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Brief for Moore 1899

Notice to Quit

To all persons

You are hereby notified to deliver up to me the possession of the land and premises known and located as the Bernard Moore trading and manufacturing site, and which has been occupied and held by me for the past ten years, and described as follows; being one-hundred and sixty acres fronting on Skagway Bay, head of Tiay [sic] Inlet, South Eastern Alaska; that the ground you are now on is part of said tract. Dated at Shkagway [sic]. Alaska. August. ____________ 1897

Owner and occupant, [signed] J. Bernard Moore.

The following document is the Brief prepared by Defendants for their appeal to the case in October 1899, after the lawsuit had originally been adjudicated in favor of the citizens of Skagway. The following Brief provides important (albeit biased) historical information about the condition of Skagway in the months of 1896 through 1898.

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Before the

Commissioner of the General Land Office.

J.F. PRICE, et al.,



BERNARD MOORE, Applicant to Purchase

Involving Moore's application to purchase 160 acres of land on Skagway Bay, Alaska, known as "U. S. Survey No. 13" for Trading and Manufacturing purposes. Sitka, Alaska, Land J District.


Application for Patent and Final Proof.

September 10, 1897, Moore filed application for patent for land in controversy at Sitka Land Office claiming same for trade and manufacturing purposes under the act of March 3, 1801 (26 Stat. 1095.)

November 4, 1897, the day appointed by the Register to hear Moore's final proof, protests against same were filed by Price and Valentine; and Moore not appearing, the case was continued from day to day to November 6, when Moore's attorney appeared in his behalf and submitted final proof hereafter referred to, whereupon the case was continued from day to day to November 15, 1897, for any additional proof Moore might offer (it appearing by affidavits afterward filed, that he was delayed by storms), when the case was declared closed as to

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Prior Possession, Improvements and Use of Claim.

Moore's Testimony embracing his cross-exami­nation by protestants shows that he first went on the claim in 1887.

That in 1888 he built his first log house, prepared a garden and on Jan. 13,1888, posted on the claim a location notice declaring his intention to claim this tract and to secure title thereto from the United States as soon as the agricultural laws were exten­ded to Alaska.

Each year since that time, Moore and his father have lived and worked upon the claim more or less until the Spring of 1896 when Moore went upon the claim to reside permanently and has resided there ever since.

From 1888 to the Spring of 1896 Moore was en­gaged in fishing, boating and other avocations in that vicinity, by which he was able to earn from $4 to $10 a day; but on February 2, 1896, he went on the claim to permanently improve and use it for Trade and Manufacturing purposes, taking with him a laborer who assisted him in cutting timber, clear­ing ground, cutting trail one mile in length, improv­ing old house and other work.

In May, '96, he shipped to the claim $500 worth of provisions, hardware and other merchandise for sale and trade purposes, which he sold as he had opportunity.

July 3,1896, he posted a second location notice on the claim declaring his intention to take and use the same for Trade and Manufacturing purposes under the law of 1891, fully describing the claim,


and which notice he had recorded in the Juneau Recording District.

Also in July, 1896, he shipped to the claim in his own schooner ten tons of freight and merchandise, consisting of horses, six thousand feet of lumber, feed, etc., put three men to work on the place be­sides working himself.

In August, 1896, he had shipped to the claim a wagon and other supplies.

In November, 1896, he purchased additional lum­ber, feed and merchandise for use on claim, and the same Fall, built a large floating dock 33x60 feet, cleared land, cut piles for dock and float and built bunk-houses.

All these improvements, expenditures and busi­ness enterprises were carried on and completed months before any of the protestants ever saw or placed foot upon this tract, it appearing from all the testimony that it was not until the last of July or the 1st of August, 1897, that protestants and hundreds of others swooped down upon this claim, while on their way to the Klondike gold fields, dis­covered only a few months before.

In June, 1896, Moore having procured loans of considerable amounts, was enabled to push forward his business enterprises very rapidly, and on Sep­tember 16, 1897, when he filed his application for patent, he had added costly improvements to those already mentioned, consisting of a large saw mill, a large wharf and approaches and a number of ad­ditional buildings made necessary for use of his employees and other business necessities.

We incorporate a list of such improvements as


fully described by Moore in his final proof, comple­ted and used by him in Trade and Manufacturing as follows:

Log cabin built in 1888 with addition, con­sisting of a three-story frame building used as dwelling; a story-and-a-half bunk-house; a garden of five acres, fenced in and used for raising vegetables; a log stable, a large frame stable; a one-and-a-half story frame residence used by deponent's father; a large two-story frame boarding house used by claimant's saw­mill employees: two small log cabins used for like purposes, frame building with stock of general merchandise used in claimant's business of Trade and Manufacture; two good wells for use of premises; fencing around improved por­tions of the claim; eight acres cleared in con­nection with boarding house and residence of claimant's father; a twelve foot wagon road from deep water across the one hundred and sixty acres and up the valley of the Skagway river four-and-a-half miles: use of premises for grazing and stock raising, claimant having thereon six cows, a number of goats, pigs, poultry and eleven head of work horses; a saw mill having capacity of fifteen thousand feet of lumber per day, costing several thousand dollars, the entire improvements at time first affidavit was made, September 21, '97, amount­ing to, approximately $28,545.

The foregoing improvements were made prior to Moore's application for patent filed September 10, 1897.

On February 12, 1898, when this hearing took place additional improvements had been made by


Moore which he adds to the former list, as found in his final proof affidavit, which see.

Those additional improvements were as follows:

Two additions to claimant's dwelling, one frame kitchen 14x10 and one frame shed 15x12; a large two-story frame building for use as hotel and bank; two foundations for additional buildings in course of construction; two stock pens and large frame stable with tent roof; a story-and-a-half stable 40x14 used for dairy purposes; two small warehouses with tent roofs; one log building nearly completed; a one-story portable frame building forcibly taken posses­sion of by protestants and jumpers.

That the value of all of said improvements on February 12, 1898, amounted to 631,000.

Additional to the foregoing, claimant erected a wharf, commencing on the water-front of said tract, running thence out to deep water, which is being extended and improved, a warehouse being placed thereon, at which wharf sea-going vessels were then making daily landing deliver­ing freight and passengers. The cost of wharf, about $25,000.

On cross-examination of Moore it was developed that the yearly amount of business transacted by him amounted to $50,000 a year. That sawmill property, wharf property and all other improvements belong to him individually, and that no one else had any interest in the buildings, constructions, or lands in connection, therewith, but admitted that the Alaskan Territories Trading Company, a West Vir­ginia Business and Trading Corporation doing business in Alaskan waters, was interested with him in the profits of the saw mill and wharf, said Com-


pany having furnished him considerable money in July, 1890, and afterwards to build up and develop his present business. We will call the Commission­er's attention to the contract between Moore and Billinghurst, the agent and trustee for this Com­pany, when we come to discuss the objections raised by the protest, simply saying here that said con­tract purporting to secure and indemnify said Com­pany through its agent for moneys advanced to Moore in the development of this claim, is expressly sanctioned and authorized by the statute laws of the United States to which we will call particular attention, hereafter in this brief.

But in this place we ask careful scrutiny of Moore's cross-examination by protestant and all other testimony in the case bearing on protestant's chief objection, viz., that Moore had conveyed an interest to the Company named, in either the land churned by Moore, or improvements erected thereon. Moore swears in his examination, and no one con­tradicts, that his ownership in both was and is ex­clusive.

On cross-examination, Moore swears in February, 1S08, his business was averaging $6,500 a month. That his improvements and business operations cov­ered from sixty to seventy-five acres of tract, but that protestants, and town jumpers represented by them, had taken forcible possession of all except about seven or eight acres, not even sparing some of his buildings which are now held and used by certain of these protestants without a shadow of right or justice.



Garside's Testimony.—
Charles W. Garside, U.S. Deputy Surveyor swears that he made the official survey of Moore's claim July 18-24, 1896, by order of Surveyor General, afterwards approved by Sur­veyor General and Commissioner Hermann of the General Land Office.

When making this survey, he found Moore the sole inhabitant of the tract, living in his one-and-a-half-story log house. Moore was at that time building his wharf by putting in abutments and cribs below the high water line; had eight acres of clearing, five-eights of a mile barbed-wire fence a hundred feet back along the water front, brush stable and pack-trail. Moore had provision and merchandise in his house, supplies from which the witness purchased while doing his work as surveyor. He estimates Moore's improvements in July, 1890, at $750. No other person than Moore and his fam­ily were on or about the claim except hired men working on the claim for Moore.

This undisputed condition of the claim, both as to possession and improvements as they existed in July, 1896, when Moore had his survey made, cannot be doubted or gainsaid.

From this date, it is undisputed also, that Moore began to expend large sums of money in the pur­chase of supplies and merchandise to be used in his business and to build and extend his wharf, saw mill and other improvements amounting to thou­sands of dollars, before the Summer of '97, when protestants first began to arrive on the claim.

We mention this progress by Moore, in order to call the Commissioner's attention to the topograph-


ical map filed by Garside in connection with his final proof testimony, showing the growth and ex­tent of Moore's improvements from the time witness made his first survey in '96, to January, '98, a month before the hearing, when the map was made. It locates all of Moore's improvements made since the survey, in red ink. We call special attention to this map giving the topography of each improve­ment on the claim and character of same.

The improvements located and described on this map belonging to Moore are as follows :

“List of improvements (shown in red) made by applicant since date of official survey."

Steam saw mill, frame building, dimensions 34x35 with engine room 10x44 ft.
Store, one-story frame, 13x16 ft.

Log ware-house, one story, 17x20 ft.

Store-house, one-story portable frame. 13x10 ft.

Stable, one-story log house, 11x12 ft.

Blacksmith shop, one story, 11x12 ft.

Bunk and boarding house for wharf, one-and-a-half-story frame. 13x30 ft.

Bunk and boarding house for saw mill, two-story-frame, 25x33 ft.

Office, two-story frame, I6xl6 ft.

Stable, one-story frame, 17x82 ft.

Additions to original log house, two and one-half story frame, 10x10 ft. and 14x17 ft.

One cabin, 10x18 ft.

Barn, one story frame, 10x40 ft.

Two storage cabins with tent roof. 12x14 and 10x12 ft.


One stable with tent roof, 20x30 ft.

Two wells, 10 ft. deep.

Two small bridges, etc.

Fencing, 900 ft. around office building.

Fencing, 1,500 ft. around Ben Moore's residence.

Fencing, 555 ft. around corralls [sic].

Pack trail through site widened for wagon road.

Skid roads to timber from saw mill.

Wharf approach, partly within site and extend­ing out into deep water.

Approach, 14 ft. wide and 2,400ft. Long wharf, 250x125 ft.

Two ware-houses with tent roofs: 20x40 and 25x50 ft., on wharf.

One-story wooden frame, 20x35 ft. for bonded ware-house purposes.

Hotel, two-story frame, 47x50 ft., uncompleted.

Foundation, 32x130 ft.

Foundation, 35x40 ft.

On cross-examination by protestants Garside was questioned closely as to Moore's control and per­sonal management of operations on the claim, and whether other parties were not in control of the business.

On page 40 of cross-examination, first hearing, witness swears that Moore personally employed him to make the survey in 1890. Page 41, Moore employed him to make the additional survey at­tached to his affidavit. That Moore built the saw­mill, and while witness was in Moore's office mak­ing the last map, he heard Moore giving directions to the superintendent of the mill, a Mr. Hill, as to


its management. Page 42, says Moore had lots of goods in his store in August, 1897, and in February, 1898, when he was on the claim.

Estimates monthly business transacted by Moore at $5,000. Never heard Moore's ownership and proprietorship of business on claim questioned, but always heard and understood that he alone was owner and proprietor. Puts value of wharf at $25,000; other improvements at $20.000.

Malcolm Campbell’s Testimony
.—Resident of Juneau, Alaska. Was on Moore's claim in 1888 and saw him and his father there building a log house, about which they had a garden. Being a steamboat man in the Alaska trade, he stopped at this place a number of times, delivering material and merchan­dise for Moore who was always in possession of this tract, either by personal presence, or by his father or employees. In 1890 saw Moore and his men put­ting in foundations, clearing ground, and building cribs and wharf, at which time witness brought on his boat to Moore eight thousand feet of lumber. Saw Moore building the mill in 1897. Moore paid him for freight shipped to the place. In July, 1897, Moore was selling provisions and merchandise, car­rying a stock worth $800 or a $1,000. In Septem­ber, 1897, he saw Moore's saw-mill, wharf, dwelling house, stable, store and other buildings. Moore had three roads built across the claim and was hauling lumber for his mill. Closely observed Moore's business at wharf, mill and teaming and estimates it at $5,000 a month. Places the other improvements at about the same figure as Garside, aggregating $40,000 or $50,000.


Martin's Testimony.—
First knew Moore on the tract in 1887. Was also in the steamboat business carrying freight, and often stopped at Moore's claim to deliver same. From 1887 including 1800, he often stopped at this point and always found Moore, his father or employees in possession. Did not notice much improvement until the Spring of 1896, when he landed goods there for Moore, saw considerable timber cut, a float built and abut­ments for a wharf and cribbing. Also, saw land cleared. In July, 1807, he carried considerable freight to Moore, at which time Moore was running a store, working on his saw mill, teaming and running his wharf. Estimates business per month at $8,000. Moore had six teams at this time hauling lumber and doing other transfer business.

Summary of Final Proof.

From the foregoing testimony and proof Moore's priority dates from 1887 when he first went on the land to claim it. His claim was strengthened by the building of his house in 1888, and posting and filing his location notice that he intended to take the claim under the land laws as soon as they were extended to Alaska. His possession and use of the claim in succeeding years was always maintained by himself, his father or employees, until the Spring of 1890, when he moved upon the claim with his family and has lived there ever since.

In 1890, when survey was made in July of that year, his improvements amounted to $750; but from

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in Alaska and the regulations of the Department thereunder.

That section recognizes the "trustee," to be ap­pointed by the Secretary of the Interior, as the of­ficial representative of the government ns well as of the town site, in all matters relating to the acqui­sition and division of town lots among the town inhabitants.

The Departmental Regulations, paragraph 23, particularly define the only acts that can be per­formed by lot owners prior to the appointment of the trustee by the Secretary, viz:

Lot owners, "or their agent" may apply for a government survey of the town site according to the regulations expressly applying to private surveys in Alaska. That is, such lot occupants or their agent may apply to the Surveyor General of Alaska for an official survey, but in order to obtain same, have to show that the tract claimed is unoc­cupied and not in the adverse possession of others claiming rights prior to settlement of the town claimants.

From the foregoing statutory method of procedure it is seen that this so-called town of Skagway could not acquire a public survey under the law, since the public records in the Surveyor General's office showed that "U. S. Survey No. 13" had been made in behalf of Moore and approved by the Commis­sioner of the General Land Office March 25, 1897, more than three months before Bigelow, the first pack train settler came upon the tract.

As conclusive authority against Price being recognized as an agent for anybody under his

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appointment as such by the " Common Council", we only have to point to the fact that the only protestants recognized by the Act of 1891 are those mentioned in section 12 as "person, association, or corporation" who may have an adverse claim to land sought to be purchased for trade and manu­facture.

The "Common Council", or the community of lot claimants appointing it, are not such "person, association, or corporation" as has the right under section 12 to contend against the applicant for land thereunder.

In paragraph 22 of Department Regulations, pro­vision is made for such " person, association, cor­poration" described in said section 12 to protest against the application to purchase; but neither in the statute, nor in the regulations, nor under any other principle of land practice, is found any war­rant for the recognition of a so-called agent or attorney to protest in behalf of an unorganized, unauthorized, voluntary aggregation of persons acting under an alleged "Common Council" or other head, or designation, which persons are not known or mentioned in the protest proceedings as individual citizens having such individual rights of protest.

While it might be held, that Price individually has the right to protest, yet we insist, that he must stand alone in his own right as a land jumper and disseizor, and not the pretended representative of a business community.

That Price has a personal interest, both' as a lot claimant, as well as a real estate dealer and specu-

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lator in these town lots laid out on Moore's land, we do not dispute, but we do seriously object to his assuming to harass Moore as the so-called agent and attorney of an unknown and unidentified com­munity of land jumpers.

We move therefore to dismiss his protest as representing others than himself.

E. Valentine for himself and as attorney in fact for the Skagwav Wharf and Improvement Company, a partnership,and for nine other different individuals claiming parts of the Moore tract, filed protest against Moore's final proof.

At the hearing April 6, 1898, he disclaimed appearing for anyone else than the Wharf Company, J. M. Tanner, Thomas M. Stephens and Jacob Bloom. He appears to have abandoned his other protesting clients, possibly because at that time they had left the country. None of these protestants appeared at the hearing as witnesses or otherwise, it appearing that while they claim to be occupants of lots located on Moore's claim, they left it to Valentine their attorney in fact to testify as to their rights, as well as to represent them otherwise.

None of these claims or locations appear to have been made prior to the Fall of 1897.

The Skagway Wharf and Improvement Company claims a number of lots on Moore's water front adjacent to the approaches to said Company's wharf, which Valentine swears was built at an out­lay of thirty thousand dollars. The lots mentioned are used by somebody as a lumber yard, and Valen­tine's witness Reid swears these lots are needed for such lumber yard.

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At the end of the hearing, page 162, after protestants' witnesses Bigelow, Mrs. Leonard, Reid and Price had detailed numerous alleged admissions and acts of Moore, Billinghurst, Buchanan and other employees in charge of Moore's saw mill, wharf and other business, proving to their satisfac­tion that the Alaskan and Northwestern Territories Trading Company was a British concern trying to rob American citizens, Moore's counsel introduced the "Articles of Incorporation" of said Company showing that it was chartered for business and trade purposes in Alaskan waters and elsewhere by, and under the laws of, West Virginia, its chief office being in New York. (See claimant's Exhibit "D"). This charter is dated November 27, 1897.

Attached to said articles arid introduced as evi­dence by Moore, are the Certificate of the Secretary of said Company that a majority of the share hold­ers and directors are citizens of the United States, and that eighty per cent of the capital stock is held by American citizens, and not by aliens.

In connection with this proof, Moore and his wit­ness Cole who had charge of his books and business accounts, testified that the contract with Billinghurst made in 1896 was for the sole benefit of this West Virginia Company, from which he had bor­rowed large sums of money for use in his various lines of business, and that said Company was inter­ested with him, both in the saw mill and wharf busi­ness, but that he had never made any contract or agreement with said company, by which it was to have any interest whatever in the claim itself, but in the business carried on as above stated, only.

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The Town of Skagway

The Commissioner cannot escape considering the fact that in the summer and fall of 1897 and after­ward, a large number of people on their way to the interior of Alaska gold fields, overran Moore's claim, platted it into blocks and lots and streets, built houses upon lots either "located" by the builder, or purchased from someone who had located or took forcible possession against Moore's protest.

As Price testifies, lots sold for large price and much activity in the sale and transfer of Moore's property among these "squatters" was carried on by these people, Price himself being a member of a real estate firm engaged in buying, selling and exchanging these lots and blocks on Moore's claim for purpose of business and otherwise.

The town as surveyed, as we understand from the evidence, embraces six hundred and forty acres, but it seems the chief part of the town was built upon Moore's claim.

A candid view of the situation of these people who rushed upon a reserved tract of land, located, bought and sold parts of it without any authority of law, is bound to result in the conclusion that Moore's right must be preserved intact, regardless of these town lot claimants. This view is not only sustained by the just principle of Moore's prior rights which they had no right to invade, but from a purely business consideration, viz:

Those who were willing to buy property on this claim upon which to build their houses should have bought or otherwise secured same from Moore,

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which they could have no doubt done for much less than what they had to pay for these lots to specu­lators who had no interest in them.

As to those who were not willing to buy, but were bent on forcibly taking what did not belong to them, they should be remitted to the natural consequences of violating other people's rights. They are not to be considered in the proper adjustment of the law­ful claims of Moore.

This is not the first case coming before the Land Department where individuals in greater or less numbers, have forcibly entered upon the prior set­tlement claim, or entry of another and undertaken to secure private advantage for these individuals under the guise of a "town site settlement" osten­sibly in the public interest, but really for private gain.

In Keith vs. Townsite of Grand Junction (3 L. D. 431) and cases therein referred to, the Department has repeatedly held that a town site settlement upon, or claim to lands embraced within a prior pre­emption or homestead right cannot be recognized as valid, but, all such unlawful attempts to take property held by prior rights avail nothing; and it further emphasizes that the townsite act "cannot be construed to recognize the right of selection by individuals for their own use and benefit;" and that "it was manifestly not the object of the law to withhold from pre-emption such lands as individu­als might designate or select without authority, as the site for a probable or prospective city or town."

This case further holds:

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bear the consequences of an intentional infraction of other people's rights.

We insist therefore that no considerations of a legal or equitable nature can be indulged in their favor, as against the slightest claim that Moore may have in, or growing out of his claim to this tract.

We can confidently rely on a fair decision on Moore's rights by the Department.


Attorneys for Moore. Washington, D. C., April 17, 1899.


 (Map of the improvements made by Moore as they appeared in late July 1897. Dark line shows the extent of the 60 acres award to Bernard Moore in 1901. (Map by Catherine Holder Spude from a survey by C. Garside, dated 1898.)



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