United States v. 10.95 Acres of Land in Juneau

• Decision Date: 11 March 1948
• Docket Number: No. 4940-A.,4940-A.
• Citation: 75 F. Supp. 841
• Parties: UNITED STATES v. 10.95 ACRES OF LAND IN JUNEAU et al.
• Court: U.S. District Court — District of Alaska

75 F. Supp. 841

UNITED STATES v. 10.95 ACRES OF LAND IN JUNEAU et al.

No. 4940-A.

District Court, Alaska, Third Div. Juneau.

March 11, 1948.

Patrick J. Gilmore, Jr., U. S. Atty., Stanley Baskin, Asst. U. S. Atty., and Robert Boochever, Special Asst. U. S. Atty., all of Juneau, Alaska, for plaintiff.

William L. Paul, Jr., of Juneau, Alaska, for defendants.

FOLTA, District Judge.

Plaintiff seeks to condemn 10.95 acres of land, most of which at the time of taking on September 19, 1942, consisted of tide land near the Indian Village in the City of Juneau.

Defendants Miller et al., who are Indians residing in the village, filed their answer in which they alleged that: "Ever since the year 1867, * * * said claimants, * * * and their predecessors * * * have been, and now are the aboriginal users and occupants of, and in the exclusive possession of, and entitled to the exclusive possession of the land, submerged land and water described * * *."

From an order sustaining plaintiff's demurrer to this answer, defendants appealed. The Circuit Court of Appeals reversed, Miller v. United States, 9 Cir., 159 F.2d 997, holding that, while the defendants could not recover under their theory of aboriginal title, because of the extinguishment thereof by the Treaty of Cession, 15 Stat. 539, the allegations of their answer were nevertheless broad enough to include a claim of possessory rights under Sec. 8 of the Act of May 17, 1884, 23 Stat. 26, which provides: "That the Indians or other persons in said district (territory) 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 reserved for future legislation by Congress."

Upon remand the plaintiff amended its complaint to embrace an additional area, inadvertently omitted from the description in the complaint, to which defendants have filed an answer differing from its predecessor only in that it alleges that the value of the adjacent tidelands also claimed by them was reduced by reason of the taking of the area described in the complaint. Thus the principal questions upon the hearing were: (1) whether the defendants and their predecessors in interest had, from May 17, 1884, to September 19, 1942, continuously used or occupied the tidelands described in plaintiff's complaint, and the adjacent tidelands the value of which defendants allege was reduced by reason of the taking of the former; and (2) whether such depreciation in value followed.

The evidence may be summarized as follows: In the summer of 1880 Joe Juneau and Dick Harris, the founders of Juneau, arrived at the Indian Village, around which the City of Juneau was subsequently built, and in October discovered gold in what has since been named Gold Creek, which at that time emptied into Gastineau Channel near the westerly end of the village. There were a few smoke houses and what have been referred to as fish camps on the banks of Gold Creek, but the village was situated to the easterly thereof and was built, for easy access to tidewater, just above the high tide line. The residents of the village were members of the Auke Tribe which also maintained, in accordance with the customs of the Tlingits, a winter village 15 miles from Juneau in Auke Bay. In the fall the Indians would leave the village in Juneau and go into winter quarters and return, as one witness put it, when the buds were out the following spring.

Following the discovery of gold there was a great influx of whites into Juneau, and sometime later when lumber was produced locally, the village was rebuilt on its original site, except that all the houses were built in one row along the shore, whereas some of the huts had previously been built on the hillside. The tideland area used by the Indians at that time was, roughly speaking, trapezoidal in form, approximately 800 feet in width at its northern end upon which the village fronted, 1000 feet in width at its southern end at the line of low tide, and about 1250 feet long. It was bounded on the north by the village, on the east by the shore of Gastineau Channel, on the south by the deep water of the same channel, and on the west by Gold Creek. Every family had a dugout canoe and these, as well as the large canoes, were kept on the tideland in front of the village. Later these gave way to power boats which were moored at various places on the tidelands referred to and anchored near or in deep water approximately 500 yards south of the village. There were no encroachments on the tideland claimed by defendants and their ancestors until the city spread north along the water front and it was found necessary in 1914 to extend Willoughby Avenue. This was done by constructing a pile trestle northward along the easterly shore of the tideland area to within a hundred yards of the village and thence in a westerly direction across the tideland area to that part of the city which lay to the west and northwest of the village. This pile structure, while not interfering appreciably with the use of canoes and small boats, constituted, so far as power boats are concerned, an effective barrier. However, after 1934, when the pile trestle was replaced by a rock fill, small boats could reach the village from deep water only through culverts placed underneath, Willoughby Avenue preparatory to making the fill. About the time Willoughby Avenue was extended over the tide flats in 1914, Pemmer's Wharf, extending into Gastineau Channel in a westerly direction, was constructed below the line of low tide, and in about 1928 the plaintiff built its wharf which, to all appearances, was merely an extension of Femmer's Wharf parallel to and below the low tide line, thus barring to a considerable extent access to the tideland area from the south. In 1936, when the Standard Oil Company built its wharf, the face of which was in line with that of plaintiff's wharf, and connected it with an approach consisting of a rock fill extending northward to the upland, the tideland area was sealed off from access to deep water except for a channel left between the westerly end of the plaintiff's wharf and the easterly end of the Standard Oil Wharf. On September...