Russian- Am. Packing Co. v. United States, 199 U.S. 570

‘RUSSIAN- AMERICAN PACKING COM¬ PANY, Appt.,

v.

UNITED STATES.

(See S. C. Reporter’s ed. 570-579.)

Alaska.— No intention on the part of Con¬ gress to permit rights to public lands in Alas¬ ka to he initiated by a settlement made after the enactment of the act of May 17, 1884 (23 Stat. at L. 24, chap. 53), can be gathered from the provision of § 8 of that act that “the In¬ dians 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, hut the terms under which such persons may acquire title to such lands is reserved for future legislation by Con¬ gress,” especially when considered with a sub¬ sequent clause of that section that ‘‘nothing contained in this act shall he construed to put In force in said district the general land laws,” and with the provision of § 12 for the appointment of a commission to report the facts to enable Congress to determine what limitations or conditions should be imposed when the land laws should be extended to the district.

ervation for tisb-enltnre station. —

Any rights previously acquired under the act of March 3, 1891 (26 Stat. at L. 1100, chap. 561), §§ 12, 13 (U. S. Comp. Stat. 1901, pp. 1467, 146S), by settlement upon and survey of public lands in Alaska, were terminated by the proclamation of the President that the land in question was reserved for the purpose of establishing a fish-culture station, in ac¬ cordance with the declaration of § 14 of that act, that the provisions of the two preceding sections shall not he so construed as to war¬ rant the sale of any lands belonging to the United States which shall be reserved for public purposes or selected for fish culture stations.

314

for improvements. — The value of im¬ provements made on public lands in Alaska by a mere trespasser, occupying the land without a shadow of title, cannot be recov¬ ered from the United States upon the selec¬ tion of the land in querstion by the govern¬ ment, in accordance with the act of March 3, 1891, (26 Stat. at L. 1100, chap. 561), f 14, for a fish-culture station.

[Nos. 85, 86.]

Argued November 29, 1905. Decided De¬ cember IS, 19o5.

\ PPEAL from the Court of Claims to re- T*- view a judgment rejecting a claim for the value of improvements erected on pub¬ lic lands in Alaska which have been selected by the government for a fish-culture station. Affirmed.

See same case below, 39 Ct. Cl. 460.

Statement by Mr. Justice Brown:

This is an appeal from a judgment of the court of claims, rejecting a claim of the Russian- American Packing Company' *for

the value of certain improvements erected by it on the island of Afognak, off the coast of Alaska. The packing company was in¬ corporated in 1889, under the laws of Cali¬ fornia, for the purpose of carrying on the business of packing salmon on the is¬ land of Afognak; and for that purpose pur¬ chased and shipped materials for a cannery and buildings to be used in canning salmon, and also, without authority or license from the United States, took possession of a tract of about 159.52 acres of land, and erected thereon buildings, machinery, etc., at a cost of about $45,000. Prior to this time no one had been in possession of this tract. Claim¬ ants remained in possession for four years, and until December 24, 1S92, and carried on a canning business at a profit of about $100,000, about $35,000 of which was subse¬ quent to the passage of the act of March 3,

1891 [26 Stat. at L. 1095, chap. 501, U. S.

Comp. Stat. 1901, p. 1535].

On April 1, 1892, claimant applied to the Surveyor General for a survey of the tract, under the act of 1891, and deposited in the subtreasury at San Francisco $433.80, as the estimated cost of such survey. The sur¬ vey was made, was approved March 15,

1893, and forwarded to the Commissioner of the General Land Office. Prior to December 24, 1892, the tract so occupied had not been reserved by the United States for fish cul¬ ture or any other purpose; nor had the same been purchased or applied for by any other person. On that day the President issued a. proclamation [27 Stat. at L. 1052] de¬ claring the whole island reserved for the purpose of establishing thereon a United

199 U. S.

Russian- American Packing Co. v. United States. 571, 572, 575-577

States fish-culture station, and warned all persons to depart therefrom. In July, 1893, claimant was informed of this proc¬ lamation by agents of the government, and ordered to leave the island, which it did, and has not returned thereto. On January 15, 1895, the Commissioner of the General Land Office, in passing upon the survey transmitted to him, addressed a letter to the Surveyor General, calling attention to the President’s proclamation, and rejected the survey on that ground, as well as upon the ground that the survey was not in square form, as required by statute. No appeal was taken from his decision.

*The court found as a conclusion of law that claimant was not entitled to recom¬ pense for the value of the improvements, nor for the loss of profits arising from it3 removal from the island, but was entitled to recover the amount deposited for the ex¬ pense of the survey.

Mr. Alexander Britton argued the cause, and, with Mr. Aldis B. Browne, filed a brief for appellant.

Mr. Frederick De Conroy Fanst ar¬ gued the cause, and, with Assistant Attor¬ ney General Pradt, filed a brief for appellee.

Mr. Justice Brown delivered the opinion of the court:

It is well understood that the mere settle¬ ment upon public lands, without taking some steps required by law to initiate the settler’s right thereto, is wholly inoperative as against the United States. Landsdale v. Daniels, 100 U. S. 113, 116, 25 L. ed. 587, 588; Maddox v. Burnham, 156 U. S. 544, 39 L. ed. 527, 15 Sup. Ct. Rep. 448; North¬ ern P. R. Co. v. Colburn, 164 U. S. 383, 41 L. ed. 479, 17 Sup. Ct. Rep. 98.

Petitioner, however, bases its right to re¬ cover upon certain statutes which, it is in¬ sisted, recognized the right of the petition¬ er to settle upon this island and make the improvements in question. The first of these is the act of May 17, 1884, “provid¬ ing a civil government for Alaska” (23 Stat. at L. 24, chap. 53), wherein it was en¬ acted by § 8 “that the Indians or other per¬ sons 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 per¬ sons may acquire title to such lands is re¬ served for future legislation by Congress.”

It is quite clear that this section simply recognized the rights of such Indians or other persons as were in possession of lands at the time of the passage of the act, and reserved to them the power to acquire title thereto after future legislation had been en¬ acted by Congress. As the petitioner did 199 U. S.

not take possession of this land until five years after the act of 1884 was passed, it was a mere trespasser, and not in a posi¬ tion to avail itself of any contract which might be extorted from the language of the act in favor of the Indians or other persons who might have been in possession of the land at the passage of the act.

That this act was intended merely as a preliminary to future legislation and for the temporary protection of Indians and other settlers is made more manifest by §

12 of the same act:

“That the Secretary of the Interior shall select two of the officers to be appointed un¬ der this act, who, together with the govern¬ or, shall constitute a commission to exam¬ ine into and report upon the condition of the Indians residing in said territory, what lands, if any, should be reserved for their use, 'what provision shall be made for their education, what rights by occupation of set¬ tlers should be recognized, and all other facts that may be necessary to enable Con¬ gress to determine what limitations or con¬ ditions should be imposed when the land laws of the United States shall be extended to said district.”

So far from Congress intending by this act to invite a settlement upon public lands in Alaska, a contrary inference arises from a subsequent clause of § 8, that “nothing contained in this act shall be construed to put in force in said district the general land laws of the United States.”

We come now to the act of March 3, 1891 (26 Stat. at L. 1100, chap. 561), § 12 (U.

S. Comp. Stat. 1901, pp. 1467, 1468) of which provides:

“Sec. 12. That any citizen of the United States twenty-one years of age, and any association of such citizens, and any corpo¬ ration incorporated under the laws of the United States or of any state or territory of the United States, now authorized *by law

to hold lands in the territories, now or here¬ after in possession of and occupying public lands in Alaska for the purpose of trade or manufactures, may purchase not exceeding one hundred and sixty acres, to be taken as near as practicable in a square form, of such land at two dollars and fifty cents per acre. . . ■”

Section 13 provides for a survey, a de¬ posit of the cost of such survey, a report to the Commissioner of the General Land Of¬ fice, and an approval by him of the survey, and for the final issue of the patent. Sec¬ tion 14 of the act is important, and reads as follows:

“Sec. 14. That none of the provisions of the last two preceding sections of this act shall be so construed as to warrant the sale of any lands belonging to the United States

577-579

Oct. Term,

Supreme Court of

k . . to which the natives of Alaska 1

have prior rights by virtue of actual occu¬ pation, or which shall be selected by the United States Commissioner of Fish and Fisheries on the island of Kadiak and Afog- nak for the purpose of establishing fish- culture stations, . . . and there shall

be reserved in all patents issued under the provisions of the last two preceding sections the right of the United States to regulate the taking of salmon and to do all things necessary to protect and prevent the de¬ struction of salmon in all the waters of the lands granted frequented by salmon.

Even if § 14 had not been enacted, it would not follow that petitioner, by §§ 12 and 13, became entitled k> a patent of the United States by procuring a survey of such lands. We have had occasion in sev¬ eral cases to hold that, although the occupa¬ tion and cultivation of public lands with a view to pre-emption confers a preference over others in the purchase of such lands by the bona fide settler, which will enable him to protect his possession against other indi¬ viduals, it does not confer a vested right as against the United States in the land so occupied. Such a vested right, under the pre-emption laws, is only obtained when the purchase money has been paid, and receipt from the proper land officer given to the

purchaser. *Until this has been done it is competent for Congress to withdraw the land from entry and sale, though this may defeat the inchoate right of the settler. Frisbie v. Whitney, 9 Wall. 187, 19 L. ed.

prerequisites having been complied with, the settler is then entitled to a certificate of entry from the local land office and ulti¬ mately to a patent. Yosemite Valley Case (Hutchings v. Low) 15 Wall. 77, 8-7, 21 L. ed. 82, 85; Campbell v. Wade, 132 U. S. 38, 33 L. ed. 242, 10. Sup. Ct. Rep. 9; Shiver v. United States, 159 U. S. 491, 40 L. ed. 231, 16 Sup. Ct. Rep. 54.

The case of Lytle v. Arkansas, 9 How. 314, 13 L. ed. 153, is much relied upon by the petitioner and is carefully criticized and distinguished by Mr. Justice Field in the Yosemite Valley Case. In that case proofs were taken and decided both by the register and the receiver of the land office to be sufficient, and the money was paid by the claimant, and received by the commis¬ sioner; but, through misconduct or neglect, the register refused afterward to permit claimant to enter the section, and it was teld that the right of the pre-emptor thus acquired could not be impaired by 5, selec¬ tion of land by a subsequent act of Congress. Commenting on this case Mr. Justice Field 316

the United States.

1 observed in the Yosemite Valley Case (p.

93, L. ed. 87 ) that —

“The whole difficulty in the argument of the defendant’s counsel arises from his con¬ founding the distinction made in all the cases whenever necessary for their decision between the acquisition by the settler of a legal right to the land 'occupied by him as against the owner, the United States, and the acquisition by him of a legal right as against other parties to be preferred in its purchase when the United States have deter¬ mined to sell. It seems to us little less than absurd to say that a settler or any other person, by acquiring a right to be pre¬ ferred in the purchase of property, provid¬ ing a sale is made by the owner, thereby ac¬ quires a right to compel the owner to sell, or such an interest in the property as to de¬ prive the owner of the power to control its disposition.”

But if there were any doubt regarding the rights of the petitioner in connection with the above case, they are completely re¬ solved by the language of § 14 of the act, which declares *that the provisons of the

preceding sections shall not be so construed as to warrant the sales of any lands be¬ longing to the United States which shall be reserved for public purposes, or selected by the Commissioner of Fish and Fisheries on the islands of Kadiak and Afognak, for the purposes of establishing a fish-culture sta¬ tion. As the President exercised the rights thus reserved, and declared the whole island appropriated for the purpose of establishing a fish-culture station, and warned all per¬ sons to depart therefrom, it is clear that the rights, if any, previously acquired by the settlement, were terminated by the procla¬ mation. Petitioner gained no additional consideration from the improvements put upon the land, since, if for no other reason, these were made prior to the act of 189 1-, when it was a mere trespasser, and occupy¬ ing the land without a shadow of title.

Affirmed.