Valdez daily prospector., 1915-12-06

the same, the nOrtherly or westerly boundary there of extended to a line about midway of what was then call ed Reservation Avenue, now called Alaska Avenue;. all to the west or north of that fine was covered by and occupied as military canton ment or reservation. Military occu- pancy thereof, except a small portion reserved for public purposes was withdrawn about July, 1902, and the residents of Valdez located, plated and settled upon the same, laying out streets by common consent.
 February 2, 1914, pursuant to an Act of Congress giving power so to do, the corporate limits of said town were by order of this court enlarged and extended over said former reser- vation; the waterfront limit or boun- dary being established as before, to- wit, along the meandered line of mean high tide.
 The materiality of this is shown by reason of the fact that the approach of the defendants dock as originally constructed and as at present main tained, began at point about $50 feet on the upper or landward side of said mean high tide line, and on said Alaska avenue, at a time when said avenue or street was only twen- ty-five feet in width, and all that DOT tion of said approach on the north erly or westerly side, or Reservation side, or said street or avenue, would not be in or in front of any portion of the Town of Valdez in 1902 when said dock was so constructed. This situation is clearly shown on defen- dant's map, Exhibit No. 5.
 Up to the year 1902, passengers to be landed at Valdez from ocean steamers coming from Seattle and other points, were taken on row boats from the steamers, rowed as far towards town as the condition of the tide would permit, and then re- quired to walk over the mud flat to dry land. Freight was placed in ,cows which were hauled to points on or over said mudflat where the receding tide would leave them, and teams would drive down and unload SO long as the condition of the tide would permit. The tides at this port vary in height from ten to fourteen feet. The population of Valdez fluc- tuates, being from 1000 to 1900 peo- pie.
 Early in 1902 the defendant dock company, or it's predecessors in inter- est, constructed the dock which is the subject of this controversy, although it can hardly be called the same dock, so much has it been repaired and added to; the long approach, over 1900 feet in length, however, cross ing said mudfat is practically in the same position as constructed in 1902, except that since disastrous fire oc- curing in Valdez on July IS, 1915, about five hundred feet of the ap- proach nearest to town which was burned has been reconstructed, at a slightly different angle, from the foot of Alaska avenue (formerly called Reservation Avenue). No franchise was ever asked for or granted by the Common council of the Town of Val dez to construct, operate or main tain this wharf, and the dock con- pany has at all times charged wharf, age for freight handled or stored on said dock.
 The defendant is a corporation or ganized under the laws of Alaska Section 798, Compiled Laws of Alas ka, provides for the formation of pri- vate corporations for the following purposes, among others:
 Subdivision 4. To construct
 and operate smelters, electric and
 other power and lighting plants,
 docks, wharves, elevators, ware
 houses and hotels in Alaska"
 Section 2569, Compiled Laws of Alaska, provides for an annual li- cense of ten cents per ton on freight handled or stored on public docks, wharves and storehouses
 Section 63O, Compiled Laws of Alaska, provides that all license mon eys collected by the clerk of the dis trict court (license moneys provided for in said Section 2569), within the limits of any incorporated town, shall De paid over to the treasurer of such own to be used for school and muni- aipal purposes within the town.
 The defendant has presumably paid this license tax for many years; which according to the testimony would amount in the last year to more than four hundred dollars.
 Some time in 1903 or 1904 the Common Council of Valdez granted a franchise to Geiger and McPhee to construct, maintain and, operate wharf beginning at the foot of Key stone avenue in said town. Said wharf was thereupon constructed and main- tained and operated, and wharfage charged for it's use, until the first. day of August, 1910, when the Town of Valdez, by and through it's regularly elected and acting authorities, pur- chased said wharf and has ever since owned and operated the same.
 On the 18th day of August, 1915, the Common Council of the Town of Valdez passed Ordinance No. 90, which provided for harbor limits for. said town, fixing rates of wharfage to be charged on the wharf owned by the town, and by Section 4 thereof, prohibiting any person or corporation from charging or collecting wharfage on freight landed within said harbor limits, which said limits cover the space occupied by the dock of the de-