76 F. 476 | D. Alaska | 1896
The plaintiffs allege that they are the owners, by claim, possession, and occupation, of a certain lot of ground at
The court feels obliged to dissent from all of these propositions. Whatever conflict of authority may heretofore have existed in regard to littoral rights of upland owners in adjoining tidelands, the law may now be considered as finally settled by the courts of last resort both in England and this country. Under comparatively recent decisions of the house of lords, the law in England now is that the owner of land fronting on a navigable river, in which the tide ebbs and flows, has a right of access from his land to the river, and may recover compensation for the cutting off of that access by the construction of public works authorized by parliament by an act which provides .for compensation for injuries affecting lands, “including easements, interests, rights, and privileges in, over, or affecting lands.” 25 & 26 Viet. c. 93, § 4. The right thus recognized, however, is not a title in the soil below high-water mark, nor a right to build thereon, but a right of access only, analogous to that of an abutter upon a highway. Buccleuch v. Board, L.R. 5 H.L. 418; Lyon v. Fishmongers’ Co., 1 App.Cas. 662. It has been further held that the rules here laid down must apply to every country where the same general law of riparian rights prevails, unless excluded by some positive rule or binding authority of the lex loci. Railway Co. v. Pion, 14 App.Cas. 612, 620, affirming 14 Can. Sup. Ct. 677. The same rules undoubtedly apply to navigable arms of the sea. The law laid down in these cases has been quite recently affirmed by the supreme court
After a mature consideration of the subject, the court is not prepared to hold that a bona fide claimant, in actual possession and occupation of a lot of ground on the public lands, which abuts on tide water, does not take all the littoral or riparian rights of an owner in fee. Reason and equity are on the other side of the question. For a long period of years the federal government has not only conceded to American citizens the right to enter upon, possess, and improve public lands, but it-has encouraged them so to do, by reserving to the bona fide settler the first right to a patent to the land so possessed and improved by him. This policy has obtained in both the legislative and executive branches of the government, and has met the approval of the courts. Clements v. Warner, 24 How. 394; Shepley v. Cowan, 91 U.S. 330; Ard v. Brandon, 156 U.S. 537, 15 S.Ct. 406. It therefore partakes of the nature of a guaranty on the part of the United States that the actual settler and bona fide occupant, within reasonable limits, may perfect his title in fee against all comers, whenever the lands are opened by congress for entry at the land offices. Lands are valuable only for the uses that may be made of them. They may be valuable for residential purposes, for the erection of business blocks, as sites for manufacturing plants, for the water powers afforded by streams running through them, for the timber growing thereon, for parks and places of summer resort or recreative outings, for agricultural and grazing purposes, and for the littoral and riparian privileges appurtenant or incident to them. The proposition that the courts are not open to the owner in fee for the preservation of any of the rights incident to landed property • above mentioned would be dismissed by every court in the civilized world, without the grace of a moment’s consideration. What tenable ground is there.from which to assert that the bona fide settler on and in actual possession of a piece of public land has not an equal right in the forum of the court? And, if he may maintain any