interfering with the complainants in their use of said right of way in going from their said upland holdings to the deep waters of the sea, and from interfering with the complainants or in any manner retarding or delaying them in the use of their seines and nets in spreading the same in the approaches to the deep water, and in drawing them in upon the said tide flats or their upland grounds, and that they, and each of them, are further restrained and enjoined from in any manner interfering, hindering, or delaying the complainants in the use and occupation of the said right of way for the purpose of pursuing their business of fishing, and going to and from their upland holdings to the deep water of the sea, and in so drawing and setting their seines without let, hindrance, or delay from any one over said right of way to their said upland holdings.'

The ground upon which the court below gave its judgment may be seen from this excerpt from its opinion:

"We therefore have these propositions fairly well settled by the decisions: First, that the owner of the upland adjoining tide waters has littoral rights in the tide flats and the approaches to deep water that are valuable, and are property rights of which he cannot be deprived without due compensation; and, second, that he may construct wharves upon these tide flats running out from his uplands.and in front thereof to deep water, unless he shall so construct them as to make his wharves a nuisance or a purpresture, and thereby to impede navigation and the exercise of those rights enjoyed in common by all people. It is also settled by high authority that the right to take fish in the waters of the sea, and even along the tide flats, is one common to all of the citizens. In what, then, are the property rights of the littoral owner greater or more sacred than the common right of all citizens to take fish?

"The right of the littoral owner to construct a wharf in front of his land is unquestioned, and it is clear that by such construction he deprives all others from the right to fish or in any other way to occupy the ground covered by his wharf. It is a matter of common information that driving piles and the construction of wharves thereon make the taking of fish beneath the wharf practically impossible. Are we to say, then, that the littoral owner's right of way across the tide flats to deep water permits him to occupy the tide flats to deep water, permits him to occupy the tide flats with his wharf whereby the right of fishery is made impossible, and yet by cleaning the flats from débris and other material that gathers thereon, and making them practical for the use of his nets and for the purpose of drawing them across the same, and landing the fish upon the uplands, that he acquires no higher or better right in this behalf than that which inures in common to all citizens to fish and navigate the seas and rivers of our country? It is believed that the principle which gives the littoral owner a right of way and the right to construct a wharf in front of his upland across the tide flats to the deep water may be also as clearly and reasonably applied to a right of way that shall permit the littoral owner to exercise certain possessory rights as a right of way to the deep water of the sea over the tide flats, and that he may acquire certain possessory rights of such right of way by cleaning away the débris and material deposited thereon and making it a clear and proper roadway from the deep water to the upland over which he may pass and repass with his nets in the act of fishing, unobstructed and uninterrupted by the nets or other appliances of those who have a common right to take fish in the waters of the seas and rivers of Alaska.

"It appears from the testimony in this case that the nets commonly used by fishermen in taking salmon are from a hundred to several hundreds of fathoms in length. A reasonable right of way to deep water for the purpose of setting and bringing in these nets to the high land would certainly seem to be not less in width than the shortest nets used, viz., six hundred feet, and that in going over this right of way to and from the upland the complainants should not be impeded or obstructed by any others who may have the common

rights of fishery at this point. That the possessory rights exercised over the right of way by the littoral owners in cleaning the débris, stumps, timber, brush, and stones therefrom gives the complainants as clear a right thereto as if the same was covered by a wharf. It is not intended that this right of way shall give the complainants exclusive rights of fishery upon the tide flats, but it is intended that in pursuing their vocation in taking fish from the deep water or along the tide flats, in going and returning to and from their upland holdings, they shall be in no wise interfered with or hindered by other fishermen. It seems clear to the court that to this extent the property rights of the littoral owners must be protected by law, and that, as in the case of the construction of a wharf, any interference with the right of the littoral owner or any interference with the littoral rights to the upland owner may be prevented by the restraining order and injunction issuing from this court."

We are of the opinion that the decree may and should be affirmed without reference to the theory upon which the court below proceeded. It is well settled that the United States government, while it holds country as a territory, has all the powers of national and municipal government, and may, if it sees fit to do so, grant rights in or titles to the tide lands of such territory as well as the public lands above high-water mark. The case of Shiveley v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331, leaves nothing more to be said on that question.

When, in 1884, congress undertook to provide a civil government for Alaska, it made of the territory a land district, located a United States land office at Sitka; put in full force and effect therein "the laws of the United States relating to mineral claims and the rights incident thereto," with certain conditions not necessary to be mentioned, withholding therefrom the application of "the general land laws of the United States," and expressly declaring "that the Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them, but the terms under which such persons may acquire title to such lands is reserved for future legislation by congress." Section 8, Act May 17, 1884 (23 Stat. 24). There has been no "future legislation by congress' that applies to the present case, for this case involves no question of purchase or entry, and concerns only the right of occupancy and use of certain of the lands of the United States, including a small strip of tide land, as against a similarly asserted right on the part of third persons, which occupancy and use in no manner interferes with the right of navigation of the public waters. The prohibition contained in the act of 1884 against the disturbance of the use or possession of any Indian or other person of any land in Alaska claimed by them is sufficiently general and comprehensive to include tide lands as well as lands above high-water mark. Nor is it surprising that congress, in first dealing with the then sparsely settled country, was disposed to protect its few inhabitants in the possession of lands, of whatever character, by means of which they eked out their hard and precarious existence. The fact that at that time the Indians and other occupants of the country largely made their living by fishing was no doubt well. known to the legislative branch of the government, as well as the fact that that business, if conducted on any substantial scale, necessitated the use of parts of the tide flats in the putting out and hauling in of the

necessary seines. Congress saw proper to protect by its act of 1884 the possession and use by these Indians and other persons of any and all lands in Alaska against intrusion by third persons, and so far has never deemed it wise to otherwise provide. That legislation was sufficient authority, in our opinion, for the decree of the court below securing the complainants in the use and possession of land which the evidence shows and the court found was held and maintained at the time of their disturbance therein by the defendants, and for years theretofore had been so held and maintained.

The judgment is affirmed.

STEWART v. UNITED STATES.

(Circuit Court of Appeals, Eighth Circuit. November 3, 1902.)

No. 1,717.

1. CRIMINAL LAW-HABEAS CORPUS-JURISDICTION OF COURTS-REMOVAL OF PRISONER-SUFFICIENCY OF INDICTMENT.

Where a prisoner arrested under a warrant based on an indictment in a foreign district is committed for removal to the foreign district solely on the strength of the indictment, the circuit or district court of the district in which he is arrested has authority on habeas corpus to examine the indictment, and to release the prisoner in case it is fundamentally defective.

2 SAME-USING THE MAILS TO DEFRAUD-INDICTMENT.

An indictment under Rev. St. § 5480 [U. S. Comp. St. 1901, p. 3696], punishing the use of the mails with intent to defraud, must allege that defendants had devised a scheme to defraud, which was to be effected by opening or intending to open correspondence with some person by means of the use of the mails, or by inciting such person to open communication with defendants, or some of them, and that, in the execution of the scheme, defendants either placed a letter in a post office, or took one therefrom.

8. SAME.

Another requisite of such an indictment is that the fraudulent scheme must be described with sufficient certainty to inform defendants with reasonable certainty of the nature of the evidence to establish the scheme which will be adduced at the trial.

4 SAME.

An indictment under Rev. St. § 5480 [U. S. Comp. St. 1901, p. 3696], found in the district of Kansas, after alleging that defendants' fraudulent scheme was to be effected by inciting divers persons to open correspondence with them, averred that a third person named deposited in a post office in Kansas a letter addressed to one of the defendants at a city in Missouri, but without alleging that it was taken from the mails by the addressee or any of the other defendants. Held, that if the court could assume, in the absence of an express averment to that effect, that the letter was taken from the mails by the addressee or by the other defendants, it would appear that the offense was committed in Missouri.

5. SAME.

A count in an indictment under Rev. St. § 5480 [U. S. Comp. St. 1901, p. 3696], alleged that the fraudulent scheme devised by defendants was to induce, by the use of the mails, persons to come to a designated city in Missouri, in the expectation of there defrauding them by various artifices not then conceived. It showed that the mails were not the sole means defendants intended to employ to induce persons to come to such city. It also showed that the letter written by one of the defendants

to a third person, on which the count was founded, was deposited in the mail long after the person to whom the letter was addressed had been induced to go to the designated city by oral representations made to him by a party to the scheme, and had been induced to part with his money by the various fraudulent pretenses and artifices there resorted to. Held, that the indictment did not clearly show that the letter in question was deposited in the mail in execution of the alleged scheme to defraud, but rather disclosed that it was so deposited after the scheme so described had been executed. Held, further, that the indictment contained so many redundant and immaterial allegations as to render it almost unintelligible, and that it was so far lacking in certainty of averment that it ought to be quashed on a motion to that effect.

Appeal from the District Court of the United States for the Western District of Missouri.

This was a proceeding by habeas corpus. An indictment was returned against J. P. Stewart, the appellant, and against Robert Boatright, E. E. Ellis, L. B. Gillett, and G. O. Stansbury, on November 15, 1901, in the district court of the United States for the district of Kansas, Third division, charging them with an offense under section 5480 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 3696]. Stewart, the appellant, being a resident of the Western district of Missouri, a complaint was filed by A. S. Van Valkenburgh, assistant United States attorney for the Western district of Missouri, before John M. Nuckols, United States commissioner within and for said district. Such complaint was made pursuant to the provisions of section 1014 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 716]. A warrant was issued by the commissioner, under which Stewart was arrested and brought before him for a hearing, at which the commissioner held the defendant to bail in the sum of $2,000, to appear on the first day of the next term of the district court of the United States for the Third division of the district of Kansas. The defendant Stewart failed to give the required bond, whereupon the commissioner committed him to the custody of the marshal for the Western district of Missouri until a warrant of removal should be issued by the United States district judge for said Western district of Missouri pursuant to section 1014 of the Revised Statutes [U. S. Comp. St. 1901, p. 716]. The appellant then applied for a writ of habeas corpus to the district court of the United States for the Western district of Missouri, and such a writ having been issued, and a return made thereto by the marshal who held the accused in custody, the district court ordered the writ to be discharged, and remanded the appellant to the custody of the marshal. The present appeal is from such order.

The question considered below, and for determination by this court, is whether the indictment which was returned and filed in the United States district court for the district of Kansas stated an offense under section 5480 of the Revised Statutes [U. S. Comp. St. 1901, p. 3696]. As the indictment is quite lengthy and involved, and contains many immaterial allegations, the most material parts thereof, only, will be stated in hæc verba. Omitting the introductory part, the indictment charged that Stewart, Boatright, Gillett, and Stansbury "on or about the second day of August in the year 1901 at the Third division of the district of Kansas * having before that time knowingly, wrongfully and unlawfully devised a scheme and artifice to defraud one J. M. Davis, of Bourbon county, Kansas, and certain other persons whose names are to the grand jurors unknown of large sums of money, to wit: about $6,500, and other large sums of money from divers other persons, which said sums and the names of such other persons being to the grand jurors unknown and which said scheme and artifice to defraud was to be effected by opening and intending to open correspondence and communication with the said J. M. Davis and one Joseplı Cooke, both of Bourbon county, Kansas, and divers other persons whose names and addresses are to the grand jurors aforesaid unknown and by inciting and intending to incite and causing and intending to cause the said J. M. Davis and the said Joseph Cooke and divers other persons * * to open correspondence and communication with the said Robert Boatright, J. P. Stew

* ** *

art, E. E. Ellis, L. B. Gillett and G. O. Stansbury

and other persons

to the grand jurors unknown, by means of the post-office establishment of the United States which said use and misuse of the post-office establishment of the United States was a part of said scheme and artifice to defraud and which said scheme and artifice to defraud was and is in substance and effect as follows, to wit: that Webb City, Jasper county, Mo., is the headquarters for the defendants [above named] and a large number of other persons associated with said defendants, the names of such other persons being to the grand jurors aforesaid unknown, all of whom are associated together and have for a common purpose and design the promotion of pretended and fraudulent foot races, that among said defendants above named and their associates, with headquarters at Webb City, Mo., as aforesaid, there are a large number of persons who are known as professional foot racers, to wit: L. B. Gillett, G. O. Stansbury and others, the names of which said other professional foot racers being to the grand jurors aforesaid unknown, that it is the purpose and object of the said defendants above named 'together with the other persons associated with said defendants, by false, fictitious and fraudulent means and practices to induce divers and sundry persons throughout the United States of America and territories to visit Webb City, Jasper county, Mo., to wit, by opening and intending to [open] correspondence and communication with such divers and sundry persons and by inciting and causing such divers and sundry persons to open correspondence and communication with said defendants and their associates by means of the post-office establishment of the United States and otherwise and by inducing and procuring said defendants L. B. Gillett and G. O. Stansbury and others of the associates of said defendants to go to various places in the United States and territories and become acquainted with divers and sundry persons and by false and fraudulent statements and representations made to such persons induce and procure such divers and sundry persons to visit Webb City with

*

the end in view of causing such person so induced to visit Webb City, Mo., to wager and advance to be wagered large sums of money and other property on the result of pretended and fraudulent foot races between certain persons above mentioned, to the end that such persons so induced to visit Webb City, Mo., will wager and advance to be wagered their said money and property * upon the result of said pretended and fraudulent foot race, the result of which said races having already been prearranged and agreed upon between the said defendants and their associates aforesaid and by means of which said [prearranged] and agreement between said defendants and their associates aforesaid, then, there and thereby intending to defraud said divers and sundry persons whom they had theretofore induced to visit Webb City, Mo.; that the said defendants and their associates at all times represented themselves to be business men and merchants at Webb City, Mo., and men of reliability ✶ ✶ of good credit and of good standing in the community and honest in all [the] dealings, and able, willing and ready to meet any and all obligations incurred by them or any of them, when in truth and in fact the said defendants and their associates were associated together for the purpose and object of defrauding various persons whom they might induce or cause to visit Webb City

for the purpose aforesaid, and in truth and in fact it was not the intention of the said defendants nor any of their associates to deal honestly with any person so induced to visit Webb City, Mo., * and in truth and in fact the said defendants were not honest, respectable nor reliable men, nor were they men of good standing in the community in which they lived nor were they willing or ready to meet their business obligations, but in truth and in fact the said defendants and their associates were gamblers, confidence men and swindlers, as they the said * defendants then and there well knew." After alleging the scheme to defraud in the manner aforesaid, the pleader next alleged in great detail what was done in the execution of the scheme. These allegations may be stated, in substance, and with greater brevity than in the indictment, as follows: The defendant Gillett went to Bronson, Kan., where Davis resided. He there made the acquaintance of Davis, and told him that he (Gillett) was a professional foot racer; that he knew a man by the name of Ellis, at Webb City, Missouri, who would bet a