1 Alaska 385 | D. Alaska | 1901
From the evidence it appears that Osborn, in November, 1898, on his way from
“Notice of Location Town Site at Steamboat Landing.
“Notice is hereby given that the undersigned claims the within described property, commencing at this the initial stake, thence running easterly one hundred feet to comer stake No. 1, thence northerly three hundred feet to stake No. 2, thence westerly one hundred feet to corner stake No. 3, thence southerly three hundred feet to the initial stake. Frank Osborn.
“Dated November 30, 1898.
“Witness: M. Dowd, F. Koltcboff.”
He then returned to Golovin Bay, where he remained for the winter, and where, he testifies, he was sick. In the spring of 1898, about May, one Pane delivered upon the tract 16 small logs for Osborn. While at Golovin Bay, Osborn made an arrangement with the defendants in this case to come to Nome and take possession of the ground for him, promising them one-quarter interest for their services. Pratt testifies he came in May, 1899, and established his tent on the tract staked by Osborn, and resided in that tent until August, 1899, when he went outside. Donnelly went outside also about September or October. Osborn first returned to the tract about June 28, 1899, and erected a tent near that of defendants, and resided in the same until some time in the fall, when he also left the property.
The evidence discloses that Osborn made no improvements on the large tract at any time, except to put up a
The evidence discloses that the plaintiff landed at Nome on the night of June 30, 1899, and at an early hour next morning, in company with other persons seeking to locate lots, he went back of all tents, buildings, stakes, and other signs of occupancy, except some large stakes several hundred feet back on the tundra, and which were by them taken for mining stakes, and there located the lot in question 50 by 100 feet square, erected his tent, staked and took exclusive possession of it. The lot so staked and located by the plaintiff was within the larger area theretofore located by Osborn. Plaintiff successfully kept off others who sought to enter upon his lot. The mining excitement was then at its height. Ships were continually arriving in the roadstead of Nome, and every foot of space on the Osborn tract farther in toward the beach and Front street was crowded with tents, including those of the defendants and Osborn, none of which, however, were on plaintiff's lot.
On July 13, 1899, Osborn made a deed of the west 25 feet of his tract to the defendants, being a tract 25 feet wide and 300 feet long. This deed embraced the west 25 feet of plaintiff’s lot, then in his possession. His occupation was then known to the defendants.
One Hendrikes claimed to have staked a lot lapping over on the plaintiff’s lot. Plis entry was subsequent to the plaintiff’s. He erected some kind of a structure thereon, and a suit was begun by the defendants herein against both Hend-rikes and this plaintiff before the United States Commissioner Shepherd to recover their rights. This was prior to the date of the arrival of the judge of this court at Nome on July 23, 1900. An agreement was entered into by plaintiff as
Defendants claim title through their deed from Osborn. Osborn, however, had no title to the property in dispute. The act of March 3, 1891 (26 Stat. 1095, c. 561), entitled “An act to repeal timber culture laws, and for other purposes,” extended the town-site laws to Alaska. It also provided, in sections 12, 13, and 14 [U. S. Comp. St. 1901, pp. 1467, 1468], that any citizen of the United States “now or
His notice, however, shows that it was for town-site purposes, and, that being admitted, his rights are to be determined under the provisions of section n of the act of March 3, 1891 [U. S. Comp. St. 1901, p. 1467], and section 2387, Rev. St. [U. S. Comp. St. 1901, p. 1457]. This section provides that, “whenever any portion of the public lands has been or may be settled upon and occupied as a townsite,” the corporate authorities may enter “the land so settled and occupied in trust for the several use and benefit of the occupants thereof,” etc. The person claiming under this law must both settle upon and occupy the lot, and Osborn did neither. His camping over night on the ground while on a journey was neither an act of settlement nor occupancy. The presence of the defendants upon the ground from May ■to September, dwelling in a tent, together with a failure to show any other act of occupation or possession, is not sufficient to initiate a use, occupation, or possession for Osborn. His own presence on the land from June 28th to September, taken together with the fact that he only occupied a tent, like dozens of other persons, on the same tract, and that he left and abandoned the land in September, and made no permanent improvements thereon, and, so far as the evidence shows, never has either occupied or used it since, is not sufficient to show a settlement or occupation such as will justify the court in sustaining his title over that of plaintiff.
There is some evidence on the part of the defendants to ihow that Osborn laid claim to this property under section 12 of the act of March 3, 1891 [U. S. Comp. St. 1901, p.
This court will sign findings of fact, conclusions of law, and a decree for the plaintiff.