97 F. 303 | D. Alaska | 1899
Thirty-nine persons, including the plaintiff, bring separate actions against the defendant, the object and purpose in each case being the same. The allegations common to all the pleadings are that the defendant, on the 6th day of February, 1899, made application in the United States land office at Sitka, Alaska, for a patent to the Bonanza lode claim, being United States survey No. 316; that the plaintiffs adversed defendant’s application for patent, and now bring their actions in this court in furtherance of said adverse, as provided by section 2326 of the Revised Statutes of the United States (30 U.S.C.A. § 30 and note). Each plaintiff claims to be the owner of one or more town lots situated within the exterior boundaries of the surveyed, platted, and (excepting only the lands embraced within mineral survey No. 316) patented town site of Juneau, in the district of Alaska. Ownership in these lots is claimed by plaintiffs by virtue of prior appropriation, occupation, improvement, and continued and undisputed and notorious possession of the nonmineral public lands of the United States in the district of Alaska, either by themselves in person or by their grantors. The plaintiffs allege that at the times mentioned in the various bills and complaints as the times when they took possession of these lots the same were-wholly unoccupied, unimproved, and unclaimed, and were a
By far the most serious question to be determined is whether the owner of a town lot in Alaska, unpatented, can adverse the application of one applying for a patent to a lode claim, under section 2325, Rev.St., and maintain any kind of an áction in support of such adverse, under section 2326 of the same statutes. If he cannot, then there is an end of these cases, unless the laws of Oregon, extended to this territory by an act of congress passed May 17, 1884,
There is nothing in this language tending to limit the provisions of section 2325 to rival claimants of mining property. On the contrary, a fair construction of the text would be that any person having a claim, other than a patented one, adverse to the applicant for patent, might adverse the same. And, keeping in mind the question before the court, the language quoted by Lindley does not detract frbm the conclusion above reached. “It is true that there • are no very distinct words declaring what kind of adverse claim
And this, it seems to us, is much more in harmony with the opinion of the supreme court as expressed in Mining Co. v. Campbell, supra, than the deductions advanced by Lindley. And it will be conceded that the right to adverse carries with it the right to maintain an action in any court of competent jurisdiction in support of the same. The last-cited authors assign the following reasons for the deductions above stated: “The policy of the law is to require all rights and equities to the premises sought to be pur
But one adjudicated case directly in point has been cited by either side to this controversy. This was the case of Bonner v. Meikle (C.C.) 82 F. at page 697. This case arose in Nevada, and was decided by Judge Hawley as recently as 1897. The facts before that court were so similar — in truth, so nearly identical — in all their details with the cases at bar that counsel for defendant concedes that, if that decision is binding upon this court, then his demurrer cannot be sustained in so far as it raises the question of the right of a lot holder to adverse an applicant for patent to mineral lands. Without conceding that the decision of that court is binding upon the district court of Alaska, the reasoning of the judge is admitted to be good, and to meet our full approval. And there is one additional fact in the cases at bar not appearing in the case above referred to, which would, in our opinion, give the plaintiffs the right to adverse the application of the defendant, even though we should fail to approve the decision in Bonner v. Meikle. We refer to the peculiar laws governing Alaska. Prior to May 17, 1884, civil law was unknown in Alaska. From the time the United States acquired the territory, in 1867, to the date referred to, the citizens from all parts of the United States had been coming here, locating mining claims, laying out town sites, dividing the same into lots, blocks, streets, and alleys, developing the former and improving the latter by the erection of substantial and expensive buildings for residence, mercantile, and manufacturing purposes. Where the mines were most productive and most numerous, there the towns were most extensive and the improvements most substantial. The one was dependent upon the other for existence. The one was as necessary to the development of the new territory as was the other. The title to all these lands, mineral and nonmineral, remained in the federal government. Those making the improvements had a possessory right or title only to the premises occupied and improved by them. The mineral claimant had no greater or different right or title to the premises oc
At the same time the congress extended the laws of the United States relating to mining, and expressly withheld the general land laws of the United States. A construction of this statute by the courts, under the pleadings in these cases, is necessary, beforq the land department can intelligently pass upon defendant’s application for a patent, for the reason that the plaintiff in nearly every case alleges peaceable possession of the premises in dispute antedating May 17, 1884, and in every case possession is claimed prior to any claim of the defendant; for I take it that, if the courts should hold that all those plaintiffs who were in possession of their respective lots prior to the date referred to are entitled to them as against the defendant, then their decision would be binding upon the land department, and all such lots would have to be excluded from the survey before the patent could issue to the defendant. And while this court may not be called upon at this time, under the pleadings, to construe this law, nevertheless the question necessarily arising upon the trial of these causes, and having been raised upon the argument of the demurrers, it is deemed to be not inexpedient to pass upon the question now. In our opinion, the language used is susceptible of but one construction; i. e. that congress guarantied to all persons in possession of lands in Alaska at that date the right ultimately to acquire a perfect title to the same. If anything less was intended, then the act is wholly meaningless. If congress meant only to guaranty to them undisturbed possession for' the time being, reserving the right to ultimately pass such laws as would confiscate the property to the gov
Different pleadings set up other grounds of complaint peculiar to their respective claims, — such as that, after the location of the Bonanza lode, the boundaries thereof were so changed as to include the lots in controversy;' that the end line of the Bonanza claim is at the mean high-tide line of Gastineaux Channel; and that, if it shall be so determined, the 300 feet on either side of the lode line would not include certain lots claimed to be within the survey of the Bonanza lode, etc. These and other issues having been tendered, the plaintiffs have a right to be heard upon them in the courts. The demurrer is overruled in so far as it denies the jurisdiction of the court to try the issues raised by the pleadings.
The remaining grounds of demurrer go to the form and sufficiency of the respective pleadings, and the demurrers must be sustained on these grounds. Not one of the bills or complaints is sufficient in form and substance. In Doe v. Mining Co. (C.C.) 43 F. 220, it is said “the proceeding directed and authorized by section 2326 of the Revised Statutes has no relation whatever to the action of ejectment or to any other common-law action.” .The action is purely statutory, with no form prescribed. The relief demanded being generally equitable in its nature, some of the courts
The plaintiffs in the cases before us are in possession of the premises, and suits in equity to quiet title should have been brought. Such suits have been brought in cases Nos. 872, 873, and 885, but they are deficient in form; the first two in several respects, and the last one in not alleging the citizenship of the defendant, as required by the rules of the supreme court. The remaining thirty-six cases are actions at law, although in each case the plaintiff admits he is in possession of the premises. For the reasons assigned, the demurrers in each case will be sustained.