ceny at the common law, while the unlawful taking of a dog never was. I cannot agree with that argument.

Whoever gives time to the study of the ethnology or history of Alaska learns that the dog has been, next to man, the most important factor in its past and present development. The Eskimo tribes along 10,000 miles of Arctic shore line have long used the dog as a beast of burden, and out of the survival of the fittest they have there developed a type particularly adapted to the rigors and hardships of hyperborean life. Russian discoverers found him drawing native sleds along the Arctic ice. pack; the earliest Hudson Bay traders were carried into the remotest recesses of the great fur land, and their rich packs transported to distant posts, by this faithful animal. When the discovery of the Klondike and Alaskan gold fields attracted American miners into this region, he was found to be their most useful and faithful assistant. He has ever since been the constant companion and servant of the prospector, miner, and freighter, and without his aid the efforts of even American miners to develop the gold fields must have languished. He carries the United States mail from Dawson to Nome and return, to the Koyukuk and the Tanana. As an aid to the administration of justice he has overtaken many a fugitive criminal, transported the officers of the law and the mandates of this court and in the performance of my own official duties I have traveled more than 1,000 miles during a winter along the frozen Yukon with my team of native dogs, my blankets, food, and court's files and documents. Last winter a whole population of American citizens invaded the trackless wilderness of the Tanana Valley, crossing a snowy range along a sled-marked trail, and founded permanent settlements in the Fairbanks gold fields, using the dog as the only means of transportation. The dog has a fixed market value as a beast of burden and a domestic animal in central and northern Alaska, and is to this far northland what the horse was to the development of the great plains west

of the Mississippi river. It ought not to be presumed that Congress was ignorant of his value to the people of Alaska when it passed the Penal Code. On the contrary, the court will take judicial notice of its use by the native tribes, and the important part which it has taken in the development of central and northern Alaska, and its use as a domestic animal. are matters of common notoriety.

These

The common law of England has been extended to Alaska. Section 218 of the Penal Code provides:

"The common law of England as adopted and understood in the United States shall be in force in said district, except as modified by this act."

A year later Congress enacted in the Civil Code (section 367):

"So much of the common law as is applicable to and not inconsistent with the Constitution of the United States or with any law passed or to be passed by the Congress is adopted and declared to be the law within the district of Alaska."

What is the common law of England, and what part of it is applicable to and in force in Alaska under these enactments? The common law includes those principles, usages, and rules of action applicable to the government and security of person and property which do not rest for their authority on any express and positive declaration of the will of the Legislature (1 Kent's Com. 533); a system of elementary principles and of general judicial truths which are continually expanding with the progress of society, and adapting themselves to the gradual changes of trade and commerce and the mechanic arts and the exigencies and usages of the country (Pierce v. Props. Swan Point Cemetery, 10 R. I. 227, 14 Am. Rep. 667).

In the case of Wheaton v. Peters, 8 Pet. 591, 8 L. Ed. 1055, the Supreme Court of the United States said:

"When the ancestors of the citizens of the United States emigrated to this country, they brought with them, to a limited extent, the

English common law as part of their heritage. No one will contend that the common law as it existed in England has ever been in force in all its provisions in any state in this Union. It was adopted only so far as its principles were suited to the condition of the colonies, and from this circumstance we see what is common law in one state is not so considered in another. The judicial decisions, the usage and customs of the respective states, must determine how far the common law has been introduced and sanctioned in each."

And in Patterson v. Winn, 5 Pet. 233, 8 L. Ed. 108, the same court held:

"These statutes, being passed before the migration of our ancestors, being applicable to our situation, and in amendment of the law, constitute a part of our common law."

Also in the case of the United States v. Shepherd, Fed. Cas. No. 16,273, it was held:

"The English system of jurisprudence brought by our ancestors as the common law and those statutes applicable to the situation of the colonies, which extended to them and were adopted by usage or acts of assembly, have been by the United States courts held to be the common law of this country. Patterson v. Winn, 5 Pet. 241, 8 L. Ed. 108; Bains v. The James & Catherine, Fed. Cas. No. 756.

Judge Cooley lays down this doctrine in his Constitutional Limitations (section 25):

"The colonies had Legislatures of their own, by which laws had been passed which were in force at the time of the separation, and which remained unaffected thereby. When, therefore, they emerged from the colonial condition into that of independence, the laws which governed them consisted-first, of the common law of England, so far as they had tacitly adopted it as suited to their conditions; second, of the statutes of England or Great Britain amendatory of the common law, which they had in like manner adopted; and, third, of the colonial statutes. The first and second constituted the American common law."

See, also, Sedgwick, St. & Const. Law, 10, 14. And in the case of Browning v. Browning the Supreme Court of the territory of New Mexico, under a statute similar to ours, held:

"We are therefore of opinion that the Legislature intended by the language used in that section to adopt the common law, or lex loci

non scripta, and such British statutes of a general nature not local to that kingdom, nor in conflict with the Constitution or laws of the United States nor of this territory which are applicable to our condition and circumstances, and which were in force at the time of our separation from the mother country." 3 N. M. (Johns.) 469 (Gild. 659), 9 Pac. 682.

Such is the understanding of the common law in the United States.

The common law of England, then, is in force in Alaska only so far as its principles are applicable and are suited to the conditions of the country and the necessities of the people, and not repugnant to our laws or to the established customs and usages of the people of the territory. Blackstone has defined. larceny to be "the felonious taking and carrying away of the personal goods of another." Unless the property stolen had a real value, however small, it was not larceny to take it. Under this doctrine it was held not to be larceny at common law to take another's dog. Blackstone puts it upon the ground that the dog is one of "those animals which do not serve for food, and which, therefore, the law holds to have no intrinsic value." Only property of some value could be the subject of larceny in England under the common-law rule, and dogs had no intrinsic value, and for this reason alone they were not the subject of larceny. In Alaska, on the contrary, dogs have a fixed and permanent value as beasts of burden, and hence, even under the principle of the common-law rule in England, are the subject of larceny.

But the old common-law rule in England had been changed prior to our independence by the statute of Geo. III, c. 18, which provided high pecuniary penalties or a long imprisonment, and whipping in their stead, on such as stole a dog. 4 Blackstone, Comm. 236. At the date of our independence that statute was in force. It seems to follow, logically, that the old common-law rule never became the rule in the United States, for the statute of Geo. III, being in amendment of the com

mon law and applicable to our condition, became the rule instead.

However this may be, the weight of authority and the more recent decisions favor the conclsuion that the word "chattels❞ in section 41 of the Penal Code of Alaska is sufficiently broad and comprehensive to include, not only the hog and sheep, but the dog, and that upon the enactment of that section by Congress it was and now is a larceny to unlawfully take and convert another's dog. Hamby v. Samson (Iowa) 74 N. W. 918, 40 L. R. A. 508, 67 Am. St. Rep. 285; Com. v. Hazelwood, 81 Ky. 681, 2 S. W. 489; Harrington v. Miles, 11 Kan. 481, 15 Am. Rep. 355; Mullaly v. People, 86 N. Y. 365; State v. Yates, 19 Ohio L. J. 150, 10 Crim. Law Mag. 439; State v. Brown, 9 Baxt. (Tenn.) 53, 40 Am. Rep. 81; Hurley v. State, 30 Tex. App. 333, 17 S. W. 455, 28 Am. St. Rep. 916; Lynn v. State, 33 Tex. Cr. R. 153, 25 S. W. 779. In this territory the dog is property—a chattel with a fixed market value as a domestic beast of burden-and is the subject of larceny, within the very principle of the old common-law rule. The writ applied for will be denied, and the prisoner remanded to the custody of the marshal to serve his sentence.

KETCHIKAN CO. v. CITIZENS' CO.

(First Division. Juneau. August 24, 1903.)

No. 233a.

1. MINES AND MINERALS-STATUTES-WATER RIGHTS.

Section 2339, Rev. St. 1878, 14 Stat. 253 [U. S. Comp. St. 1901, p. 1437], concerning the vested rights to the use of water for mining, right of way for canals, etc., passed July 26, 1866, has not been put in force and is not in force in Alaska. This is not a part of the mining laws of the United States, but is an independent statute.

2. WATERS AND WATER COURSES-RIPARIAN RIGHTS.

Water rights in Alaska are restricted to what is known in common law as riparian rights. These depend upon the owner