Lewis v. Johnson

1 Alaska 529 | D. Alaska | 1902

BROWN,- District Judge.

It is very earnestly contended on behalf of the defendant that he has acquired title in said land by prescription. It has long been the settled doctrine of the law that a statute of limitations does not run against the king or state, and that no prescriptive right or title can be acquired as against either. But it is claimed that, inasmuch as the defendant was in possession of a certain portion of the tide lands before and at the time the plaintiff acquired his title to the upland, there was a severance by reason of such occupation by defendant; and that, when plaintiff received his deed, he acquired no interest in the tide flats as a littoral or riparian owner. The question is presented with great ingenuity on the part of counsel for defendant ; so ingeniously, indeed, that it leaves one in some uncertainty as to the true doctrine in the case.

My view, however, upon the law of this question, is that no person can occupy any portion of the lands below high tide and by such occupancy acquire title thereto. They go upon such lands as trespassers, and remain trespassers until they are ejected by proper authority. It is my opinion that they can acquire no prescriptive rights whatever. But the question is whether the)'' acquire such possessory rights in the land which they actually occupy as would preclude any ohe save the United States from dispossessing them. If the government, when it parted with its title to the land under the trustee’s deeds, conveyed all interest to the shore line of Gas-tineau Channel, and persons holding such uplands, by reason of title thereto, have a right of way, unobstructed by others, from their uplands to deep water, and the right to wharf out to deep water on their approach to the same, then it would seem that a party who has acquired no interest in the land below tide water, and is there as a mere trespasser, could have acquired no such rights as would prevent the owner of the upland from occupying the tide flats as a littoral or riparian owner.

Under the rules of the Department of the Interior, the town-site trustee was charged with the duty of determining who of several claimants to a lot or lots was in rightful possession of such lot, and to make title to the rightful possessor. The plaintiffs and defendant were, as shown by the evidence in this case, each in possession of portions of the lots in dispute at the time the patent issued for the town site and when the deed was made by the town-site trustee. The Department of the Interior had sole jurisdiction over this matter, and, when title was finally made to the plaintiffs to the two lots 7 and 8, all rival claims of possession and right of possession were thereby determined. This defendant was, therefore, precluded from asserting any further right, unless he pursued such remedy as might then have been open to him. As he acquiesced in the judgment then rendered against him, the plaintiffs took the property as a whole, free from any claim whatsoever that the defendant might assert thereto.

It is believed that, if the plaintiffs had received a patent to the land in dispute before it was occupied by defendant, and defendant had retained the open and notorious possession for the requisite term of years, he would have thereby acquired title by prescription, and a deed thereafter made by plaintiffs would not have carried title as against the defendant ; the doctrine of severance in that case clearly applying.

I am free to say that I am not altogether clear as to the justice of this proposition, but I am inclined to believe that it is the law as applicable to cases of this kind, and the court will therefore grant the relief prayed for in the bill of complaint.

Judgment ordered for the plaintiffs.