Northern Mining & Trading Co. v. Alaska Gold Recovery Co.

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 And if the local statute conferred the right of review, as was held in the Van Dyke Case, it has not been superseded or repealed by subsequent general legislation.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.