Kinkead v. United States

Decision Date04 December 1893
Docket NumberNo. 83,83
Citation37 L.Ed. 1152,14 S.Ct. 172,150 U.S. 483
PartiesKINKEAD et al. v. UNITED STATES
CourtU.S. Supreme Court

Statement by Mr. Justice Brown:

This was a petition by John H. Kinkead and Samuel Sussman, claiming to be the owners and lawfully possessed of a certain warehouse in Sitka, Alaska, for the rent of a part of such warehouse at the rate of $200 per month, from December 15, 1868, to December 15, 1888, the date of the petition, amounting to $48,000; and also the further sum of $69,300 for rent of another part of the same building from September 12, 1869, to December 15, 1888; together with the further sum of $50,000 for the value of the building; the aggregate amount of the claim being $167,300.

Petitioners claimed to have purchased the building from the Russian-American Company, through Prince Maksoutoff, chief factor, for the sum of $3,000 in gold.

A former petition for the same claim had been presented to the court of claims, and dismissed by it for want of jurisdiction, upon the ground that, as the title set up by the claimants depended upon the construction of the treaty between the United States and the emperor of Russia, the court was without jurisdiction over the same. 18 Ct. Cl. 504. Whereupon claimants procured the passage of an act of congress, approved January 17, 1887, referring their claim to the court of claims for adjudication.

The petition under consideration having been heard, the court made a finding of facts, the substance of which appears in the opinion of this court, and entered a judgment dismissing the petition upon the ground that Kinkead and Sussman had no title to the property in question. From this judgment, petitioners appealed to this court.

John Mullan, George A. King, and Jos. K. McCammon, for appellants.

Asst. Atty. Gen. Dodge, for the United States.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

Petitioners' title to the building in question which they claim to have bought of the Russian-American Company, a Russian corporation, soon after the cession of Alaska to the United States, depends upon the construction to be given to the treaty of March 30, 1867, between his majesty, the emperor of Russia, and the United States, (15 Stat. 539,) the correspondence and protocol connected therewith, and the act of congress of January 17, 1887, referring this claim to the court of claims for adjudication. Upon the hearing in the court of claims the court found 'that at the time Alaska was ceded by Russia to the United States there was standing on a certain lot adjacent to the public wharf in the town of Sitka a building, constructed of hewn logs, 118 feet in length and 50 feet in width. The land upon which this building stood belonged to Russia, and was thus embraced in the cession to the United States.'

This building was erected in 1845 by the Russian-American Company, at their own expense, and from that time to the date of the treaty had been used by said company as a warehouse for the storage of furs and other property, and for trading purposes.

By what authority from Russia this land was built upon and occupied by said company, further than is shown in finding 2, (which relates solely to proceedings taken for the transfer of the ceded territory,) 'does not appear.'

By the first article of the treaty the emperor makes cession of 'all the territory and dominion now possessed by his said majesty on the continent of America and in the adjacent islands, the same being contained in the geographical limits herein set forth, to wit,' (boundaries,).

The second article provided that 'in the cession of the 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.'

Article 4 provides for the appointment of an agent for each government, for the purpose of making and receiving formal delivery of the ceded territory, and 'for doing any other act which may be necessary in regard thereto.' 'But the cession, with the right of immediate possession, is nevertheless to be deemed complete and absolute on the exchange of ratifications, without waiting for such formal delivery.'

Article 6 provides that 'the cession of territory and dominion herein made is hereby declared to be free and unincumbered by any reservations, privileges, franchises, grants, or possessions, by any associated companies, whether corporate or incorporate, Russian or any other, or by any parties, except merely private individual property holders.'

It should be added in this connection, and as explanatory of the sixth article of the treaty, that on March 23, 1867, Mr. Seward, then secretary of state of the United States, addressed a letter to the Russian minister, in which he stated: 'I must insist upon that clause in the sixth article of the draft which declares the cession to be free and unincumbered by any reservations, privileges, franchises, grants, or possession by any associated companies, whether corporate or incorporate, Russian or any other, etc., and must regard it as an ultimatum. With the president's approval, however, I will add two hundred thousand dollars to the consideration money on that account.' To this letter the Russian minister made reply that he believed himself 'authorized to accede literally to this request on the conditions indicated' in the note of the secretary.

In pursuance of the fourth article of the treaty, the president appointed Gen. Rousseau commissioner to receive the formal transfer of the ceded territory, with instructions to 'enter into communication with Captain Pestchouroff, the Russian commissioner, now here, and arrange with him with regard to proceeding as soon as may be convenient to the territory,' etc. 'Pursuant to the stipulations of the treaty, that transfer will include all forts and military posts and public buildings, such as the governor's house, and those used for government purposes, dockyards, barracks, hospitals, and schools, all public lands, and all ungranted lots of ground at Sitka and Kodiak. Private dwellings and warehouses, blacksmiths', joiners', coopers', tanners', and other similar shops, ice houses, flour and saw mills, and any small barracks on the island are subject to the control of their owners, and are not to be included in the transfer to the United States.'

The commissioners were further instructed to draw up and sign full inventories, distinguishing between the property to be transferred to the United States and that to be retained by individuals; and were also instructed to furnish the proprietors of individual property with a certificate of their right to hold the same upon production of documentary or other proof of ownership.

'As it is understood that the Russian-American Company possess in that quarter large stores of furs, provisions, and other goods now at Sitka, Kodiak, and elsewhere on the main land and on the island, it is proper that that company should have a reasonable time to collect, sell, or export that property. For that purpose the company may leave in the territory an agent or agents for the purpose of closing their business.'

In his report of his proceedings, Gen. Rousseau stated: 'I found that by the charter of the Russian-American Company it had authority to vest in its employes, occupants of land in the territory, the title thereto. This was on condition, however, that the possessions of the Indians should not be interfered with.

'Acting under this charter, the company from the first caused dwellings to be erected for the use of its employes on lots of ground set apart for the purpose. The title in fee to such premises was often vested in the employe in possession when he had faithfully served out his term in the company, or, having died before it ended, and having a widow or children in the territory, the title was frequently vested in them.

'Finding in its charter this authority of the company to vest title to land in its employes, and that very many of the dwellings erected by the company were occupied by employes or their widows and children, who claimed the property in fee, the commissioners called on the governor, Prince Maksoutoff, to define and certify to the interest of each individual thus occupying such dwellings and lots, in order that we might distinguish between those who owned the property in fee and those who claimed a less interest, and in compliance with your instructions give certificates to the claimants accordingly.

'The inventories, respectively marked 'C' and 'D,' (forming part of the protocol,) which are forwarded with this report, will show in part the action of the governor in the premises. For the rest he gave a certificate stating the interest of each occupant in the premises occupied, on the back of which the commissioners placed their approval, and it was left to be delivered to the occupant.

'In order to be accurate, and prevent disputes hereafter about the title to houses and lots, we made a map of New Archangel, (forwarded with this report,) on which every house and dwelling in the town is located and numbered, and, as between the claimant and the United States, the title defined to it, and settled in the inventories. This was thought necessary in order to give, in accordance with your instructions, to each man of property who desired to dispose of it a certificate of title.

'The town of New Archangel [now Sitka] was built in the main by the Russian-American Company, and, except the dwellings transferred by them to their employes, and the public buildings transferred to the United States, is owned by that company still. Yet it has but a possessory interest in the land, as it only had permission to erect buildings upon it; for, although it had authority to vest the title of lands in its employes, it had no power to vest such title in itself....

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