202 F. 625 | 9th Cir. | 1913
This is the second appeal. The cause was reversed on the first, and remanded for such further proceedings as to the trial court might seem proper. The District Court allowed an amendment of the complaint in such manner as to show that the suit was instituted in support of an adverse claim, entered in the Land Office, to the application of the defendant, Solomon Ripinsky, for a homestead patent in pursuance of survey No. 573. A new trial was had, 'resulting in a decree that plaintiffs take nothing by the bill of complaint; that defendant is the owner of the following parcels of land,- comprised by survey No. 573, namely, a parcel 100x150. feet in area in the extreme east end off said
The costs on appeal were awarded by this court. Such award constituted part and parcel of its judgment in reversing the cause brought up. It became a finality, and when the cause went down the court below was bound to observe the injunctions of the mandate. The judgment was binding on the court below, and it had no power or authority to revise or modify it, or to do otherwise than to enter it. as the judgment of that court. From such judgment, there was no second appeal to this court. It is almost axiomatic that none of the questions before the court and determined on writ of error or appeal can be heard or re-examined if the case be again brought up. To allow this would lead to endless litigation, and the end of the law could never be reached. 2 Ency.U.S.Sup.Ct.Reports, p. 412, and notes, pp. 412, 413, 414. In this case the costs on the appeal were a matter determined by this court, and a second appeal as to these falls clearly within the principle stated, and is not allowable.
As it respects the restitution awarded by the .District Court, that was a relief very properly granted, under the condition of the record at that time. The decree ,of the trial court stood reversed and annulled, and the appellant was entitled to have that returned to him which was taken away by an erroneous judgment. Northwestern Fuel Co. v. Brock, 139 U.S. 216, 220, 11 S.Ct. 523, 35 L.Ed. 151, is decisive of the question. Cause No. 1,993 should therefore be affirmed, with costs against the appellants.
The statute under which this proceeding is now pending is that of May 14, 1898 (30 Stat. 409, 413, 414, c. 299), extending the homestead laws of the United States to the territory of Alaska, as amended by the act of March 3, 1903 (32 Stat. 1028, 1029, c, 1002 [48 U.S.C.A. § 371]). By that statute, when application for patent is made, under the homestead law, and notice given, any person having an adverse interest in or claim to the land for which patent is sought may, within a time fixed by the act, file an adverse claim setting forth the nature and extent thereof, and within 30 days thereafter may begin an action to quiet title in a court of competent jurisdiction in the district of Alaska, after-which it is declared: “No patent shall issue for such claim until the final adjudication of the rights of the parties, and such patent shall then be issued in conformity with the final decree of the court.”
In the case at bar the defendant, Ripinsky, is claiming by right of a homestead entry, with possession dating back to about December 2, 1897, derived from Sarah Dickinson. On the other hand, complainants are claiming possession with a view to obtaining title from the government under the town-site statutes. Lands in Alaska may be entered for town-site purposes, for the several use and benefit of the occupants, by such trustee or trustees as may be named by the Secretary of the Interior for that purpose, such entries to be made under the provisions of section 2387 of the Revised Statutes (43 U.S.C.A. § 718) as near as may be, and, when such entries shall have been made, it is made the duty of the Secretary of the Interior to provide for the proper execution of the trust. 26 Stat. 1099 (48 U.S.C.A. § 355). Section 2387, Revised Statutes, provides that whenever any portion of the public lands has been or may be settled upon and occupied as a town
The plaintiffs by their bill of complaint aver settlement and occupancy, dating from December, 1897, and prior in time to the occupancy of the defendant, of the larger portion of the lands embraced in defendant’s homestead survey No. 573, and that they have applied to the proper officers in the United States Land Office for a survey of such lands for the purpose of entering the same as a town site under the laws of the United States.
The question is again presented here, as it was on the first appeal, whether the plaintiffs were entitled to join in a bill of complaint in aid of the contest against the issuance of a patent to the defendant under his homestead application therefor. Ripinsky v. Hinchman, 181 F. 786, 105 C.C.A. 462. As the cause was then presented, which was in the way of an ordinary suit to quiet title, it was held that such joinder was not permissible. The case now comes here in a very different aspect. The complaint shows a cause in aid of the complainants’ contest in the Land Office against the claim of Ripinsky for a homestead patent.
It is undoubtedly proper and regular under the statute for the settlers and occupants to petition the Secretary of the Interior to name a trustee or trustees to enter the lands so occupied for town-site purposes, who, when so named, would become the trustee or trustees for all, and thereafter administer the trust for all. There exists no good reason why they should not also join in a suit for contest against the issuance of patent prior to the time when a trustee or trustees may be named by the Secretary of the Interior for making such entry for town-site purposes. After the
This brings us to a consideration of the. relative rights of the parties contestant. The manner and character of plaintiffs’ settlement, occupancy, and holding are sufficiently set out in the opinion heretofore rendered (181 F. 789, 105 C.C.A. 462, et seq.), and it is unnecessary that we should do more at this time than to refer to what is there stated upon the subject, except to say that a letter was offered in evidence on the last trial, from the Commissioner of the General Land Office to the United States Surveyor General of Alaska, whereby it appears that George Vogel and 57 other settlers at Haines petitioned for a survey of the boundaries of the town site, which petition had been favorably considered, but advising that further action in the way of making a survey “should be contingent upon the action that may be taken upon a homestead entry that may be made by Sol Ripinsky under survey No. 573.” This letter bears date July 17, 1905. It is apparent, therefore, that plaintiffs had proceeded as far as they could in the Land Office when the contest was brought on. Their rights for the establishment of a town site were still initiatory, and had not proceeded further than the filing of a petition for an official survey for a boundary thereof. They had in no way as yet established a right to a patent from the government.
Let us now consider the rights of Ripinsky, the defendant, as acquired under his homestead application, to entitle him to a patent, and determine whether they are superior to the rights of complainants, and, if so, in what respect.
In 1878 George Dickinson, at the time married to an Indian woman named Sarah, being the representative of the Northwest Trading Company, established a trading post at Portage Cove, now known as Haines. He located a tract of land for. the company for trading purposes, and.
Whether Ripinsky went into possession at once is a matter in dispute; but a little later William Dickinson forcibly entered, and maintained possession with force until Ripinsky compromised with him by paying him $50, and acquired a deed from him bearing date December 21, 1897, containing the following description: “Both landings and fifteen acres of land adjoining the Presbyterian Mission grounds, situate at Haines Mission, Alaska, except one acre of land claimed by J. Dalton.”
It is claimed by Ripinsky that he took immediate possession of the property upon receiving the deed from Mrs. Dickinson, ran a two-wire fence about the land, and has continued in possession ever since, except as dispossessed by the complainants without right.
The real controversy hinges about the question of pri- or possession as between the parties litigant. We are but little concerned with the manner of .conveyance from the
Ripinsky relates that when he came to trade with Mrs. Dickinson — who was an Indian woman, a native of Alaska, of superior intelligence, with sufficient knowledge of the English language to act as interpreter for the natives— she told him that she had 16 acres of land, less one acre which she had sold to Dalton; that George Dickinson told him, previous to his death, that he had 16 acres, and showed him the posts established about the boundaries He attempted to locate the position of the stakes on the map, Plaintiffs’ Exhibit 1, which was offered in evidence. One he fixed as being near Sixth avenue, but was indefinite about it, and two others he located at the east end of the tract. He further relates that, right after he obtained the deed from Mrs. Dickinson, he ran a fence, consisting of two barbed wires and posts, around the tract; that his brother and some Indians did 0the work, after he had shown them the lines, and that the fence extended back from the beach westerly 2,400 feet, a little more or less, and that there was not a soul upon the tract other than himself and those working for him at the time; that the fence remained until the rush of people came in the fall of 1898, who overran the property, tore the fence down, and began their settlement; and, further, that he protested to these people that they were upon his premises. Later, to wit, in 1903, he sent registered letters to persons exercising possession, warning them off, and of his claim.
Ripinsky filed his homestead location June 23, 1903, and an amended notice December 18, 1905, whereby he claimed actual, personal, and continuous occupation and settlement since the month of December, 1897. In the meantime survey No. 573 was made, which was approved by the Surveyor General of Alaska, and later duly filed in the United States Land Office.
On cross-examination Ripinsky states that George Dickinson first showed him the corners of the tract in 1886, and said he was going to clear it, and that he did not know whether that tract contained a good deal more territory than the one in question. He further states that, in showing him the land, Dickinson went along up the Indian trail,
Then he said, “We had Adolph;” that prior to the fall of- 1898 the fence was nearly all standing, and that in the summer or fall they began tearing it down, but that nearly all the fence was standing in the summer of 1898, and that it was a two-wire fence. When asked why he did not join onto the Mission fence, he answered, “There ought to be a trail so people could walk.” It further appeared that he brought an ejectment in the District Court of Alaska, at Sitka, in 1899, against several of the settlers, alleging prior occupancy and possession, and was defeated.
M. Ripin, a brother of defendant, Ripinsky, but having bad his name changed, testified that he fenced the tract off from Blind Isaac’s, called Dalton street, “away up around and down to the Mission”; that he did not build
On cross-examination he states that a white man whom they called “Adolph” and a half dozen natives helped him to build the fence; that he guessed the natives were yet in Haines; that it must have been the 10th or 12th of December when he built the fence; that he helped two days in building the fence, and guessed that it took the parties two weeks to build it; that he came over from Chilkat to Haines every other day and saw the natives building the fence; that the fence was there in the spring of 1898, and part of it in the summer — it was in the summer that people began to break it down; that there is no sign of it there now, and has not been for eight or nine years; that his brother got the wire with which to build the fence from Mr. Warne, the Presbyterian missionary, and that he saw the corner post over by the sawmill. When asked for a description of the post, he answered that he guessed it was a “regular post from a tree,” and that when he saw it the fence had been built right up to it. Being further asked, “Now, you don’t know whether there was a corner post there before the fence was built, or not?” he answered, “I guess there wasn’t.” He further states that he saw the
Franklin A. Rogers testifies that he was a resident of Haines from May 8 to the last of November, 1896, and from April, 1897, to January, 1898, and off and on to May of that year; that when he went to Haines in 1896 he was informed that the two buildings and ground belonged to Mrs. Dickinson, and that it was the old trading post while Mr. Dickinson was alive; that they lived and had a store in the building next to the Mission, that the second one was the warehouse, and that all the time he was there he never heard it called by any other name than the Dickinson property. He says that Mrs. Dickinson and William told him that it extended from the north line of the Mission north to Blind Isaac’s, less the corner of one acre sold to Dalton, and, from the' water on the east, west to embrace 15 acres, and that he went over with Solomon Ripinsky what he said included 15 acres; that the land would have to run from tide water west about 2,500 feet to make 15 acres; that he does not know whether the Dickinson tract was ever fenced or not, but that a portion on the east had been used for a garden and was fenced when he went there in 1896; that he assisted Ripinsky in negotiating the purchase from Mrs. -Dickinson; that he had the deed recorded on December 13th; that on the 21st William, the son, had broken into the store building, and that he (witness) brought about a compromise between him and Ripinsky, when William gave the latter a deed to his interest in the premises; that at the time of the transaction with Ripinsky W. W. Warne had a piece of land staked off, which had a notice of claim posted on it; that witness staked off 200x200 feet for himself, and put up a notice which bore date December 7th, and was recorded December 18th; that when he returned from Dyea, on December 19th, he told Warne that Ripinsky had bought Mrs. Dickinson’s right; -that he (witness) staked out a piece for Miss Manning; that after he had been around the tract with “Billy” Dickinson, he told Mrs. Campbell (née Manning) that part of her piece, his own, Mr. Warne’s, Miss McPherson’s, and four or five other claims were on the land Mrs. Dickinson had sold to Ripinsky, and told Warne that Ripinsky could claim the “whole business,” and that he told A1 James and one other party
William Dickinson testifies that his father took up ground for the Northwest Trading Company, 40 acres, and also 160 acres for the Mission, the former of which adjoined the latter on the north; that his father put out the posts around his 40 acres; that one of the officers came off the Jamestown and surveyed it, and he and his father put up a single wire fence about it; that they put out three posts —four including the rock at the Mission grounds; that the galvanized wire was put up, and the trees blazed along the way to show the lines; that two posts were set at the west end, one at each corner; that one of them was about six feet long, and close to the Vogel mill, about 100 to 150 feet towards the mountain back of Haines; that he and his mother sold the property they claimed at Haines to Ripinsky; and that since they sold, at the request of Ripinsky, he (witness) showed Ripinsky the stakes that his father set out.
On cross-examination he relates that the survey for the Trading Company was made in 1878 or 1879, when he was 14 or 15 years old, though a little later he says he was but 11 or 12 years old; that the clearing went farther back than the fence around the garden — -that is, beyond where Vogel’s building now is — which is on Second avenue; that the tract that was cleared was 300 feet wide, more or less, from the beach; that the posts that were put out by his father and the surveyor included the same tract since conveyed to Ripinsky, with the exception of the Dal
In refutation of this testimony, tending to show the construction of the alleged inclosures about this tract of land, are many witnesses; one class testifying that they went upon the premises beginning December 14, 1897, and continuing through December of 1897 and January and February of 1898, and made lot locations, and settled upon and occupied the premises for dwelling and business purposes. To such an extent was this lot location and settlement carried on that a survey was made and a town-site map prepared, which bears date January 29, 1898, known as the “Fogelstrom Map.” This aside from the testimony of Rogers, whereby it appears that Miss Manning and others located certain lots upon the tract in question for trade and business purposes, which they refused to relinquish, notwithstanding the claim of Ripinsky. And another class testifying that, although they were upon this tract in December, 1897, and in January and February, 1898, and throughout that year, they saw nothing of any fencing about it, except such as inclosed the garden and along the Mission tract, extending westerly to Second avenue.
It would be strange, if such an inclosure had been constructed as Ripinsky claims, that so many witnesses could
It is necessary, in maintaining right to a patent under homestead entry, to show that the claimant is holding by right of prior and continued possession, unless dispossessed by persons of inferior right. The evidence touching the possession of this tract of 15 acres prior to the entry of Ripinsky is very meager. The only testimony of actual occupancy, outside of the buildings and the garden spot, is that of William Dickinson to the effect that the "land was surveyed, the lines blazed, posts set at the corners, and a galvanized wire stretched about the entire tract. He was but 11 or 12 years old at the time this was done, and thinks that the survey contained 40 acres. When he showed Ripinsky the corners, he says he saw some pieces of the old wire hanging from one or two of the posts, and some along through the brush; but Ripinsky testifies to no such condition.- Whether William is right about it or not, it is very evident that this fence was not maintained. The tract, outside of the garden spot and a little clearing to -the west, was heavily wooded, and no clearing was attempted of that part, and apparently no use made of it whatever. That fence is supposed to have been constructed in 1886 or 1887, 10 or 11 years before the sale to Ripinsky and his alleged occupancy. It fell into such disuse that nearly, if not quite, the last vestige of it had 'disappeared. The corner posts, if rightly located, only remained, and it is problematical whether they were really identified. Outside of the survey, and the construction of this single wire fence, there is no evidence whatever of the exercise of any ownership or possession by Mrs. Dickinson or her predecessors over this part of the tract in question.
Now, it may be, but it seems hardly credible, that Ripinsky constructed the fence he describes; but, if so, it was subsequent to a time that others — numerous others — were laying claim to parcels of the tract, and were in occupancy
We find that the possession of numerous others was prior to Ripinsky’s, and has so continued, so that it cannot be maintained that he has a prior and superior right. Not having such right, he is without that quality of possession which will support his homestead entry. We find, however, that he acquired and has maintained possession of the land immediately about his building, including the garden spot and somewhat to the west, and the cleared land to the eastern boundary of the town of Haines, as shown by the map prepared by Davidson, introduced in evidence and marked “Plaintiffs’ Exhibit 1.” The tract of which he has been thus possessed may be described by beginning at corner No. 1 of survey No. 573, and running thence north 14° 20' east 151.8 feet to corner No. 2; thence west 283.4 feet to the east boundary of the town of Haines as shown by the Davidson map, “Plaintiffs’ Exhibit 1;” thence southwesterly along the east boundary line of said survey to a point due west of the place of beginning; thence east 269.6 feet to the place of beginning.. As to this tract Ripinsky is entitled to his patent. As to the balance of his claim, he~ must fail. The plaintiffs have established no right to a patent from the government in any respect.
Costs will be awarded plaintiffs and appellants Hinchman et al. in the court below, both trials, and upon this the second appeal in cases Nos. 2,045 and 2,015, but not in the first appeal, the costs wherein were awarded to defendant and appellee Ripinsky by the former judgment of this .court; and costs will be awarded defendant and appellee Ripinsky in case No. 1,993, both in the court below and upon this appeal.