11 Alaska 406 | D. Alaska | 1947
Plaintiff brought this action seeking an injunction to prevent the defendants from interfering with plaintiff’s possession of a tract of public land, the title of which is in the
■ The tract may be roughly divided into two parts. The southerly or seaward portion extending inland for about 50 feet from the line of mean high tide, is covered with water at extreme high tide, and in case of storm is subject to erosion. The remaining northerly or inland portion of the tract, which is about 75 feet long, is not covered by water at any stage of the tide.
Some years ago the seaward end of the tract, between the lines of mean high tide and extreme high tide, was first in the possession of Peter Knudsen who had thereon two structures, one a fish rack and the other a fish cache. Claim was made to the tract at a later date by Adolph Osterhaus. The record shows that by quitclaim deed dated July 9, 1928, Peter Knudsen and his wife conveyed the tract to the plaintiff in this action and that by similar deed dated August 2, 1932, Osterhaus conveyed all of his right, title, claim and interest in the land to A. H. Bradford, former husband of the plaintiff, now deceased. Later plaintiff, by Bradford’s will or by operation of law, took title to all of the Bradford property. So it would seem that the plaintiff and her predecessor in interest have twice purchased the southerly portion of the tract from successive claimants. But it must be understood that no claimant had or has title to the land and that such title has always been and is in the United States. That fact must have been known at all times to all concerned.
On October 16, 1945, the defendants Chris Danielsen and Panza T. Danielsen filed for record in the local Recorder’s office a notice claiming the tract as a boat house site, although the description was- erroneous and included some adjoining land owned by the plaintiff. So far as shown by the evidence, the recording of this notice was not brought to the attention of the plaintiff before May, 1946. Late in May, 1946, the plaintiff, in order to use the tract for other than garden purposes, partially removed her fence from the easterly side of the tract above the extreme high tide line by lowering the wires to the ground and removing several of the fence posts. Immediately thereafter, and on May 24, 1946, the defendants placed a small building, variously called an outhouse or a tool house, on the northeast corner of the tract, and posted a notice on the land claiming it, but the notice so posted again described the tract incorrectly and included adjoining land owned by the plaintiff. Later the defendant Chris B. Danielsen made application for entry of the tract in the United States Land Office, at Anchorage, Alaska, still using the same erroneous description thereof. Still later the defendant filed in the Land Office a correct description of the boundaries of the tract. Within a few hours after the defendants placed the outhouse or tool house on the land, the plaintiff restored her fence along the easterly side of the tract. Some time thereafter the fence was pushed or trampled down, presumably by the -defendants.
The plaintiff has filed in the land office a protest against the entry of the tract by Danielsen, but no evidence was ad
From the evidence it appears that from and after the year 1940 the plaintiff has made no use whatever of the seaward end of the tract between the lines of mean high tide and extreme high tide. In her complaint the plaintiff still claims possession and to be entitled to possession of the entire tract under claim and color of title based upon the deeds from Knudsen and from Osterhaus, and upon claim of possession of the plaintiff under such alleged color and claim of title since 1928.
I find that the plaintiff has been in possession of the northerly end of the tract, the part used for a garden, continuously for many years past and that possession was entirely undisputed until the trespass by Danielsen in May 1946. I further find that since the year 1940 neither the plaintiff nor any one else known to the record in this case has been in possession of the southerly or seaward end of the tract between mean high tide and extreme high tide, except such possession as has been exercised by Danielsen since May, 1946, and that between the year 1940 and the present time the plaintiff has not been in possession of that part of the tract.
This is and must be an action for possession only, because the title of the land is in the United States and only the United States Government through its proper officers can give title to any one; moreover, the law has reserved to the proper department of the United States sole and complete jurisdiction to determine questions of title, that is to say, who shall take title from the United States, with that procedure the Courts have no right to interfere, and the finding of the department or officer of the Government on the subject is unassailable in the Courts except for
It is argued by the defendant that the Court is without jurisdiction to make any determination on the subject and has urged upon the Court the view that the action should be dismissed and the title and consequent right of possession be determined by the executive branch of the Government and in that connection has cited a number of authorities including the case of Tiernan v. Miller and Lieth, 69 Neb. 764, 96 N.W. 661. The opinion in the Tiernan case contains a universally correct statement of the law. But in that case it appears that the Government had already acted through its executive authority and that one or some of the claimants held duplicate receiver’s receipts which the Court there held gave right of possession. No such corresponding situation exists in the instant case and, therefore, the Tiernan case, however correct in theory or in the statement of the principles of law, is helpful but may not control the decision in the case at bar.
The question here as in the Tiernan case is one of possession only and the right of possession. Fortunately our own Circuit Court of Appeals for the Ninth Circuit has announced the governing rule in the case of Arness v. Petersburg Packing Company, 260 F. 710, decided in the year 1919. Although the late Judge Morrow, then a member of the Court, dissented, the opinion of the Court stands as the law and has never been departed from in that Court. Moreover the principle therein announced was followed in the case of Patterson et al. v. Hamilton, 9 Cir., 1921, 274 F. 363, 5 Alaska Fed. 59, and that principle is that one in possession of public lands in Alaska, and making use of the same, can hold them against all adverse claimants except the United States itself even though the lands are of such status that under ordinary circumstances the Government
While not directly in point, there are other judicial declarations on the subject some of which are controlling in nature and others deserving of high respect: Lyle v. Patterson, C.C., 160 F. 545; Id., 9 Cir., 176 F. 909; Id., 228 U. S. 211, 33 S.Ct. 480, 57 L.Ed 804; Denee v Ankeny, 246 U.S. 208, 214, 38 S.Ct. 226, 62 L.Ed. 669; Rourke v. McNally et al., 1893, 98 Cal. 291, 33 P. 62; Switzler v. Earnheart, 1911, 59 Or. 344, 117 P. 296, 297. The right of possession was discussed at length and decided in harmony with the views herein expressed by Judge Overfield in the case of Burr v. House et al., 3 Alaska 641, and by Judge Wickersham in the case of Heine v. Roth et al., 2 Alaska 416.
Hence the decision would be a simple one except for another feature of the case. The plaintiff many years ago fenced in, partially or entirely, and has since held under fence, the northerly end of the tract extending approximately from the line of extreme high tide to its northerly boundary, an area approximately 75 feet long, 18 feet wide at the northerly end and 20 feet or more wide at the southerly end. This fence has evidently been built and maintained in violation of the act of February 25, 1885, 43 U.S.C.A. § 1061, forbidding the fencing of the public domain, Clemmons v. Gillette, 1905, 33 Mont. 321, 83 P. 879, 114 Am.St.Rep. 814. Such fencing cannot be justified upon the theory that placing the land within fence is part of the procedure for acquiring title or merely the anticipation of acquiring title to public lands which are open to entry and which the one fencing is eligible to enter, as illustrated in Waring v. Loomis, 1904, 35 Wash. 85, 76 P. 510 and Mc
T,he enclosure of the land by fence on the part of the plaintiff is a circumstance that may be considered as conceivably operating to bar plaintiff from the relief to which she is otherwise entitled because it appears that the land is -of such status that neither defendant nor plaintiff may enter it at the present time. Despite the maxim that he who comes into equity must come with clean hands, denial of all relief to the plaintiff in this case because she built and maintained the fence would not be in harmony with the fundamental principles of justice.
The plaintiff has asked for damages, but those damages are almost entirely predicated upon the averments of the complaint in which the plaintiff alleges that she was at the time of the filing of the complaint, and for many years past had been, in possession of the property. At all stages of the litigation the plaintiff has insisted that she is in possession and has enjoyed such possession for more than seven years past. She asserts claim and color of title for at least that period. If plaintiff were not in actual possession, then the present action must be dismissed because in that event only an action in ejectment would lie in which either party would be entitled to trial by jury, Arness v. Petersburg Packing Co., supra, and so the Court must take at face value the averments of the complaint, sustained by the evidence, that the plaintiff is and has been in possession. Upon that theory the plaintiff’s claim for damages is not supported by the law nor justified by the evidence. It is true that the testimony shows that the plaintiff has failed to use the property for certain purposes and that her non-use of the property for those purposes has caused her damage, but there is no sufficient showing that the plaintiff could not have made the use of the property which she contemplated had she really desired to do so. No damages arising from the trespass of May 24, 1946, have been proved. In any event, they would be in amount negligible.
