as those which are at times inadvertently done by just men and just governments.

The present case belongs to the latter class. By the too literal application of an almost obsolete principle of the common law, an act of gross injustice has been done to a very worthy man and to his Indian converts, to whom the United States not only owed the duty of fair dealing but to whom it stood, in a qualified sense, in a fiduciary relation. These Indians were the wards of the Government, and the disparity between the power of the United States and the weakness of this little band of Christian Indians called for a course of action which was not only technically lawful but, in the fullest sense, equitable.

It would be difficult for any fair-minded man, who will lay aside the barren technicalities of the law, to justify in the forum of conscience the act of the Interior Department in forcibly depriving a missionary and his converts of valuable property, to the construction of which the Government had not contributed a penny and which was, in all respects, the lawful property of those who had expended their money and labor upon it. The great commandment, "Thou shalt not steal", the most famous moral statement of property rights, fairly implies that that which a man has constructed with his own money and labor is his property and remains his property until he in some way voluntarily divests himself of it.

Nor is this general principle necessarily affected by the question that he may temporarily have superimposed his property upon another man's property, when he has done so with the consent of the latter. If I take a camping outfit tomorrow and disappear in the wilderness and pitch my tent for the night, no one would question that on the morning I could strike camp and remove my tent, and this would be so if, with the permission of the owner of the woods, I constructed a log hut and lived there for many months. If the logs were mine, I could still remove them. If the owner of land invites me to occupy his land and to build valuable improvements, with the understanding that I must vacate the land whenever so required, the presumption would be, in the absence of an express or implied agreement to the contrary, that that which I have temporarily placed upon the land in the nature of improvements remains my property and is

removable as such.

I fully recognize that in a primitive state of society, when the harshness of the feudal system prevailed and the masses of men who tilled the soil were little better than serfs, that a different rule for a time prevailed. The feudal system, with its purpose to strengthen the power of the feudal lord and to reduce the toilers to a state of vassalage, undoubtedly did make the law that whatever is attached to the soil is ceded to the soil, but this harsh rule has long since yielded to more enlightened principles of liberty and to the inexorable demands of social progress and justice.

To find the old principle of the feudal law applied in all its rigor, one would need to go back to the dark ages of English society, prior to Edward. Since then, as the farmer-vassal gradually rose to the stature of a freeman, the law has been steadily relaxed. Centuries ago it was recognized that to apply the law in all its literalness would immeasurably retard commerce, for there would be little

temptation to the tradesman or the small manufacturer to develop his trade by suitable workshops, if his workshop, when erected on leased land, became the property of the landlord. Thus came the great exception in behalf of trade fixtures, and as there was no just distinction in morals between improvements erected for the purposes of manufacture and those for agriculture, gradually the rule was relaxed in respect to agriculture. As Lord Kenyon said in the case of Penton v. Robart (2 East, 91):

The old cases upon this subject leant to consider as realty whatever was annexed to the freehold by the occupier; but in modern times the leaning has always been the other way-in favor of the tenant, in support of the interests of trade, which is become the pillar of the state. What tenant will lay out his money in costly improvements of the land if he must leave everything behind him which can be said to be annexed to it? Shall it be said that the great gardners and nurserymen in the neighborhood of this metropolis, who spend thousands of pounds in the erection of greenhouses and hothouses, etc., are obliged to leave all these things upon the premises, when it is notorious that they are even permitted to remove trees, or such as are likely to become such, by the thousand, in the necessary course of their trade? If it were outherwise, the very object of their holding would be defeated.

It cannot be said that the relaxation of the ancient rule, which has been invoked by Mr. Cragin's memorandum to justify the seizure of the improvements in question, was restricted to the interests of trade or commerce, for in the nice adjustment of the relations of landlord and tenant, many ornamental fixtures, such as hangings, looking-glasses, pictures, and other household furniture, although temporarily attached to the landlord's building, were, nevertheless, removable by the tenant.

The more enlightened rule of the present time seems to be that the question, in the last analysis, is one of intention. If there is no express agreement on the subject, then the courts of justice must determine what was the implied understanding with respect to the matter and, in determining such understanding, any court will be strongly influenced by the inherent justice of the matter. In other words, the court will assume that the purpose of the parties was that of fair dealing and whatever fair dealing requires will be regarded as their implied contract. Law is the reasoned adjustment of human relations. Its sanction and dignity are in its reasonableness. Its high purpose is to promote fair dealing between man and man and, while the liberty of contract may enable a man to exact something which, in the absence of agreement would seem unfair, yet, where there is no such contract, a court of justice is able to do equity between the parties, by the reasonable assumption that such equity was the intention of the parties.

This consideration has controlled the law of fixtures as it has been developed from feudal days. Today the primary test is the intention of the parties. When not expressed by their own contract, it can be implied from the nature of the occupancy, the character of the article annexed, the mode of annexation, the value of the article as bearing upon the probability of abandonment and, above all, the justice of the question as measured by the ordinary rules of fair dealing as between man and man.

The Supreme Court of the United States has recognized that the pivotal question is always one of intention and, in ascertaining this intention, it has laid especial stress upon the length of the permitted

Occupancy. A leasehold for a hundred years may well justify a resumption that the improvements were to remain the property of he landlord at the end of the lease and, as such, to be a part of the ental value. A lease for a month reasonably suggests the opposite nference. At the present time in the city of Philadelphia, where in international exposition is being held for the period of 6 months, many concessionaries have been given the right to erect a building for the purposes of the exposition. Assuming the absence of any special agreement as to property in the buildings upon the conclusion of the leases, no one would assume that these concessionaries could not, at the end of the exposition, remove valuable improvements annexed to the soil, which may well be far more valuable than the land upon which they are built. In the illustration cited, the land is of comparatively little value. A year ago it was little more than a swampy morass. Upon portions of this land buildings have been erected, some of which have cost more than a million dollars. It is altogether likely that this is at least tenfold as great as the value of the land upon which they are erected. Even if there were no express agreement, would any court of justice be so blind as to conclude that these valuable buildings, because of their temporary connection with the soil, became the property of the owner of the soil? This consideration of the time and nature of the occupancy has been strongly confirmed by the Supreme Court in the case of Wiggins Ferry Co. v. Ohio & M. Ry. Co. (142 U. S. 396), where the Court said:

As between landlord and tenant, or one in temporary possession of lands under any agreement whatever for the use of the same, the law is extremely indulgent to the latter with respect to the fixtures annexed for a purpose connected with such temporary possession. It is incredible that it could have been the intention of the parties that the rails and switches laid upon this ground by the railroad company should become the property of the landlord, when, by the terms of the contract, the ferry company had the right to put an end to it at any time upon 6 months' notice.

The application of this case to the question submitted to me is obvious. If an occupancy of only 6 months creates a presumption that the occupier did not intend to donate his improvements to the owner of the soil, what shall be said of an occupancy of land which was purely permissive and liable to be terminated without notice at any time If it be a question of intention, then two questions may be pertinently asked:

First. If, when Duncan and his converts at great expense purchased materials and with equal labor of brain and hand erected these valuable improvements, someone had said to them, "If the Government tomorrow reoccupies the land, is it your intention that all these valuable improvements shall belong to the Government?" can there be any doubt as to the nature of the answer? It is possible that the question never occurred to them, for the possibility of such injustice was to them probably unthinkable.

Second. With equal force it can be suggested that if, when the act of March 3, 1891, was under consideration by Congress, some Senator had asked the question whether, if the Government, under its reserved right to repossess itself of the land, exercised such right, would the improvements which these industrious Indians and their faithful leader made become the property of the Government with

out compensation, can it be doubted that Congress would have indignantly disclaimed any such purpose to appropriate other people's property, especially in view of the basic principle of our Government, as written into the Constitution, that private property shall not "be taken for public use without just compensation"? Moreover, the philanthropic purpose of these improvements justifies a belief that a noble charity should not be penalized by confiscation.

If, therefore, the intention of the parties must prevail, it would impute a spirit of gross injustice to Congress and illimitable folly to the Duncan mission to suppose that, if the tenancy at will were suddenly terminated, the Government would not only get its own, but also the valuable property of its licensee.

The conclusion is, however, strengthened by the fact that in this case we are not dealing with the relation of landlord and tenant. As between landlord and tenant, the question as to the ownership on the termination of the lease of improvements to the freehold is more difficult, for in such cases it may well be that the landlord, in fixing the amount of rent, took into consideration the added value to his land of such improvements. As previously stated, the old and harsh rule of the common law as to fixtures concerned largely the question of landlord and tenant and was influenced to a great extent by the feudal relation between the two.

We are, however, in this case dealing with a licensee and, it may be added, with a licensed occupation which is sui generis. The Annette Islands were at the moment of no use to the Government. To populate and occupy them and to turn a wilderness into a fair rose garden of civilized life was of as much benefit to the Government as to the Indians, and certainly does not suggest an implication that this Christian mission was to pay for this use of the land by the erection of improvements which at any moment could become the property of the Government.

The Cragin brief recognizes the clear distinction between a tenant and a licensee. As the source of its law was a textbook (Bronson on Fixtures), the writer of the Cragin brief could not escape that portion of the textbook which demonstrated the superior right of the licensee, who was not a tenant, to remove improvements upon the termination of the license. The Cragin brief admits that the question is not only one of understanding between licensor and licensee but that it may turn, in the absence of any such understanding, upon the intention of the licensee. Did he intend to donate the improvements to his licensor? Did he intend to plow and sow with the full understanding that the owner at any time could take the harvest?

The Cragin brief argues that Duncan and his Indian converts never intended that the property, which they had erected with the sweat of their brow, should belong to them, if the Government ordered them at any moment to vacate. This portion of the brief is so tortuous and disingenuous and its reasoning is so strained as to justify the doubt whether it was written in good faith. In this respect it is a monument of special pleading, and the inference of prejudice is not unreasonable.

After reluctantly conceding, if Duncan and his Indian converts intended to retain the ownership of their own property, if they were again required to move on, that the improvements would be their property, he concludes that, with a few exceptions, they intended to

donate this property to the Government at any time that the Government saw fit to take it over. To believe this is to believe that the moon is made of green cheese. It assumes that sane men would plow and sow for others to reap. One need only ask what the thought of Duncan and his faithful Indians would have been, if they had been asked when, with the sweat of their brow, they were making these improvements in the wilderness, whether it was their intention to give them to the Government at any time that the Government saw fit to ask for their possession. Can it be questioned that their answer would have been that when Congress gave them the right to use and occupy the property, that they assumed that right would be continuous, but that if the Government should, in some unforeseen contingency, terminate the right, that common justice would impel the Government to give them adequate notice to vacate the islands and to permit them to take away the product of their own toil to the extent that it was removable. Undoubtedly they could not demand that the Government purchase their improvements, and, if they could not be removed, then the intention to leave them in the possession of the Government would arise from the necessities of the situation.

If, however, they could be removed, the Government could not take possession of the improvements for its use without just compensation. It is no answer to this reasonable theory, which is so consistent with ordinary human experience and fair dealing, to say that the Government intended, having taken possession of these improvements, to use them for the Indians in its own way. If I have a right to remove fixtures, my right is not destroyed by the declaration of the owner of the soil that when he seizes the fixtures he intends to use them for my benefit. The fixtures and improvements are mine, and, if they are mine, they are for me to use as I think proper, and if I no longer have a right to maintain them upon the soil of another, I at least have the right to remove them when continued occupancy is denied me.

This would be so in the ordinary relations of life, where men are dealing at arm's length, but, as I have said, we are in this case dealing with a relation that is sui generis. In this case these Indians were the wards of the Nation. The relation of the Government to them was of a fiduciary character, in the highest and noblest sense of the word. To them was due that especial solicitude that the strong and powerful should always have for the weak and helpless. Undoubtedly, the same Congress that gave to the Indians the occupancy and use of these islands could take them away, however great the hardship, but that abundant good faith, which the Government owes to these wards of the Nation, requires that, in taking from them the right of continued occupancy, it should, to the extent of its ability, mitigate the hardship, and if this required nothing more, it at least required that the Government should take back only its former property, the land, and not the property which the industry and thrift of the Indians and their leader had brought into being. Your brief so admirably covers these special features of the case that it seems unnecessary to repeat the many reasons for the conclusions at which you have arrived and in which I concur.

The question of intention must also be considered in the light of the historic policy of our Government with reference to the In