119 F. 83 | 9th Cir. | 1902
The record in this case shows that for many years there was a small Indian settlement at a point on Tongass narrows, in Southeastern Alaska, where Ketchikan creek flows into the sea. The shore line there is in the form of a crescent, in front of which, at low tide, there is a sand and gravel beach alternately covered and uncovered by the flow and ebb of the tide. It was the custom of the Indians to fish for salmon at that place, as they were and still are found in great numbers at and about the point where the creek empties into the sea.
On the 17th day of May, 1884, congress passed an act entitled “An act providing a civil government for Alaska” (23 Stat. 26), by which the land district of Alaska was created, and a United States land office established at Sitka. No provision was thereby made for the entry nor for the survey of any of the public lands of the territory other than mining claims, but it was, among other things, provided by section 8 of the act (48 U.S.C.A. § 356 and note)
By an act approved March 3, 1891,- entitled “An act to repeal timber-culture laws, and for other purposes” (26 Stat. 1095), congress provided, among other things, for the entry of lands in Alaska for town site purposes, and also “that any citizen of the United States twenty-one years of age, and any association of such citizens, and any corporation 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 hereafter 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: provided, that in case more than one person, association or corporation shall claim the same tract of land, the person, association or corporation having the prior claim by reason of possession and continuous occupation shall be entitled to purchase the same; but the entry of no person, association, or corporation shall include improvements made by or in possession of another prior to the passage of this act.”
In May, 1898, an act was passed by congress entitled “An act extending the homestead laws and providing for right of way for railroads in the district of Alaska, and for other purposes” (30 Stat. p. 409), the first section of which (48 U.S.C.A. § 371 note) is as follows: “That the homestead land laws of the United States and the rights im cident thereto, including the right to enter surveyed or unsurveyed lands under provisions of law relating to the acquisition of title through soldiers’ additional homestead rights are hereby extended to the district of Alaska, subject to such regulations as may be made by the secretary of the interior; and no indemnity, deficiency, or lieu lands pertaining to any land grant whatsoever originating outside of said district of Alaska shall be located within or taken from lands in said district: provided, that no entry
Section 10 of this latter act (48 U.S.C.A. §§ 461^-65) is in part as follows: “That any citizen of the United States twenty-one years of age, or any association of such citizens, or any corporation incorporated under the laws of the United States or of any state or territory now authorized by law to hold lands in the territories, hereafter in the possession of and occupying public lands in the district of Alaska in good faith for the purposes of trade, manufacture, or other productive industry, may each purchase one claim only not exceeding eighty acres of such land for any one person, association, or corporation, at two dollars and fifty cents per acre, upon submission of proof that said area embraces improvements of the claimant and is needed in the prosecution of such trade, manufacture, or other productive industry, such tract of land not to include mineral or coal lands, and ingress and egress shall be reserved to the public on the waters of all streams, whether navigable or otherwise: provided, that no entry shall be allowed under this act on lands abutting on navigable water of more than eighty rods: provided, further, that there shall be reserved by the United States a space of eighty rods in width between tracts sold or entered under the provisions of this act on lands abutting on any navigable stream, inlet, gulf, bay, or seashore, and that the secretary of the interior may grant the use of such reserved lands abutting on the water front to any citizen or association of citizens, or to any incorporation incorporated under the laws of the United States or under the laws of any state or territory, for landings, and wharves, with the provision that the public shall have access to and proper use of such wharves, and landings, at reasonable rates of toll to be prescribed by said secretary, and a roadway sixty feet in width, parallel to the shore line as near as may be
The evidence tended to show, and the court below found, that an Indian named Charles Dickson “had settled upon the uplands near the mouth of Ketchikan creek, in the district of Alaska, at the tide waters of Tongass narrows, and had occupied and possessed certain lands at said place, on which were constructed the houses in which he and his family lived, and from which, during certain portions of the year, he carried on and conducted the business of fishing, in the manner and in accordance with the usual customs of the Indians; that by such occupation and use of said uplands the said Charles Dickson, on the 17th day of May, 1884, and for many years prior thereto, was and had been in the actual possession of the uplands in and about the mouth of said Ketchikan creek, as aforesaid.” In
The ground upon which the court below gave its judgment may be seen from this excerpt from its opinion:
“We therefore have these propositions fairly well settled by the decisions: First, that the owner of the upland adjoining tide waters has littoral rights in the tide fiats and the approaches to deep water that are valuable, and are property rights of which he cannot be deprived without due compensation; and, second, that he may construct wharves upon these tide fiats running out from his uplands and in front thereof to deep water, unless he shall so construct them as to make his wharves a nuisance or a purpresture, and thereby to impede navigation and the exercise of those rights enjoyed in common by all people. It is also settled by high authority that the right to take fish in the waters of the sea, and even along the tide flats, is one common to all of the citizens. In what, then, are the property rights of the littoral owner greater or more sacred than the common right of all citizens to take fish?
“The right of the littoral owner to construct a wharf in front of his land is unquestioned, and it is clear that by such construction he deprives all others from the right to fish or in any other way to occupy the ground covered by his wharf. It is a matter of common information that driving piles and the construction of wharves thereon make the taking of fish beneath the wharf practically impossible. Are we to say, then, that the littoral owner’s right of way across the tide flats to deep water permits him to occupy the tide flats to deep water, permits him to occupy the tide flats with his wharf whereby the right of fishery is made impossible, and yet by cleaning the flats from debris and other material that gathers thereon, and making them practical for the use of his nets and for the purpose of drawing them across the same, and landing the fish upon the uplands, that he acquires no higher or better right in this behalf than that which inures in common to all citizens to fish and navigate the seas and rivers of our country ? It is believed that the principle which gives the littoral owner a right of way and the right to construct a wharf in front of his upland across the tide flats to the deep water may be also as*888 clearly and reasonably applied to a right of way that shall permit the littoral owner to exercise certain possessory rights as a right of way to the deep water of the sea over the tide flats, and that he may acquire certain possessory rights of such right of way by cleaning away the debris and material deposited thereon and making it a clear and proper roadway from the deep water to the upland over which he may pass and repass with his nets in the act of fishing, unobstructed and uninterrupted by the nets or other appliances of those who have a common right to take fish in the waters of the seas and rivers of Alaska.
“It appears from the testimony in this case that the nets commonly used by fishermen in taking salmon are from a hundred to several hundreds of fathoms in length. A reasonable right of way to deep water for the purpose of setting and bringing in these nets to the high land would certainly seem to be not less in width than the shortest nets used, viz., six hundred feet, and that in going over this right of way to and from the upland the complainants should not be impeded or obstructed by any others who may have the common rights of fishery at this point. That the possessory rights exercised over the right of way by the littoral owners in cleaning the débris, stumps, timber brush, and stones therefrom gives the complainants as clear a right thereto as if the same was covered by a wharf. It is not intended that this right of way shall give the complainants exclusive rights of fishery upon the tide flats, but it is intended that in pursuing their vocation in taking fish from the deep water or along the tide flats, in going and returning to and from their upland holdings, they shall be in no wise interfered with or hindered by other fishermen. It seems clear to the court that to this extent the property rights of the littoral owners must be protected by law, and that, as in the case of the construction of a wharf, any interference with the right of the littoral owner or any interference with the littoral rights to the upland owner may be prevented by the restraining order and injunction issuing from this court.”
We are of the opinion that the decree may and should be. affirmed without reference to the theory upon which the court below proceeded. It is well settled that the United
When, in 1884, congress undertook to provide a civil government for Alaska, it made of the territory a land district, located a United States land office at Sitka; put in full force and effect therein “the laws of the United States relating to mineral claims and the rights incident thereto,” with certain conditions not necessary to be mentioned, withholding therefrom the application of “the general land laws of the United States,” and expressly declaring “that the Indians 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, but the terms under which such persons may acquire title to such lands is reserved for future legislation by congress.” Section 8, Act May 17, 1884 (23 Stat. 24). There has been no “future legislation by congress” that applies to the present case, for this case involves no question of purchase or entry, and concerns only the right of occupancy and use of certain of the lands of the United States, including a small strip of tide land, as against a similarly asserted right on the part of third persons, which occupancy and use in no manner interferes with the right of navigation of the public waters. The prohibition contained in the act of 1884 against the disturbance of the use or possession of any Indian or other person of any land in Alaska claimed by them is sufficiently general and comprehensive to include tide lands as well as lands above high-water mark. Nor is it surprising that congress, in first dealing with the then sparsely settled country, was disposed to protect its few inhabitants in the possession of lands, of whatever character, by means of which they eked out their hard and precarious existence. The fact that at that time the Indians and other occupants of the country largely made their living by fishing was no doubt well known to the legislative branch of the government, as well as the fact that that business, if conducted on
The judgment is affirmed.