5 Alaska 180 | D. Alaska | 1914
What, then, was the legal status in 1900 of the tideland in controversy?
Plaintiff claims that it then belonged to it. The basis of plaintiff’s claim is this:
(a) Plaintiff claims that the land in dispute belonged to it because by the act of May 17, 1884, it was provided that Indians or Others should not be disturbed in the possession of lands then in their actual use or occupation, or claimed by them.
One may use or occupy lands and yet not claim them; one may claim lands and yet not use or occupy them. I think the last “or” in that statute must be read as “and,” for certainly it is unthinkable that Congress intended that a person was ever afterwards to be protected, on account of the fact that in 1884 he claimed a piece of land. In the case of Sutter v. Heckman, 1 Alaska, 188, 199, Judge Brown, formerly of this court, said:
“It is believed that tbe language used in tbe act of Congress of May 17, 1884, ‘used or occupied,’ limits tbe following words, ‘ox-claimed by them,’ used in the same connection. Clearly Congress never intended that an Indian or white man might say to his neighbors, ‘I claim a hundred thousand acres, or a million acres, or any other amount of land, between certain boundaries or natural landmarks, as my individual property,’ and that such a claim would be protected by said acts, and made sacred to the rights of the claimant as a property right.”
Thus construing the word “or,” the statute would read:
“Indians and other persons shall not he disturbed in the possession of lands in their use or occupation and claimed by them.”
But the statute is simply a prohibition against any one disturbing the possession if any such possession exists; it is not
In Carroll v. Price (D. C.) 81 Fed. 143, Judge Delaney, formerly of this court, virtually construed the statute in the same way in his instructions to the jury. Carroll, in that case, claimed under the act of 1884, but the charge was:
“If you find from the evidence that the plaintiff and his grantors have been in the continuous occupancy and possession of the tract located by Powers in 1881. * * * On the other hand, if you find that the plaintiff did not have such possession, or that the ground was unoccupied, unpossessed, and unimproved public land when Price took possession of it in 1895, then he had the right to go on, locate, and occupy it, and the defendants, as his grantees, are entitled to your verdict.”
In 1884 plaintiff had use, occupation, and claim of the tideland in controversy, but after 1894 it did not continue the use or occupation of the tideland in controversy. How, then, was it possessed of any right to keep others off?
Plaintiff contends that it had color of title, and, being in foot possession of the tideland covered by the wharf, it had constructive possession to the limits of the paper title. As a propositan of law, this may be conceded, and that leads to the inquiry: “Did plaintiff have color of title?”
It is claimed that plaintiff's color of title was this, to wit: The location notice filed in the office of the United States commissioner at Juneau in 1881 by M. W. Murry. The answer to this is twofold:
(I) There is no evidence that prior to 1898 they claimed under or had anything to do with Murry.
(II) If Murry were but a trustee for them, so that the location notice is really their location notice, yet a location notice is not color of title. •
Color of title is that which purports to be title, but is no title. It is not title, but only the semblance of title. It must be in form a conveyance of title. One cannot make his own color of title. A location notice is not a conveyance. It is a mere claim.
During all this time plaintiff has neither used nor occupied the tideland in question, except that it collected some rent from' Receiver Davidson, and permitted one Messerschmidt to land some wood there, and has paid taxes. This is insufficient. The permission to Davidson and Messerschmidt is on a par with the proposition of the tramp to the slow-witted person that the former would give the latter one-half of all the logs floating down the Yukon past Dawson which the latter might catch; while as to the payment of taxes, that is only a circumstance evidencing a bare claim. It evidences neither use nor occupation.
As to the claim of plaintiff that defendant is preventing or interfering with his access from the uplands, the proof is substantially like that in the case of McCloskey v. Pacific Coast Co. Whatever littoral rights plaintiff may once have had have been cut off by conveyances and by the street.
Findings and decree for defendant.