Bolshanin v. Zlobin, 5648-A.

• Court: United States District Courts. 9th Circuit. District of Alaska
• Writing for the Court: Howard D. Stabler, of Juneau, Alaska, for defendant John Zlobin
• Citation: 76 F. Supp. 281
• Parties: BOLSHANIN et al. v. ZLOBIN et al.
• Docket Number: No. 5648-A.,5648-A.
• Decision Date: 27 March 1948

76 F. Supp. 281

BOLSHANIN et al.
v.
ZLOBIN et al.

No. 5648-A.

District Court, Alaska. First Div., Juneau.

March 27, 1948.

76 F. Supp. 282

R. E. Robertson and M. G. Monagle, both of Juneau, Alaska, for plaintiffs.

Howard D. Stabler, of Juneau, Alaska, for defendant John Zlobin.

FOLTA, District Judge.

This is a representative action brought by plaintiffs, as members, against Zlobin, as priest of what is commonly referred to as the Russian Church at Sitka, and Pashkofsky, as Metropolitan Theophilus of the Greco-Russian Church in America, seeking to recover possession of real property, consisting of land and church buildings erected thereon.

The complaint alleges that plaintiffs are resident members and, except the plaintiff Panamarkoff, also trustees of the church, and that they are also the directors of the Greek Orthodox Church Corporation of Sitka, organized by the church members in 1935, and that as members they and those whom they represent have succeeded to all the rights of the members of the church at the time of the cession of Alaska to the United States in 1867; that by virtue of the Treaty of Cession the members are the owners in fee simple and entitled to the possession of all the land described in the patent of July 27, 1914, a copy of which is attached to and made a part of the complaint, together with all the buildings erected thereon, and furnishings; that the title conveyed by the patent to the archbishop of

76 F. Supp. 283

the church is subject to the superior title of plaintiffs and members under the grant referred to, and that the members, including plaintiffs, are the beneficiaries of the trust created by the patent; that plaintiffs and members have been ousted from the possession of the property described, to their damage in the sum of $5,000

Defendants have demurred to the complaint on every ground enumerated in the Code, but lack of merit in some of these and the ruling of the Court on the principal objection, that the complaint fails to state a cause of action, render a consideration of the remaining grounds unnecessary.

Plaintiffs claim title under Article II of the Treaty of Cession, 15 Stat. 539, 541, which provides that:

"In the cession of territory and dominion made by the preceding article are included the right of property in all public lots and squares, vacant lands, and all public buildings, fortifications, barracks, and other edifices which are not private individual property. It is, however, understood and agreed, that the churches which have been built in the ceded territory by the Russian government, shall remain the property of such members of the Greek Oriental Church resident in the territory, as may choose to worship therein."

and they contend that this constitutes a grant to the members of the church to whose rights they have succeeded.

Defendants on the other hand claim title under the patent of July 27, 1914, issued to the archbishop of the church, "his successors and assigns, forever, trustee", and contend that at most the treaty provision quoted recognized the ownership of the churches only and a mere possessory right in the land occupied thereby, and that, therefore, legal title in plaintiffs, a prerequisite to an action of this kind, is lacking.

Plaintiffs' answer to this is that the patent is a nullity, not only because of the grant to the members aforesaid, but also because neither the act of June 6, 1900, 31 Stat. 330, 48 U.S.C.A. § 356, nor any other act authorized the issuance of the patent on which defendants rely. However, plaintiffs further assert that, if they are in error as to this, the patent merely created a dry or passive trust under which the patentee was a mere depositary of the naked legal title, with no duty to perform, in consequence of which the legal title was transferred to plaintiffs upon the issuance of the patent.

The question which emerges from these and subsidiary contentions is whether the legal title is in plaintiffs either under the Treaty of Cession or by virtue of the execution of the trust created by the patent, or in defendants under the patent.

It is admitted that the church involved in this controversy is, regardless of the many names by which it has been known, as set forth in the complaint, the Greek Oriental Church referred to in Article II of the Treaty of Cession, supra.

Contemporaneously with the transfer of Alaska to the United States, inventories were prepared by the commissioners appointed for that purpose, in which the properties to be transferred to the United States and those to be retained by private individuals were separately listed. The latter class was further divided into (1) property of the Greco-Russian Church, (2) property held under fee simple title, with the names of the owners, and (3) property held by possessory rights only. These inventories, designated B, C and D, respectively, together with a map of Sitka, upon which the properties referred to were shown and identified, were attached to and made a part of the protocol of transfer. Callsen v. Hope, D.C.Alaska, 75 F. 758, 762; Kinkead v. United States, (Alaska), 150 U.S. 483, 487, 489, 14 S.Ct. 172, 37 L.Ed. 1152. At the same time the commissioners issued certificates of title to the individuals who held by fee simple title. It is significant that the Greco-Russian Church was not listed in Inventory C, consisting of property held under a fee simple title, nor has such a certificate of title or any record of grant been pleaded.

In accordance with the Treaty the cession included all ungranted lots in Sitka. Manifestly, in the absence of a grant to the Greco-Russian Church these ungranted lots would include those on which the churches stood, and the Greco-Russian Church, as in the case of others who had no fee simple

76 F. Supp. 284

title, held by right of possession only. Haltern v. Emmons, D.C.Alaska, 46 F. 452, 454, 456, affirmed 159 U.S. 252, 15 S.Ct. 1039, 40 L.Ed. 142

Further support for this view may be found in the decisions of the Supreme Court upon similar questions arising under treaties with other nations ceding territory to the United States. At the outset it may be noted that private rights of property, whether absolute or merely equitable, are not affected by a change of sovereignty. Soulard v. United States, 4 Pet. 511, 7 L.Ed. 938. But the United States has always maintained that, although a title to land that was perfect and complete at the time of the cession would be fully protected by the treaty, yet, as to land to which the claim rested on an imperfect or incomplete title, the legal title remained in the United States until confirmed or patented. Ainsa v. New Mexico & A. R. Co., 175 U.S. 76, 20 S.Ct. 28, 44 L.Ed. 78. In dealing with such titles Congress has provided for their establishment by statute, in courts of justice, or in the Land Office or before boards. Menard's Heirs v. Massey, 8 How. 293, 12 L.Ed. 1085; United States v. Sandoval, 167 U.S. 278, 290, 17 S.Ct. 868, 42 L.Ed. 168. And the Supreme Court has consistently held that judicial tribunals in the ordinary administration of justice have no jurisdiction or power to deal with such claims, that power being reserved to the political department. West v. Cochran, 17 How. 414, 15 L.Ed. 110; United States v. City of Santa Fe, 165 U.S. 675, 714, 17 S.Ct. 472, 41 L.Ed. 874; Astiazaran v. Santa Rita Mining Co., 148 U.S. 80, 13 S.Ct. 457, 37 L.Ed. 376; United States v. King, 3 How. 773, 11 L.Ed. 824; United States v. Sandoval, supra, the Court saying, in the last case cited, that:

"The duty of protecting imperfect rights of property under treaties such as those by which territory was ceded by Mexico to the United States in 1848 and 1853, in existence at the time of such cessions, rests upon the political and not the judicial department of the government."

Accordingly it became well settled that no claim would be recognized unless based on a grant, concession, warrant or order of survey for some tract of land described therein and capable of location and located by a survey made before the change of sovereignty. Thus in United States v. King, 3 How. 773, 11 L.Ed. 824, in an ejectment action brought by the United States in which the defendants' claim of title was based on an instrument alleged to be a grant from the civil governor of Louisiana, the Court said, 3 How. at page 786, 787, 788:

"It has not the aid of any authentic survey, to ascertain and fix the limits of the land, and to determine its location. The instruments themselves contain no lines or boundaries, whereby any definite and specific parcel of land was severed from the public domain; and it has been settled, by repeated decisions in this court, and in cases, too, where the instrument contained clear words of grant, that if the description was vague and indefinite, as in the case before us, and there was no official survey to give it a certain location, it could create no right of private property in any particular parcel of land, which could be maintained in a court of justice. It was so held in the cases reported in 15 Peters United States v. Forbes, 15 Pet. 173, 184, 10 L.Ed. 701; Buyck v. United States, 15 Pet. 215, 10 L.Ed. 715; O'Hara v. United States, 15 Pet. 275, 10 L.Ed. 737; United States v. Delespine, 15 Pet. 319, 10 L.Ed. 753, and in 16 Peters United States v. Miranda, 16 Pet. 153 159, 160 10 L.Ed. 920. After such repeated decisions upon the subject, all affirming the same doctrine, the question cannot be considered as an open one in this court."

"In the case of Choteau v. Eckhart, 2 How. 344, 375, 11 L.Ed. 293, this court decided that an imperfect title derived from Spain, before the cession, would not be supported against a party claiming under a grant from the United States, unless it had been confirmed by act of Congress. The same point was again fully considered and decided, at the present term, in the case of Hickey and others v. Stewart and others 3 How. 750, 11 L.Ed....