U.S. v. Clarke

• Decision Date: 04 February 1976
• Docket Number: No. 74--1659,74--1659
• Citation: 529 F.2d 984
• Parties: UNITED STATES of America, Plaintiff-Appellant, and Bertha Mae Tabbytite, Plaintiff-Intervenor, v. Glen M. CLARKE et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 984

529 F.2d 984

UNITED STATES of America, Plaintiff-Appellant and Bertha Mae Tabbytite, Plaintiff-Intervenor, v. Glen M. CLARKE et al., Defendants-Appellees.

No. 74--1659.

United States Court of Appeals Ninth Circuit.

Feb. 4, 1976.

Carl Strass, Atty. (argued), Lands & Natural Resources, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Albert Maffei (argued), Anchorage, Alaska, for defendant-appellee.

Randall E. Farleigh (argued), of Robison, McCaskey, Strachan, & Hoge, Anchorage, Alaska, for defendant-appellee, Anchorage Natural Gas.

OPINION

Before DUNIWAY, TRASK and SNEED, Circuit Judges.

DUNIWAY, Circuit Judge:

The United States, joined by Bertha Mae Tabbytite as an intervenor, brought suit to enjoin the defendant class from trespassing on land patented to Tabbytite, an Indian, under 25 U.S.C. §§ 331--32 as an Indian trust allotment, and to recover compensatory and punitive damages for trespass upon that land from 1958 through 1969. The district court denied an injunction, finding that the defendants had an easement implied by necessity across Tabbytite's land, but awarded plaintiffs $3,500 in compensatory damages--$2,000 for past trespasses and $1,500 for prospective trespasses. The United States appeals and we reverse.

Tabbytite's 160 acres of land are located in the Chugach Mountains southeast of Anchorage, Alaska. In November, 1956, she filed a homestead application for the land with the Department of the Interior. ¹ A year and a half later, in June, 1958, Glen Clarke, the principal named defendant, applied for a homestead on an adjoining 80-acre parcel. To secure access to a public highway, Clarke constructed a road across Tabbytite's land in the late summer of 1958. The district court held that his doing so and using the road was a continuing trespass, for which it awarded damages. It is undisputed that Clarke never obtained a grant of an easement from anyone.

After securing his patent in 1961, Clarke subdivided his property into 40 parcels, most of which he sold before this suit commenced. Tabbytite was not as fortunate. Between 1958 and 1966, Clarke and his former wife filed three separate contests to Tabbytite's patent application. Clarke admitted at trial that he was aware of 43 U.S.C. § 185 which gives a successful contestant a preference to the cancelled homestead. Although Tabbytite prevailed in these contests, she could not get her patent while the contests were pending. Apparently despairing of ever securing the land via the homestead route, she elected to abandon her homestead application and take the land as an Indian trust allotment. However, there was no break in her possession.

During this same period Tabbytite made several attempts to bar those whom she considered trespassers from crossing her property. She posted 'no trespassing' signs, and once, in 1967, sought to block the road physically. On this occasion, Clarke told her that Alaska law prohibited the blocking of a public highway and warned that she would be arrested if she persisted. She did not, choosing instead to notify the Bureau of Indian Affairs in Anchorage of her problem. On the advice of the Bureau, the United States, which holds legal title to Tabbytite's trust allotment, filed this action in 1969.

The substance of Clarke's ² defense is that he has an easement of necessity across Tabbytite's land, and the trial court so held. Clarke cites United States v. Dunn, 9 Cir., 1973, 478 F.2d 443, for the proposition that a land patent may include such an implied easement across adjacent land still held by the federal government. Dunn is inapplicable here, because Tabbytite's trust allotment is not federal land and was not when Clarke applied for his homestead or when he got his patent. Her entry for purposes of homesteading in 1956 separated the land from the public domain. Knapp v. Alexander-Edgar Lumber Co., 1915, 237 U.S. 162, 166--67, 35 S.Ct. 515, 59 L.Ed. 894. Legal title remained in the government, but as against all except the United States, she was vested with all the incidents of fee simple title when she entered. United States v. Buchanan, 1914, 232 U.S. 72, 76--77, 34 S.Ct. 237, 58 L.Ed. 511. Clarke's claim to an easement of necessity through the public domain, even assuming it to be meritorious, cannot give him any such right against Tabbytite. Cf. 3 Tiffany on...