largely covered by the town of Skaguay, Field alleging, especially, in addition, a right to a portion of the land by virtue of prior possession and occupation.

A hearing was duly ordered for March 30, 1898, before the local officers, upon these protests, at which all parties appeared and evidence was submitted by all but said Field. As to him, upon his request therefor, a continuance was granted, and commissions were issued for the taking of testimony in his behalf at Juneau, Alaska, May 30, 1898, and at Dyea, Alaska, June 15, 1898, respectively. Field made no appearance thereafter in the case pursuant to the said continuance or otherwise. It does not appear, however, that any final disposition was made of his protest. It should have been dismissed for default, and that action is accordingly now hereby taken and his protest is dismissed.

Upon the evidence adduced the local officers found and held, in their decision dated August 15, 1898—

that the claimant has shown such long prior occupancy and possession, together with all due diligence in making improvements upon the land in said claim, that he could not equitably be deprived of the rights and benefits which have accrued by reason of such improvements.

First. That most of the buildings and other improvements were completed or started by the claimant before the persons who are now protesting, and others, settled upon the land in question and asserted any rights thereto. (Page 21 Final Proof; pages 48, 71, 85, 100, 122 and 133, protest. test.; also pages 8, 10, 11, 14, 15, 31, 32, 35, 36, 55, 68, 72, 85, 86, 98, 108, 112, 113, 137 and 160, protest. test.) And that the claimant, shortly after such persons did arrive and settle on said claim, served written notice on several of these persons and posted copies of the same, warning them that they were trespassers and demanding that they deliver up possession. (See claimant's Exhibit “A”-Emery Valentine es. Bernard Moore, and indorsement thereon.) And that promptly after its receipt, claimant posted the notice of application for patent in front of the post office at Skaguay. (See date of notice of application and page 80 protest. test.)

Second. That having obtained the necessary financial assistance under the terms of his agreement with E. E. Billinghirst, he went on and completed such buildings, mill and wharf, as would constitute quite a considerable trading and manufacturing plant.

The board is convinced that the claimant has acted in good faith, employing all legitimate means to perfect his improvements and establish his title to the land claimed.

A preponderance of the evidence shows that but a portion of the land embraced in Bernard Moore's claim, is or was actually occupied and used by him for the purposes of trade and manufacture; that the timber on such claim is of such a character that little or none of it can be used for manufacturing into lumber, and that his improvements occupy but a small portion of the water frontage. It is shown that little or no lumber has ever been manufactured from the timber cut on the claimant's land, and that logs were and are brought up Taiya Inlet and floated up to the mill to be sawed up. (Pages 10, 22, 55, 59, 82, 124, 126, 137, 148, protest. test.)

In order to include all of the improvements before mentioned and yet exclude the

large areas not occupied by the claimant, as in like manner contemplated in the decision of the Hon. Secretary of the Interior dated March 4th, 1898 (ex parte John G. Brady), the board deems it advisable to take some latitude in interpreting that portion of Par. 13 of the rules and regulations governing non-mineral entries in Alaska, approved June 3rd, 1891, which provides that the land "must be in one compact body and as nearly in square form as the circumstances and configuration of the land will admit," and to allow the applicant to amend his survey as indicated below, so that the land will be in the shape of an inverted letter "L."

Beginning at a point on the east line of U. S. survey No. 13 about 14 chains south of corner No. 13, thence along said east line to corner No. 1, thence following the meander line of said U. S. survey No. 13 to corner No. 4, thence northerly on a line parallel to the line of Moore's wharf 2 chains, thence N. 37° 30′ E. 8 chains, thence N. 52° 30′ W. 11 chs., thence N. 37° 30′ E. 14 chs., thence S. 52° 30′ E. about 22 chs. to point of beginning.

The board have indicated in pencil upon the official plat of said U. S. survey No. 13, approximately, the lines as above described.

By so amending said survey, the claimant would acquire sufficient of the water frontage to transact all his wharfage, lumber and other business and yet leave a large portion open to the use and occupancy of others. He would receive all of the land actually occupied by his improvements and used by him for trading and manufacturing and but little more.

We believe the claimant to be justly entitled to this, and we so rule.

Upon appeal by claimants, by protestants, and John G. Price et al., your office, by decision of July 11, 1900, reversed the decision of the local officers, finding that the trading and manufacturing carried on on the land was not carried on by the claimant," and that claimant had not shown, as required by paragraph 34 of circular instructions approved June 8, 1898 (27 L. D., 248, 268), under the act of May 14, 1898 (30 Stat., 409), that the tract claimed does not include improvements made by or in possession of another person, association or corporation, and therefore held his application to make entry for rejection. From the decision of your office Moore has appealed to the Department.

It appears that Moore, who was the first occupant or claimant of any part of the land, went upon it in the latter part of 1887, cut some timber, put in cribs for a wharf, and cleared a small portion of the land. He then left, but returned early in June of the following year, built a log cabin on the land, enlarged his clearing and raised some vegetables thereon. He also filed, September 13, 1888, in the office of the district recorder at Juneau, Alaska, a notice of location of the land, wherein, after describing the tract, he recites his possession and claims the same for agricultural purposes by reason of actual occupation and appropriation. Moore was thereafter in the sole and undisputed possession and occupancy of the land until about midsummer of 1897, at which time the improvements thereon were the log house already mentioned, with frame addition, used for residence of himself and family, several acres cleared and partly fenced, a stable, a new wharf and approach, nearly completed, a store building and stock of merchandise, a bunk house, house occupied by Moore's father, a saw mill nearly complete,

two small log houses for men employed about saw mill and wharf, bridges over streams, wagon road, and skid roads into the timber. July 3, 1896, Moore filed in the office of the district recorder above mentioned a sworn notice reciting his location of 1888, but now claiming the land under the provisions of the act of 1891, supra, for purposes of trade and manufactures.

At the date of Moore's application to be allowed to make final proof and entry, September 16, 1897, the wharf and saw mill were com plete, the latter in operation with a capacity of 15,000 feet of timber per day, the entire improvements were valued at over $50,000, and the business amounted to over $5,000 per month. Other improvements were made between the last mentioned date and the close of the hearing upon the said protests, and the business of the store, wharf and saw mill had considerably increased.

In June, 1896, Moore entered into an agreement with one Ernest Edward Billinghirst, of Victoria, British Columbia, trustee for certain undisclosed principals, wherein, after reciting his (Moore's) previous possession and occupation of the land and water frontage thereof, and that he

has used the same as a steamboat landing and for other purposes and still uses that portion of the wharf built by him on the said water frontage which has not heretofore been washed away, and is desirous of obtaining a government patent or other absolute title for the said land and water frontage and to rebuild and extend his wharf and wharfage accommodations,—

he agrees, in consideration of $1848 received from said Billinghirst, as trustee, aforesaid, and of other moneys to be advanced by such trustee, to take the necessary steps to have the land surveyed and patent issued to him, the said Bernard Moore; to execute and deliver on demand, after the issuance of such patent, a mortgage to Billinghirst, as trustee, to secure the payment of all moneys theretofore or thereafter so received and advanced, and, in the mean time, to charge and create a lien on the land and water frontage on account of all such moneys; that all costs and expenses, necessary and incidental, incurred by said trustee in connection with the obtaining of title to the land, and a reasonable remuneration to him for his time in connection with the subject-matter of this agreement," shall be included in the said mortgage, charge or lien, "and to be eventually paid by the said Bernard Moore"; that in lieu of "accepting repayment for all such monies as aforesaid," the said trustee shall have the option, after patent, "to demand and receive an absolute conveyance of an undivided one-half interest in said land and water frontage and privileges, with all improvements thereon," which conveyance said Moore agrees to execute and deliver at said trustee's cost; and that he will well and truly pay to the said trustee, on demand, the said sum of $1848, and all other sums of money, if any, which may thereafter be advanced by the said trus

tee or disbursed by him pursuant to this agreement. The said agreement was executed and acknowledged by the parties thereto June 29, 1896, and was filed for record in the office of the ex-officio recorder for the district of Alaska, July 8, following.

It is mainly upon this agreement and the alleged management and control by Billinghirst and those whom he represented of the business carried on at the said wharf, store and saw mill, after the execution of the agreement, and their alleged ownership of the major part of the improvements herein before mentioned, that protestants' case against Moore is based. Without entering upon any extended discussion of the evidence relied upon to establish such alleged management and control, or such alleged ownership, by Billinghirst or those he represented, it is enough to say that it is not shown that there was any participation in or management or control of the said business, or any branch thereof, by them or any of them, or that they or any of them had any interest in the said improvements or exercised any ownership over the same which was not entirely consistent with the terms of the said agreement and properly permissible thereunder. The evidence shows that the business was initiated by Moore, that he has not at any time ceased to be identified therewith or surrendered control thereof, or done or permitted to be done anything which would not consist with his possession and occupation, under the act of 1891, of all the land needed for the carrying on of such business.

The said agreement is not in violation of any provision of the said act. There is nothing in the act which would preclude the giving of a mortgage or the creating of a charge or lien upon the proporty, as agreed by Moore, in order to obtain money with which to carry on his business there, nor that would prohibit the option therein given to Billinghirst or those he represented, to demand and receive from Moore a conveyance of an undivided half of the property after patent, in lieu of payment of moneys then due him or them under the said agreement. It would have been no infraction of the act of 1891, nor of any other law, for Moore to have mortgaged, or agreed to mortgage, the property prior to the issuance of patent in order to secure means necessary to carry on there any business within the purview of the

statute.

As against the United States said agreement gave no right to Billinghirst or his principals and could only become operative upon such title as Moore might ultimately acquire. Viewed in this light, it would not affect the case at all, if, as contended by protestants, it be true that Billinghirst, or his principals, or both, are aliens. By section 3 of the act of March 2, 1897 (29 Stat., 618), aliens are permitted to acquire liens or mortgages upon real estate, in any of the Territories of the United States, as security for money lent; and also to enforce such liens and mortgages and acquire and hold title, for a limited period,

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"to such real estate, or any interest therein, upon which a lien may have heretofore or may hereafter be fixed, or upon which a loan of money may have been heretofore or hereafter may be made and secured."

No claim of prior possession and occupancy, for townsite or other purposes, by any of the protestants, could be sustained against Moore as to any of the land in controversy necessary for the carrying on of the business which was being conducted thereon when, in the summer of 1897, the tide of fortune seekers which the then recent discoveries in the klondike or upper Yukon region had brought to Alaska began to flow in upon the tract on which Moore had located and claimed and of which he had for so many years prior thereto been in the undisputed possession. His claim and possession were then, and had been theretofore, open and notorious. That these protestants, and hundreds of others who established themselves in tents and cabins on the land he claimed, had notice of his claim, there can be no doubt. They not only disregarded and utterly ignored his claim of possession and occupancy beyond narrow limits about his residence, the wharf, saw mill and store, but they seized upon and occupied, and were still occupying at the time of the hearing, several of his buildings.

It is not necessary to consider what rights in or to the land Moore acquired, as against any subsequent claimant or a mere intruder, by his location, occupation and improvements prior to his assertion of a claim thereto under the act of 1891. That he did acquire rights by such location, occupation and improvements which he could have maintained as to all others except the United States is well settled (Davenport v. Lamb, 13 Wall., 418; Malony v. Adsit, 175 U. S., 281). It is enough that as to all the land necessary to his business Moore's occupancy, possession, and claim under the act of 1891 are prior to any occupancy, possession or claim by any other person under that or any other act. No such force, therefore, can properly be given in this case to the requirement of paragraph 34 of circular instructions under the act of May 14, 1898, supra, as your office decision proposes to give it. The most that was intended or that could have been intended by the said requirement was to afford due protection to prior property rights. It was certainly not intended to encourage or sanction open and high-handed invasion and trespass upon the property of another. or to secure to such invader and trespasser the fruits of his wrongful

acts.

It only remains to inquire whether Moore is entitled to make entry of all the land he claims-one hundred and sixty acres-or of a portion thereof, only. His entry must be limited to the land possessed and occupied by him for purposes of trade and manufacture, taken in the form prescribed by the statute, that is, "as near as practicable in a square form" (John G. Brady, 26 L. D., 305, 308, and cases there