The Daily Alaska empire., 1928-03-01
Circuit Court Rules Surrey
 Cost Is Proper Charge for
 Annual Work of Assessment

In deciding a suit, appealed from the U. s. District Court a' Fairbanks, to quiet title to a pla' cer mining claim, the Circuit Court of Appeals for the Ninth District, ruled that a survey oi mining claim is clearly in the nature of permanent improve ment which tends to facilitate it's development and to enhance its value" and indicated that such I survey must be regarded as as sessment work.
 In 1915, the Alaska Legislature enacted a law that provided that the cost of survey might be credited as annual labor. This statute has been very generally regarded by lawyers as unconsti tutional and was so held by the Fairbanks court in the present case.
 History of Case
 The history of the case was set forth in the Appellate Courts de- cision as follows:
 From a decree dismissing tn ? complaint in a suit to quiet title to a placer mining claim the plaintiff appeals. The stipulate facts are as follows: Mike Byrne located the claim in question in 1905. He died December 5, 1920. For the annual labor of 1921 the administrator of his estate did work on the claim to the value of $40 and had survey of the claim made by Deputy United States Mineral Surveyor at cost of $60, which was the usual and ordinary charge for such work.
 For the annual labor between July 1. 1922, and July 1, 1923, the administrator caused $100 worth of work to be done on the claim. and between July 1, 1923. and April 1, 1924. he did another $10O worth of work upon the claim. On April II, 1924, the claim not being in the actual possession of any one, the appellant, tAlberf Wigand), relocated it, and at the commencement of the suit he wa in the actual possession thereof. It was his contention that the survey made for the year 1921 di'l not constitute annual labor with. in the meaning of the law.
 "The Legislature of Alaska Ses. sion Laws of 1915, Chapter 10. enacted that the cost of such a survey might be credited as an nual labor, but provided that the claimant must file in the record er's office in the district the field notes of the survey and voucher showing the cost thereof, proper ly attested by the surveyor, to be incorporated into the proof of an nual labor. The court below held the section unconstitutional, but was of the opinion that inasmuch as it was apparently the law dur ing the period in which the ad- ministrator followed it in good raith, he was entitled to have his work and the cost of the survey considered as legal assessment work for the period ending July 1, 1922. The court also found that the work on the claim by the ad- ministrator for the two succeed ing years was done to the actual knowledge of the appellant, or If not to his actual knowledge, that he could by reasonable efforf have informed himself of the fact. and held that miner should not be deprived of his property sole ly because he took the law of the legislature at it's face value, and that a court of equity should not aid one to relocate the claim with knowledge of the existing law and knowledge of what the owner had done and after stand ing by silent and inactive until the owner had done annual as- sessments for two succeeding years thereafter"
 Views of Court
 Judge Gilbert, Circuit Judge, af- ter stating the facts, said:
 "In the adjudicated cases there is dearth of precise definition of the nature of the work on pla- cer mining claim that will be ac- cepted as meeting the require ment that mot less than one hundred dollars worth of labor shall be performed, or improve ments made during each year. It is held that the statute should be given a liberal construction, McCulloch V. Murphy, 125 Fed. 147, and we find no case that holds that one hundred dollars worth of work done on place mining claim in good faith. in the belief that it will result in the development or improvement Of the claim, is to be held insuffi- cient for the reason that 1t is ill advised or does not in fact result in perceptible improvement or de- velopment On the contrary 1t is held that the character of the ..,o~1~ vorfrrunod hooovuoc oforio1 1