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.

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. Defendant 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

lines of the streets of Valdez extended, located the greater portion of the abandoned reservation, including Crary's claim, as a town site. On the evening of that day, between 7 and 11 o'clock, after some of the town-site claimants had entered on his claim and staked lots, and posted notices of their claims, Crary stretched a barbed wire along some portions of the boundaries of the land claimed by him. This wire fence was not maintained. The owners of live stock running at large on the open lands cut it, and the evidence does not disclose that it was such a fence as would protect the land from the encroachments of stock; it was no more than a mere notice of Crary's claim, and soon disappeared.

Thereafter, and in September, 1902, these town-site claimants, plaintiffs and interveners, built on their respective lots, and thereafter the tract was, and is now, occupied by their permanent homes. In pursuance to his claim, the defendant applied to enter said land as a soldier's additional homestead, and on March 7, 1904, caused public notice of his intention to apply for patent to be issued from the United States land office at Juneau, Alaska, and to be published in the "Prospector" at Valdez. This suit was begun by the four plaintiffs within 60 days thereafter, to quiet their alleged title thereto.

On December 14, 1904, a petition of J. Whitney and 28 other persons was filed, asking to intervene in said suit as being persons situated similarly with the plaintiffs, and, over the objection of defendant, they were permitted to do so. Being at issue, the cause was tried before the court without a jury.

Brown & Smith, for plaintiffs and interveners. Goodell & Edwards and Ostrander & Donohoe, for defendant, Crary.

WICKERSHAM, District Judge. A preliminary objection to the jurisdiction of the court must be examined before the merits of the case can be considered. In addition, the court

must say what issues of law and fact are presented for its judgment by the pleadings and evidence in the case.

The defendant bases his right to the property in controversy on a soldier's additional homestead entry, made under an assigned certificate issued to one Thomas Gardenhier. The Supreme Court of the United States, in the case of Webster v. Luther, 163 U. S. 331, 16 Sup. Ct. 963, 41 L. Ed. 179, carefully examined the general laws then in force in relation to soldiers' additional homestead entries on the public lands, and expressly settled the rule that the certificate issued to the soldier or sailor for his additional claim may be sold and assigned by him, and that his assignee may locate the certificate on any of the public lands of the United States subject to homestead entry.

By the first section of "An act extending the homestead laws and providing for right of way for railroads in the District of Alaska, and for other purposes," approved May 14, 1898, it was provided:

"That the homestead land laws of the United States and the rights incident thereto, including the right to enter surveyed or unsurveyed lands under provisions of law relating to the acquisition of title through soldiers' additional homestead rights, are hereby extended to the District of Alaska, subject to such regulations as may be made by the Secretary of the Interior." Chapter 299, 30 Stat. 409 [U. S. Comp. St. 1901, p. 1412].

As the assignee of the soldier's additional homestead certificate issued to Gardenhier, the defendant initiated his entry of this land on August 7, 1901, and took such steps thereafter as were necessary to procure an official survey and its approval by the Land Department, whereupon, and on March 7, 1904, he made application to enter the land under said certificate and the laws applicable thereto.

Subsequent to the initiation of his entry, and prior to his application on March 7, 1904, Congress passed an act to amend section 1 of the act of May 14, 1898 (chapter 299, 30 Stat.