It must not be understood, however, that an unreasonable monopoly can be obtained by one who manifestly undertakes to control the waters of public streams unfairly to prevent others having the use thereof; but no such question arises in this case, for in the agreed facts it is admitted" that at no time are the waters flowing over said premises sufficient to work said entire mining premises to the extent and upon the plans and purposes of said plaintiff as above detailed." Nor does a mere prior appropriation and use of waters on the public lands give the user unqualified and exclusive rights therein, except to the reasonable use thereof for his own operations; nor can one who subsequently desires to appropriate the excess or waste do so in a manner to destroy the first appropriator's property. What diminution of quantity or deterioration in quality will constitute an invasion of the rights of the first appropriator will depend upon the special circumstances of each case; and, in controversies between him and parties subsequently claiming the water, the question for determination is whether his use and enjoyment of the water to the extent of the original appropriation have been impaired by the acts of the other parties. Atchison v. Peterson, 20 Wall. (U. S.) 507, 22 L. Ed. 414. From the admitted facts in this case, it appears that plaintiff's grantors were the first appropriators of the waters in question; that the whole thereof are necessary to the proper and reasonable working of the mines belonging to the plaintiff; that no diminution thereof can be made by defendant without material injury to-possibly, the total destruction of— plaintiff's reasonable and proper plans for working the mines by barges, machinery, flumes, and sluice boxes. Judgment for plaintiff, who may have such relief, by injunction or otherwise, as will fully protect its accrued and vested prior rights in the premises. 2 A.R.-24 GAVIGAN et al. v. CRARY. (Third Division. Valdez. February 11, 1905.) No. 75. 1. PUBLIC LANDS-SOLDIER'S ADDITIONAL HOMESTEAD-ASSIGNMENT. A soldier's additional homestead certificate may be sold and assigned by the soldier, and the assignee may enter land with it in Alaska. [Ed. Note. For cases in point, see vol. 41, Cent. Dig. Public Lands, § 353.] 2. SAME-ADVERSE SUIT-PARTIES. An adverse suit brought to determine the respective rights of a claimant under the law permitting soldier's additional homestead certificates to be located on the public land in Alaska, and those who deny his right by adverse proceeding, under section 10 of the act of Congress of May 14, 1898 (chapter 299, 30 Stat. 413 [U. S. Comp. St. 1901, p. 1469]), may be maintained in the district courts of Alaska; the practice and parties being controlled and regulated solely by the Code of Alaska. Nome-Sinook Mining Co. v. Simpson, 1 Alaska, 578. 3. SAME-INTERVENTION-PARTIES. Settlers upon public lands claimed under the laws permitting soldier's additional homestead certificates to be located in Alaska may intervene in an adverse suit brought to quiet title thereto, though they have not filed an adverse in the the land office proceedings. 4. SAME LANDS SUBJECT TO ENTRY-MILITARY RESERVATION-SOLDIER'S ADDITIONAL HOMESTEAD. Public lands lying within the limits of a reservation for military purposes are not subject to entry under the soldier's additional homestead laws. [Ed. Note. For cases in point, see vol. 41, Cent. Dig. Public Lands, § 44.] 5. SAME. Where a tract of public land is actually set apart by an order of the War Department for military purposes, and government appropriations expended in fitting it for such use, and the military forces remain in possession thereof until its abandonment by a formal notice posted by the military forces, held, that it was a military reservation. The Copper River Exploring Expedition was organized March 17, 1899, at Washington, D. C., pursuant to general order No. 51 issued from the War Department. Capt. W. R. Abercrombie was placed in command, and the third subdivision of the general orders provided that: "(3) The commanding officer will select suitable locations at Valdez, Copper Center, the crossing of the Upper Copper, the crossing of the Tanana, the head of Forty Mile creek, and at such other points as in his judgment he may deem proper for military reservations, and will survey, lay out by metes and bounds, and declare such reservations, reporting his action hereunder to the Department for the approval of the Secretary of War." In pursuance to this authority, about April, 1899, Capt. Abercrombie took possession of a tract of land one mile square at the east end of Valdez Bay as a cantonment for his troops, for use in storing government property under his charge, as a base for his operations in relieving the unexpected misfortunes falling on a large number of mining prospectors, and in extending his reconnoissance into the interior of Alaska, as contemplated in his general orders. The southeast corner of the tract so occupied by the government was marked by a government monument, on which was posted or painted a description by metes and bounds of the tract so claimed and occupied by the military forces. At what date these acts of marking out the reservation took place is not clearly shown by the evidence, except that it is definitely shown that, before the defendant attempted to locate his soldier's additional homestead certificate, the boundaries were so clearly established, at least on the side where the town of Valdez grew up, as to exclude the town site settlers from the reservation, and the line between the town and the reservation was then clearly marked, and was and is now known as "Reservation Avenue." In the commanding officer's report to the Secretary of War for the year 1899 this reservation is located on the official map, signed by Abercrombie as commanding officer and Lieut. Babcock as topographical officer. See Exhibit 8-a. The following is a somewhat enlarged copy of that portion of the map showing the reservation and the adjoining town of Valdez: The deposition of Capt. Abercrombie was taken in this cause at Philadelphia, Pa., September 22, 1904, and on the question of the actual location of this reservation he testified: "I located a reservation a mile square in April, 1899, adjoining which the town of Valdez was subsequently built. I am unable at present to give metes and bounds from memory. Shortly after the survey was made in May, 1899, by Lieut. Walter C. Babcock, it was forwarded to Assistant Secretary of War for his approval, and was approved by him in a subsequent order by authority of D. G. Meiklejohn, Asst. Sec't of War, published in G. O. No. 51 (57) A. G. O. 1899, and is now on record at the War Department. At the time of location the metes and bounds were posted on signboard at the crossing of a small creek between the town of Valdez and the reservation, and the lands were marked out by stakes in the ground and by a line cut through the timber which divded the reservation from the town." In the spring of 1898, and prior to the reservation of the tract by Capt. Abercrombie, small tracts of this land were occupied and claimed by A. Von Gunther, the Pacific Steam Whaling Company, and Shepherd. The rights of the defend ant, and, so far as the evidence shows, of all other scrip claimants, originated after the declaration of reservation in April, 1899. Defendant On August 7, 1901, defendant, Crary, caused a tract of land containing 16.02 acres to be marked out within the exterior boundaries of the mile square so reserved by Abercrombie, and caused it to be platted as survey No. 337. claimed the said 16.02 acres as a soldier's additional homestead, as the assignee of the certificate of one Thomas Gardenhier, issued and assigned under the general laws of the United States relating to soldiers' additional homesteads. The survey No. 337 was approved by the commissioner of the general land office on February 9, 1904, and the field notes filed in the land office in accordance with land office rules. Defendant, Crary, had no improvements on the land, and was not in the actual occupation or use thereof on the 25th day of July, 1902, except in so far as his survey and claim thereto under the law relating to soldiers' additional homesteads constitued a use and occupation. On July 25, 1902, Capt. Eugene Wilson, commanding the military forces at Ft. Liscum and on the reservation in question, caused a notice to be posted limiting the reservation to a small tract whereon the United States telegraph station, stables, and other cantonment buildings stood, and abandoning the greater part of the reservation theretofore claimed within the mile square. Up to that moment the military forces had maintained an actual occupation on said tract, and had effectually prevented the encroachments of settlers thereon, although the prior rights of Von Gunther, the Pacific Steam Whaling Company, and Shepherd had been recognized, and they had been allowed to remain in possession of their respective tracts. On notice that the military authorities had abandoned said tract, and on July 25, 1902, large numbers of the residents of the town of Valdez swarmed onto the land, and, following the |