and well-known dangers of such place, and by the acceptance of the employment the servant necessarily assumes them." Was the danger that confronted the plaintiff in the case at bar made apparent and created by the changing conditions of the work as it progressed? If so, it is said that it is a danger inherent in the business in which the servant was engaged, and a risk that he assumes in entering the employment. Certainly it must be true as a proposition of law that where the rules of the company require a servant to make examination from time to time concerning these changing conditions, and make the place a safe one by removing the elements of danger, or by reporting the conditions to his immediate boss, emphasizes to some extent the rules of the common law, and imposes upon the servant a positive duty as to these changing conditions for his own protection. The master cannot be present at every moment of time to constantly examine the changing conditions in a mine, but he can formulate rules, and have them so understood by the employé or servant that he will be advised, at least, that he must make examinations for his own protection; and whether the danger is one that inheres in the business, or one that may become patent by reason of the changing conditions, the servant is bound by the rule to make the examination, and a failure by him to thereby guard against the threatening danger, if there be such danger, is his own wrong and his own fault.

It is generally held that contributory negligence is a question for the jury, and is one that should never be taken from a jury unless the case is so clear that in case of a verdict against the defendant it could not be sustained by the court. Counsel for the plaintiff urges with a great deal of earnestness and skill his claim that the evidence in the case as to contributory negligence is at least contradictory, and is therefore a question peculiarly for the jury. If counsel

were right in his assumptions of fact, I should readily agree to that proposition; but is that true? The plaintiff testifies, and his testimony is practically the only testimony on the proposition furnished by the plaintiff, that the rock that fell upon him came from the surface and was beyond his view; that he could not, after the blast and before resuming his work, from the point where he was working see the place from which the rock came. Another witness (his brotherin-law) testified that after the injury he went up onto the surface, and found the ground cracked and opening at the surface at a point immediately above the place where the plaintiff was working. The condition of the ground after the accident only tends to show the conditions as resulted from the blast that had occurred immediately before the plaintiff resumed his work of drilling. The same place had been examined by the foreman before the blast, and no dangers were apparent; there were no openings in the surface or near the surface, and nothing to indicate danger from that quarter. If danger was created by the blast, it was one of the changing conditions of the work that the defendant himself should have observed. If it was not a condition created by the blast, the softening of the rains, and the weather, then the action of the master in examining the place from which it is claimed the injury came discharged his duty of reasonable precaution, and the court would be compelled to instruct the jury were the question submitted to them. So that in either event it seems that there is no question to present to the jury on the proposition if the danger came from the surface, as contended. That was one. of the inherent risks of the employment. If the injury came from a place immediately about the plaintiff as a result from the blast, the question of contributory negligence is too plain for discussion, even in view of the duties devolving upon the servant in this changing condition of the mine, and

the rule which made it his special duty to examine as to those conditions. The only doubt raised in my mind in considering the proposition of safe place and the contributory negligence of the plaintiff in this case arises from the general conditions existing at this mine. The suggestion has come to my mind that it might be the duty of the master, under the conditions as they exist at this mine, to have the walls examined after each blast by some person more capable of determining the degree of danger than an employé operating a machine drill. But there is no evidence in this case upon which such a question can be raised, but I suggest it for the consideration of counsel and the parties. There is no doubt but that this question will some time be squarely presented to the court.

Under all the circumstances of the case, however, I am forced to the conclusion that the defendant is not liable. I shall therefor instruct the jury to find for the defendant.

CRAWFORD v. BURR et al.

(Third Division. Valdez. February 16, 1903.)

No. 5.

1. PUBLIC LANDS-MILITARY RESERVATION.

Plaintiff acquired peaceable possession of a small tract of land for a horse lot and stable on the military cantonment or reservation at Valdez by permission of the commander of the post. Held that, as against the government, he was a mere trespasser, liable to be ejected without notice by the military authorities; he initiated no right to the ground by such possession.

[Ed. Note. For cases in point, see vol. 41, Cent. Dig. Public Lands, §§ 51-53.]

2. PUBLIC LANDS-EJECTMENT.

The military reservation at Valdez was formally abandoned July 25, 1902. Plaintiff was then in possession of a stable there2 A.R.-3

on, but without any fixed boundaries or other claim of right to any portion of the ground. The land was located by town-site claimants. Plaintiff brought ejectment to recover possession. Held, that he was limited to the land actually occupied by his stable.

[Ed. Note. For cases in point, see vol. 41, Cent. Dig. Public Lands, §§ 51–53, 92.]

This is a suit in ejectment to recover a tract of land 100 feet wide fronting on Reservation avenue, and extending back therefrom 214 feet. It is conceded by both parties that the tract was embraced in the Valdez military reservation at all times in question till the formal opening of the reservation on July 25, 1902. Plaintiff shows that in the fall of 1900 he obtained a verbal permission from Captain W. R. Abercrombie, then in charge of military affairs at Valdez, to erect a small log barn on the premises, which he continued to use from time to time until the opening of the reservation in 1902. He testifies that at that time he also built a brush fence inclosing the tract in dispute, though the evidence to support this is vague and very unsatisfactory. Plaintiff admits that the fence disappeared in the winter of 1900 or spring of 1901, and was never replaced, while other witnesses deny its existence then or at any time. There is some testimony to show that in 1901 one Ammon, an adjoining claimant, set some posts around a tract claimed by him, and possibly a few on the Reservation avenue line of the property in dispute, but no claim is made that such a structure as a fence, then or at any subsequent date, inclosed the disputed tract. The ejectment is based solely on the presence of this small log barn and the alleged brush fence, both built in 1900. The defendants claim title by settlement on July 25, 1902, the date of the formal opening of the military reservation to settlement. They, in company with a great number of other persons, took up this military reservation after its abandonment on that day for town-site pur

poses, divided it into lots, blocks, and streets, and erected houses on their various lots for residence and other purposes. It is to remove these town lot claimants that plaintiff brought this action in ejectment. Both parties waived a jury, and requested the court to hear and determine the controversy.

Leedy & Kelsey, for plaintiff.

Goodell & Edwards, for defendants.

WICKERSHAM, District Judge. Two important questions are involved in this case and determine the action: (1) What right did Crawford acquire in the tract in controversy by his erection of the barn and alleged brush fence in 1900 and his possession thereby; and (2) what rights had he in the tract on July 25, 1902, when defendants entered and took possession? The land having been set apart and used as a military reservation under the direction of the Secretary of War, and the public funds having been expended thereon for such purposes, it became a military reservation, subject to the rule announced in the early case of Wilcox v. M'Connell, 13 Pet. 498, 10 L. Ed. 264, and affirmed in Grisar v. McDowell, 73 U. S. 363, 18 L. Ed. 863. The pre-emption act of 1830 provided that its provisions should not "extend to any land which is reserved from sale by act of Congress or by order of the President, or which may have been appropriated for any purpose whatever." The pre-emption act of 1841 specially excluded from its operation "lands included in any reservation by any treaty, law, or proclamation of the President for any purpose." The general policy of the homestead and pre-emption laws from the inception of our public land laws forbade any settlement upon the military or other government reservation, and all such settlers were, and now are, treated as trespass