Carroll v. Price
| Decision Date | 25 April 1896 |
| Citation | 81 F. 137 |
| Parties | CARROLL v. PRICE et al. |
| Court | U.S. District Court — District of Alaska |
Syllabus by the Court
The paramount title to all lands in Alaska is in the United States.
Citizens of the United States have the right to go upon the public lands of the United States in this district, and possess occupy, use, and improve the same. This right has been so often and so repeatedly acceded to by the general government that it has now become the settled policy of this country and in this district the right is expressly recognized by congress in the first proviso of section 8 of the act providing a civil government for Alaska. 23 Stat. 24; Supp Rev. St. (2d Ed.) p. 433.
Where two persons claim adversely to each other the possession of any piece or parcel of government land, the one having the prior possession has the prior right. This rule, which universally prevails in the Western states, has also met the approval of congress in the proviso to section 12 of chapter 561, St. 1891 (26 Stat. 1100), relating to public lands in Alaska.
Priority of possession between two contending claimants to the same piece of government land is a question of fact for the jury, and, while no notice of location, such as is customary in case of mining claims, is necessary, still, where such location notice is made on nonmineral lands, it may be received in evidence, and considered by the jury as tending to show possession in the locator, together with any other acts indicating possession, such as actual occupation of the ground, making improvements of any nature thereon, tilling the soil, clearing the land from trees and stumps, fencing and placing structures thereon, or other acts which tend to show a bona fide intention to occupy and hold the land.
The possessory right in and to government lands, when once acquired, may be conveyed from one person to another, and instruments in writing making such conveyances are admissible in evidence, and may be considered by the jury as tending to establish this right in the last grantee.
A party having acquired possessory rights in government lands may lose or forfeit the same by removing therefrom or abandoning his claim, and in such case the land becomes restored to its original status in the public domain, and is subject to occupancy and possession by any other citizen of the United States; but, if the original occupant resumes possession before any other party has acquired possession thereof, the rights of such original occupant become thereby restored and re-established.
The official survey and plat of any town site located on government lands, and the lots and blocks thereof, are permanent landmarks, and may be considered as such by the jury for the purpose of establishing the exact locus in quo of adjoining lands outside the town site, and in this case may be so considered with reference to the piece of ground in dispute.
Where the title to tide-lands along the shores of a state is vested in such state by virtue of its sovereignty, and tide-lands along the shores of any territory are held in trust by the general government for the future state, nevertheless the rule now is that during the territorial period of the United States holds the permanent title to tide-lands, and may make grants thereof.
Where the right of navigation is not impaired, possessory rights to tide-lands here will be determined by the rules of law governing similar rights to up-lands until 'future legislation by congress' concerning such up-lands, and, as to the tide-lands, until the ultimate sovereign, whether state or federal, shall other wise provide.
This court will entertain an action of ejectment for the purpose of determining the right of possession to either up-lands or tide-lands in this district between two contending parties claiming the same piece of ground.
Johnson & Heid, for plaintiff.
J. F. Maloney and John Trumbull, for defendants.
This is an action of ejectment, brought by the plaintiff to recover possession of a piece of ground described as follows: 'Beginning at the northeast corner thereof, whence an iron bolt establishing the southwest corner of lot number 1, in block number 2, of the town of Juneau, according to the official survey of said town made by the deputy United States surveyors, and approved by the trustees of said town site, bears north, 57 degrees 52 minutes east, 34 feet; thence south, 44 degrees east, 35 feet; thence south, 46 degrees west, 50 feet; thence north, 44 degrees west, 35 feet; thence north, 46 degrees east, 50 feet to place of beginning. ' The plaintiff alleges that these premises are a part of a tract of land abutting on lot No. 4, in block No. 1, of said town site, being 50 feet in width along said lot 4, and extending 100 feet into Gastinaux channel, an arm of the North Pacific Ocean. The tract 50 by 100 feet is therefore partly up-land and partly tide-land, and is claimed by the plaintiff by virtue of possession, occupancy, and improvement, and upon which he has erected a wharf, warehouses, and other appurtenances commonly used for shipping purposes. The defendants deny the prior possession and occupancy of the plaintiff of the ground in dispute, and claim to hold the same by virtue of prior location, possession, and occupancy. The question for you to determine from the evidence and under the instructions of the court is, which one of these parties is entitled to the piece of ground in controversy.
While the paramount title to all lands in Alaska is in the United States, congress and the general government have recognized for a great many years the right of the American citizen to go onto public lands, occupy, possess, use, and improve the same, with the view of ultimately obtaining title thereto from the general government whenever the same shall be opened to purchase, and in this district this right is expressly recognized by congress in the first proviso of section 8 of the act of May 17, 1884, providing a civil government for Alaska. 23 Stat. 24; Supp. Rev. St. (2d Ed.) p. 433. When congress enacted this law it undoubtedly had in view the condition of affairs in this country, and, in order to protect settlers upon the public lands here, incorporated into said act the proviso above mentioned, which is in the following language:
'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 (are) reserved for future legislation by congress.'
Under this provision, all persons who are in the actual use and occupancy of tracts of public land in this district, or who had laid claim to such tracts or pieces of land at the time this law was enacted, are protected against intrusion, and their possession cannot be disturbed. This provision is a mandate to the general land office to the effect that it cannot grant title adversely to a citizen who is in actual possession or occupancy, or who has a bona fide claim to a piece or tract of public land in this district; and the court also construes this provision as a mandate to the court that it shall not disturb a citizen who is in actual possession or...
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