Arness v. Petersburg Packing Co.

• Decision Date: 07 July 1919
• Docket Number: 3278.
• Citation: 260 F. 710
• Parties: ARNESS et al. v. PETERSBURG PACKING CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

260 F. 710

ARNESS et al. v. PETERSBURG PACKING CO. et al.

No. 3278.

United States Court of Appeals, Ninth Circuit.

July 7, 1919

Rehearing Denied October 14, 1919.

John Rustgard, of Juneau, Alaska, for plaintiffs in error.

Hellenthal & Hellenthal and J. A. Hellenthal, all of Juneau, Alaska, for defendants in error.

Before GILBERT, MORROW, and HUNT, Circuit Judges.

GILBERT Circuit Judge.

In an action of ejectment in the court below, the defendants in error recovered a judgment for the possession of a small parcel of tideland adjacent to a steamship dock and a cannery which they occupied and operated; they having alleged in their complaint that they had used and occupied the parcel in controversy, had cleared it of boulders and debris, and made it fit for the purpose of storing logs, pilings, pile drivers, and water craft thereon and had maintained cradles thereon to repair their boats and scows, and that at midnight December 7, 1915, without their consent, the plaintiffs in error entered upon said premises and removed therefrom the said cradles, pilings, logs, etc and have since occupied and remained on the premises. The assignments of error present two principal questions: First whether ejectment is the proper remedy of the defendants in error; and, second, whether ejectment will lie to recover tideland in the territory of Alaska.

The action was brought, not as contended by the defendants in error, to recover an incorporeal hereditament, but to recover the actual physical possession of a parcel of tideland, and the court below aptly and appropriately instructed the jury concerning the nature of the possession which was necessary to support the action. It is not necessary under the law of Alaska that the plaintiff in ejectment shall have title in fee, or for life, or for a term of years, or color of title. The ejectment statutes of Oregon are adopted for Alaska. In Wilson v. Fine (D.C.) 38 F. 789, Judge Deady held that prior possession of real property is a sufficient legal estate therein to enable a party to maintain ejectment for the recovery of the possession of the same from an intruder. In Campbell v. Silver Bow Basin Min. Co., 48 F. 47 1 C.C.A. 155, this court held that in Alaska, by the law of Oregon, which was there in force, a person in possession might maintain an action of ejectment to recover possession of real property from which he had been ousted by a mere intruder. In Sommer v. Compton, 52 Or. 173, 96 P. 124, 1065, it was held that prior possession of land for any length of time is prima facie evidence of title, and will authorize a recovery of possession against a mere volunteer, or one having no other rights than those of a trespasser. The same was held in Gallagher v. Kelliher, 58 Or. 557, 114 P. 943, 115 P. 596. And, again, in Kingsley v. United Rys. Co., 66 Or. 50, 133 P. 785, the court said:

'Naked possession vests a sufficient right of property in the person who has such possession as to permit him to hold the land against all the world except the true owner. Consequently, actual occupation or possession of real property is in its essential nature of an estate or right therein. Wilson v. Fine (D.C.) 38 F. 789.'

And the court said that in Oregon the rule has become fixed that possession is a sufficient interest in land to enable one ousted therefrom to eject a trespasser or one unable to show a better title.

The second question is whether ejectment lies to recover possession of public land where the plaintiff does not justify his possession by authority from the United States. The plaintiffs in error rely upon Burgess v. Gray et al., 16 How. 48, 14 L.Ed. 839, as sustaining the proposition that the mere possession of public land, without title, will not enable the possessor to maintain ejectment against any one who enters upon it. That case, however, does not so hold. The plaintiff in that case brought a suit to recover possession of land and to compel the defendants to abandon 'their illegal claims.' As the court said, it was in form a suit to obtain an injunction, to quiet the plaintiff in his possession, and to compel the adverse party to deliver up to be canceled evidences of title, 'improperly and illegally obtained.' The court also said.

'The defendants are in possession, claiming title from the United States, and with evidences of title derived from the proper officers of the government. It is not necessary to inquire whether the title claimed by them is valid or not. The petitioner, as appears by the case he presents in his petition, has no title of any description derived from the constituted authorities of the United States, of which any court of justice can take cognizance. And the mere possession of public land, without title, will not enable the party to maintain a suit against any one who enters on it; and more especially he cannot maintain it against persons holding possession under title derived from the proper officers of the government.'

The remarks of the court were made with reference to a 'suit' brought not only to obtain possession but to cancel adverse claims, and the court recognized the settled rule that equity will not take jurisdiction for the sole purpose of restoring possession, and that, as the subject of jurisdiction in equity, the recovery of possession must be coupled with a demand for other relief. The recovery of possession alone is the ground and object of ejectment, and no case is found which holds that the mere possession of public land, without title, will not enable one to maintain ejectment against a trespasser who enters upon it. The contrary has been held in numerous decisions. In Coryell v. Cain, 16 Cal. 567, 573, Judge Field said:

'Actions for the possession of mining claims, water privileges, and the like, situated upon the public lands, are matters of daily occurrence, and, if the proof of the paramount title of the government would operate to defeat them, confusion and ruin would be the result. * * * And with the public lands which are not mineral lands, the title, as between citizens of the state, where neither connects himself with the government, is considered as vested in the first possessor, and to proceed from him. This possession must be actual and not constructive.'

In Hart v. Cox, 171 Cal. 364, 153 P. 391, in an action of ejectment involving a parcel of desert land of the United States, where neither party relied upon a paper title, it was held that prior actual possession is sufficient to support the action. In Hanson v. Stinehoff, 139 Cal. 169, 72 P. 913, an ejectment case, the court sustained as against a trespasser the right of possession of one who occupied land consisting of a portion of an island in a river and a dry river bed, the property of the state.

By the Act of May 17, 1884, c. 53, Sec. 8, 23 Stat. 26, Congress enacted that persons in Alaska 'shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them. ' That statute conferred upon persons in possession more than a mere pedis possessio. It conferred the right to convey the possessory right to another. Carroll v. Price (D.C.) 81 F. 137; Martin v. Burford, 181 F. 922, 104 C.C.A. 360. The right of possession of the defendants in error does not depend upon that statute, they having acquired possession at a subsequent date. But the courts of Alaska have held that those who entered into possession of tideland subsequent to 1884 may, in any case in which public rights are not involved, maintain possession against an intruder. In Copper River Lumber Co. v. Humphreys, 2 Alaska, 39, Judge Wickersham held that one who actually occupied a small tract of public land for purposes of manufacturing and sawing lumber was entitled to the exclusive possession thereof, under section 12 of the Act of Congress of March 3, 1891, c. 561, 26 Stat. 1100 (Comp. St. Sec. 5080). The court said:

'There is some contention by the defendant that the land which he claims is above the ordinary high tide. It would make no difference, however, under the circumstances in this case, whether it was above or below ordinary high tide. If it is above high tide, the facts bring it fairly within the statute in relation to the disposal of lands for trade and manufactures, and, if it is below, the circumstances bring it clearly within the rule that the owner of uplands cannot be deprived of the use of the tideland in front of his upland holdings by a mere trespasser, and that he may construct wharves, mills, and approaches to the sea from his upland, and will be protected in such right by the injunctive process of the court.'

In the case at bar the defendants in error own and operate a machine shop and a store on the uplands adjacent to the property in controversy, and at one side and entirely upon the tidelands they have constructed and maintained a cannery, warehouse, and a platform, all of which have been constructed since the year 1902. The plaintiffs in error come into this court assenting to that portion of the charge to the jury in which it was said that--

'While no one but the United States has or can have any strictly legal title to the tidelands in Alaska, yet it is the policy of our government to allow any one to occupy such lands, to possess them, to use them, to claim them as his own, for any useful purposes which do not interfere with navigation or the rights of fishery. * * * If a person is in possession of unappropriated public land of the United States, he has a right to such possession as against any other person who cannot show any better right.'

And they took no exception to the court's instruction that--

'There is no evidence in this case that the occupation of the tideland in question at all interferes with the rights...