in the creek, making their claims contig- appellant urge that by § 7 of the act of uous, and afterward reported that he had May 17, 1884, supra, the final judgments done so, saying that he had staked Chisholm of a district court of Alaska are reviewable first and Hall next. Chisholm and Hall by this court "as in other cases," and that went to the claims about the 20th of Octo- the terms, "other cases," "necessarily refer ber, and cut trails to them, and did other to the procedure for review provided by §8 work upon them; and at that time copied 691 and 692, Revised Statutes, governing the notices of location and had them re-district and circuit courts having like juriscorded. The notices, with their indorsements, were introduced in evidence.

The testimony was given by several witnesses and in great detail, and it was opposed at about all points by testimony of several witnesses, including Cahoon; and as to who first discovered gold there was a deoided conflict whether Sutherland did, who is one of the appellee company, or whether Hackley did, under a location by whom the appellant company claims. Also a conflict as to whether Hackley protested when Cahoon wrote the notices of location for Chisholm and Hall, and whether Cahoon promised to take them down and authorized Hackley to do so, and, upon his declining, authorized Lewis, one of the appellant company, to take them down and relocate Chisholm and Hall further up the creek, and whether Lewis did so.

1. It will be observed that the main controversy of fact between the parties was as to who made the first discovery of gold,Hackley or Sutherland. On this testimony appellants base three contentions, to which, they claim, the instructions asked by them at the trial court were addressed:

(1) That the discovery of mineral is a precedent condition to the making of a valid location, and that Hackley was the first to discover gold.

(2) That the locations relied on by appellees were invalid because they were not "distinctly marked on the ground, or otherwise designated as required by law."

(3) That the citizenship of Chisholm and Hall was put at issue by the pleadings, and no evidence was offered to establish it, but, on the contrary, the power of attorney under which Cahoon acted represents them to be citizens of British Columbia.

diction." But the procedure there prescribed is for the purpose of reviewing error, and error, as we have already said, cannot be based on instructions given or refused in an equity case. Nor is the rule different in the state of Oregon. De Lashmutt v. Everson, 7 Or. 212; Swegle v. Wells, 7 Or. 222.

2. There was no finding of facts by the court, and, assuming that we may look into the evidence, we find it conflicting as to who first discovered gold,-Hackley or Sutherland. The court below evidently determined that Sutherland did, and, having no test of the credibility of the witnesses, we cannot pronounce that determination unsound. Sutherland seems to have been acting with and co-operating with Cahoon. Ato any rate, Sutherland is not contesting the locations made by Cahoon*for Chisholm and⚫ Hall, but, on the contrary, asserts their validity and claims title under them. The locations, therefore, are valid so far as they depend upon the discovery of gold.

The second contention is that they are invalid because they were not "distinctly marked on the ground." The appellants base this contention on Cahoon's testimony. His testimony is that he wrote the notices of locations upon a stump or snag in the creek, and they were as follows: "I, the undersigned, claim 1,500 feet running down this creek and 300 feet on each side."

But the notices produced by other witnesses, and which were testified to be copies, as near as could be made out, of those on the stump, were respectively as follows:

Notice is hereby given that I, the undersigned, have, this 6th day of October, 1898, located a placer mining claim 1,500 feet running with the creek and 300 feet on each side from center of creek known as McKinley creek, in Porcupine mining district, running into Porcupine river. This claim is the east extension of W. A. Chisholm claim on about 1,800 feet from the first falls above the Porcupine river, in the district of Alaska. Peter Hall, Locator. Witnesses: J. Hanson. D. Sutherland.

Without now questioning the soundness of either of these contentions, it is enough to say that the assignments of error based upon the refusal of instructions cannot be entertained. This is undoubtedly a suit in equity, and if it may be regarded as entertained under the general powers conferred by the act of May 17, 1884 (23 Stat. at L. 24, chap. 53), error cannot be predicated upon the giving or the refusing of instructions. The verdict was but advisory to the court, to be adopted or disregarded at the court's Notice is hereby given that I, the underdiscretion. This we regarded as indisput-signed, have, this 6th day of Oct., 1898, loable, but in order that counsel might be cated a placer mining claim 1,500 feet along heard upon the effect of the Oregon Code, if creek bottom and 300 feet from center of regarded as applicable to Alaska, we re creek each way on creek known as McKinquested briefs of counsel "as to what er-ley, in Porcupine mining district, described rors, in respect of giving or refusing instructions or other rulings on trial by a jury in a cause of this character, are open for consideration on appeal from the district court of Alaska."

In response to that request, counsel for

as follows: West extension of Peter Hall's
claim and about 300 feet above first falls on
said creek, in the district of Alaska.
Wm. A. Chisholm, Locator.
D. Sutherland.
James Hanson.

Witnesses:

699.

*572

571

These notices constituted a sufficient loca- | Mantle, 127 U. S. 348, 32 L. ed. 168, 8 Sup. tion; the creek was identified, and between Ct. Rep. 1132. it and the stump there was a definite relation which, combined with the measurements, enabled the boundaries of the claim to be readily traced. Haws v. Victoria Copper Min. Co. 160 U. S. 303, 40 L. ed. 436, 16 Sup. Ct. Rep. 282.

3. Conceding, appellants say, a proper discovery and a proper description of the location, nevertheless, as the citizenship of the locators was put in issue, it was necessary to be proved to justify a judgment for the appellées, because, under § 2319, Rev. Stat., the public lands of the United States are only open to exploration, occupation, and purchase by citizens of the United States and those who have declared their intention to become such.

The appellants, however, deny the application of Manuel v. Wulff, and contend that this suit having been brought under § 500 of the Oregon Code, in order to maintain the suit, the appellees must show a right to the exclusive possession of the ground in dispute. This is in effect to say that, while the validity of the location may not be disputed by appellants, that the right to the possession, which is but an incident of the location, may be. We do not concur in this view. The meaning of Manuel v. Wulff is that the location by an alien and all of the rights following from such location are voidable, not void, and are free from attack by anyone except the government.

It is not necessary to notice other points made by appellants; and, discovering no error in the record, judgment is affirmed.

In Manuel v. Wulff, 152 U. S. 505, 38 L. ed. 532, 14 Sup. Ct. Rep. 651, this court sustained the validity of a conveyance of a mining location to an alien, reversing a decision of the supreme court of Montana to the contrary. The decision was based upon UNITED STATES REPAIR & GUARAN

the difference between a title by purchase and title by descent, and the doctrine expressed that an alien can take title by purchase, and can only be devested of it by office found. The case of Doe ex dem. Goveneur v. Robertson, 11 Wheat. 332, 6 L. ed. 488, was cited and approved, and the remarks of Mr. Justice Johnson in that case become apposite:

(183 U. S. 591)

TY COMPANY, Petitioner,

v.

ASSYRIAN ASPHALT COMPANY.

Patent-for method of repairing asphalt pavement-lack of novelty.

The Perkins patent, 501,537, for a method of repairing asphalt pavements, consisting of so heating the spot to be repaired and the adjacent surface that the asphalt is reduced to the soft, pliable state in which it was originally laid, then mixing in enough new material to fill up the spot to be repaired, and then subjecting it to the usual finishing operations, is void for lack of novelty by reason of the prior French patent to Crochet, the process in which differed chiefly in the fact that the old asphalt was removed from the spot to be repaired, while this was not done by the Perkins method.

[No. 61.]

"That an alien can take by deed, and can hold until office found, must now be regarded as a positive rule of law, so well established that the reason of the rule is little more than a subject for the antiquary. It no doubt owes its present authority, if not its origin, to a regard to the peace of society and a desire to protect the individual from arbitrary aggression. Hence it is usually said that it has regard to the solemnity of the livery of seisin, which ought not to be devested without some corresponding solemnity. But there is one reason assigned by a very judicious compiler, which from its Argued October 28, 29, 1901. Decided Jangood sense and applicability to the nature of our government makes it proper to introduce it here. I copy it from Bacon, not having had leisure to examine the authori-States Circuit Court of Appeals for the tv which he cites for it: 'Every person,' says he, 'is supposed a natural-born subject that is resident in the Kingdom and that owes a local allegiance to the King, till the contrary be found by office.' This reason, it will be perceived, applies with double force to the resident who has acquired of the sovereign himself, whether by purchase or by favor, a grant of freehold."

That grantees of the public land take by purchase this court, in Manuel v. Wulff, left no doubt. It was said that when a location is perfected it has the effect of a grant by the United States of the right of present and exclusive possession. Forbes v. Gracey, 94 U. S. 762, 24 L. ed. 313; Belk v. Meagher, 104 U. S. 279, 26 L. ed. 735; Gwillim v. Donnellan, 115 U. S. 45, 29 L. ed. 348, 5 Sup. Ct. Rep. 1110; Noyes v.

uary 6, 1902.

N WRIT of Certiorari to the United

Seventh Circuit to review a decree affirming a decision of the Circuit Court adjudging a patent invalid. Affirmed.

See same case below, 41 C. C. A. 123, 100 Fed. 965.

The facts are stated in the opinion. Messrs. Lysander Hill, William R. Omohundro, Ernest Wilkinson, and Raymond & Barnett for petitioner.

No counsel for respondent.

July, 1825, and the 19th of May, 1896. The | however, the line or joint between the old first, 501,587, was for an improved "method of repairing asphalt pavements;" the other numbers were for "improvement in apparatus for repairing asphalt pavements.' The bill contained the usual allegations of invention and infringement, and prayed an injunction.

The answer admitted the issue of the patents, but denied that Perkins was the original and first inventor of the subject-matter, or that the improvements therein disclosed constituted new and useful inventions within the meaning of the patent laws, or that said improvements were not known or used in this country, or had not been patented or described in any printed publication in this or in foreign countries before the alleged invention thereof by Perkins.

*The petitioner dismissed the bill as to patent number 542,349. Upon the hearing the circuit court sustained the apparatus patent number 560,599, finding that the Assyrian Asphalt Company had infringed upon that apparatus, and ordered an injunction and a reference for an accounting. The method patent, number 501,537, was adjudged invalid, and the court said:

hardened material and the new material has been plainly discernible, and more often there has been more or less of a ridge. Again, this new block of material, by reason of frost or from other causes, is frequently torn loose from its soldered connection with the old material, thus necessitating new repairs. In practising my invention, however, I subject the spot to be repaired and the surrounding edges to such a degree of heat that the surface asphalt-not only the exact spot to be repaired, but the surrounding portion, to a greater or less degree is reduced to the soft pliable state in which it is originally laid. With a rake or other suitable instrument it is then agitated and mixed with enough new material to fill up the spot to be repaired. It is then subjected to the usual finishing operation of ironing and burnishing. The heating of the surface may be accomplished in various ways and by means of various forms of apparatus, and while I have herein shown but one form for accomplishing the result, yet I would have it understood that I do not limit myself to any particular form of apparatus for carrying out my invention."

The apparatus described consists of a suitable tank mounted on a wheel for carrying gasoline. The tank is connected with a series of horizontal pipes which carry a series of burners, and "project a flame downward against the pavement."

"From the evidence in this suit regarding the prior state of the art, and the argument before me, I find that the term 'asphalt' is not limited in its meaning to the Trinidad deposit, or to so-called 'American mixture,' but includes as well the bituminous paving material used in France and elsewhere, com- "In carrying out the invention A repre prising natural rock asphalt and composi- sents a suitable tank for carrying gasoline tions of bitumen and lime or sand particles; mounted on the wheeled frame B and conand that the claims of the Perkins method nected by the pipe C with a series of horipatent are so broad with reference to the ap-zontal pipes, D. These pipes D carry a se plication of heat to the repair of asphalt pavements that they are anticipated by the Crochet patent, and are invalid." [96 Fed. 236.]

The petitioner took an appeal to the court of appeals, and that court affirmed the judgment of the circuit court. 41 C. C. A. 123, 100 Fed. 965. The case was then brought here by a certiorari.

The proceedings here are only concerned with the method patent, number 501,537. The letters patent describe the invention as follows:

ries of burners, E, which pass through a hood or shield, F, and project a flame downward against the pavement. Pressure is then obtained upon the gasoline to force it to the burners and to produce a blast by means of an air pump, G, mounted upon the tank."

The letters patent further say:

"The apparatus is also provided with a handle, H, whereby the operator may readi ly move it to the desired spot. Now, as would be seen by turning on as many of the burners as are desired, a strong blast "My invention is designed to produce a of heat is projected against the surface of method whereby the repairing of asphalt the asphalt, and readily melts it. pavements may be quickly and cheaply ac-plained above, when it is desired to repair complished, and a neater appearing pave ment be obtained after repairing than has heretofore been the case.

As ex

a spot, the apparatus is moved adjacent thereto with the burners directly above the spot. These soon reduce the surface as"Heretofore in the repairing it has been phalt, both at the spot and at the surroundcustomary to dig out with a pick or other ing edges, to a pliable state, the strong instrument the surface material around the blast causing not only the immediate surspot to be repaired, sometimes applying heat face, but the particles deep down, to be to the spot to soften the material so that it melted and yet not burned. With a rake may be more easily removed. When the or other suitable instrument the operator material has been removed the depression then agitates or stirs up the softened mate thus made is thoroughly cleaned and given a rial, and, by adding new material of substancoat or dressing of tar. New material in a tially the same degree of softness, the spot or heated state has then been placed in the de- depression to be repaired is filled up and subpression. and been ironed down and jected to the usual smoothing and finishing smoothed off in the usual manner of finish-operation as in the case of a new pavement. ing, the tar acting as a solder to hold the This, as will be seen, is done without the use "ew material in place. When completed, of the tar for the purpose of uniting the

*595

"When it was designed to repair or recharge a roadway in asphalt with the means which are now at command, the operator "1st. The softening of the upper surface generally delimits with a pick the part of the asphalt layer at the part to be rewhich is to be replaced, and takes there paired, and the removal of such upper surfrom the asphalt; but it is rare that this face by means of a toothed scraper which operation has not for consequence the start-striates the part remaining. ing of the adjacent portions which are sound, swelling them up in such wise that at the end of a little while it is necessary to repair them in their turn.