in quiet aIii T'-acrablc I..,>,>>irn nf the property for iw" year uu.i,r q clear, u,l- clnade,i; c"nrlet- and unchail-us-di record ritl; Plaintiff -rE> by thi> A lion to have that tile AAi Iss- -->i.,ii tax -n from ihr defendant, by d decree oi Inis C"slrI and iran>- frrT-d tu ii. -lch a ir.r.,. i> an exercise nf the highest civil jurisdiction of eoII.t il !, the extreme limit of its power over property and ought not 10 be entersi in do''biiHl .ra'g.'
 The bottom rul-in such eases xa, >o clearly stated Tn all early ease in the English chan cery conri> that II has since bsen quoted and fnliowef by the American courts.
 Tn the great case nf Cook y,. Fountain. ? swsnston 59l, il is well >aid that th-r l, one g'--i general and infalli5le rule that goes to butli 0i these kiad> al Irt>is lcNpr.-Ss and iIn- piled; i' Is such general rul- a- never de eciv--; general rule to which herr. i, no eN. eep'ion. and t.lat i> this; ihe Law never i'm Ili-s, the '"ar' neveE PT sumes a trasi. bat in ease ni absolute necessity. Tine reason for thi- rule is sacred; for If she c:.ancerr doon--c take liberty to eonsrrue trust by implication oi law nr to pre.un. a trust unr -,,essarily, 4 WAY is"p-nvd |" the Lord Chancellor to cons;ru- or presume any man in kuglaIid ou, q. his c>- e"nl- ca>us pro amieo" Dalton y-. Dal,on, H Ncg- ils-
 N"- .ill court of e.i liiy aijuast th. lss--tpr oi 4 mining claim. wh"is in p-sceablr I,0.s- sion under cl -ar recor.i title tu he irGsre. oi mat itle and possession for ,her. upon an alleged prior oral con Fact io Ie,asIe il for the ".heE, unless the ease i> esta tlished ay ful clear and sliisiaetory evidence Hopkins ys GriIashaw i65 r. S- 5;.. q l. Fl. 759 eiiiu, gsir approval Provost ys. t.FaiZ. l9 (. s- N lcai i,I L. Id. 3Il; >locuIn Marshall. ? Wash. C., (. 3s.. No. l1.riS Ed FaScs: smith y. Burl ham. >uinn. ,;lJ Ao. i:Oi9 Fed. Gases. In Sio-- cum vs Marshall. Associate Justice Washing ton of the Supreme Court of the rEiIe.i States wrote The opinion, and upon the point above stated he says:
 .it is sufficient to say, in answer io tiie frs. question, that there is ilo evidence of deelaT- htloh oi trust, elmer wTIft-n ar lfEsi, by which the nature o, That IT lS; at all be under std1d, and th. attempt to erest- and eHfsrre d specific trust, from the luose and e.uiyural ex- pTet etsipn- oi tae psStie>, nIRdc al different times and upon different occasions. would b. tne1asistent. not only wiIh th. sp.Fi: aI.i poIi- ey of the statute of frauds, but with the sr neral rules of evid-are- In 'his ease ii is fT.se the statute Of frauds i- mol pleaded or relied upon : but II T. SUI n ces-sry That the psFol decizFs- tions of r trus' saOuid he plain and m mbig.I- ous. before the Court esn charge the absolute nature of the aoayeysace and ietree an ex To cuiiDn of a trust not express a.i i3 th- s!e-d'
 h support oi the general rule the following additional sgtao-iiies gre cited: t-=ry .I.i Trus,s. %,a rd va !. see ss i2-: Willard Y.