Appellant without authority settled on a tract of land on
Afognak Island, Alaska, prior to 1891, and erected a cannery. After
the Act of March 3, 1891, 26 Stat. 1100, it applied for a survey of
the land occupied by it and deposited the money therefor. The
survey was made, approved, and forwarded to the Commissioner of the
General Land Office. On December 24, 1892, the President, under
provisions of the said Act of March 3, 1891, by proclamation,
declared the whole island reserved for fish culture. The survey was
rejected on that and other grounds, and appellant was ordered to
leave the island, which it did. Thereupon it sued in the Court of
Claims for value of its improvements and for loss of business. The
claim was disallowed except for cost of survey. In affirming the
judgment,
held that:
The mere settlement upon public lands and making improvements
thereon without taking some steps required by law to initiate the
settler's right thereto, is wholly inoperative as against the
United States.
This rule is not affected as to lands in Alaska by any
provisions of the Act of May 17, 1884, 23 Stat. 24, providing a
civil government for Alaska.
Although the occupation and cultivation of public lands with a
view to preemption confers a preference over others in the purchase
of such lands by the
bona fide settler which will enable
him to protect his possession against other individuals, it does
not confer any vested rights as against the United States.
Under the preemption laws, a purchaser availing of the
provisions of the Act of March 3, 1891, to purchase land in Alaska
acquires no vested rights by the mere deposit for the survey or
until the purchase price is paid to, and receipt given therefor by,
the proper land officer, and until this is done, Congress may
withdraw the land from entry and sale although inchoate rights of
settlers may be defeated.
The provisions of § 14 of the Act of March 3, 1891,
authorized the reservation of the land for fish culture, and the
exercise of this reserved power terminated all the rights of one
who as a mere trespasser had settled thereon and made improvements
prior to the passage of the act.
This is an appeal from a judgment of the Court of Claims,
rejecting a claim of the Russian-American Packing Company
Page 199 U. S. 571
for the value of certain improvements erected by it on the
Island of Afognak, off the coast of Alaska. The packing company was
incorporated in 1889 under the laws of California for the purpose
of carrying on the business of packing salmon on the Island of
Afognak, and for that purpose purchased and shipped materials for a
cannery and buildings to be used in canning salmon, and also,
without authority or license from the United States, took
possession of a tract of about 159.52 acres of land, and erected
thereon buildings, machinery, etc. at a cost of about $45,000.
Prior to this time, no one had been in possession of this tract.
Claimants remained in possession for four years, and until December
24, 1892, and carried on a canning business at a profit of about
$100,000, about $35,000 of which was subsequent to the passage of
the Act of March 3, 1891.
On April 1, 1892, claimant applied to the Surveyor General for a
survey of the tract, under the act of 1891, and deposited in the
subtreasury at San Francisco $433.80, as the estimated cost of such
survey. The survey was made, was approved March 15, 1893, and
forwarded to the Commissioner of the General Land Office. Prior to
December 24, 1892, the tract so occupied had not been reserved by
the United States for fish culture or any other purpose, nor had
the same been purchased or applied for by any other person. On that
day, the President issued a proclamation declaring the whole island
reserved for the purpose of establishing thereon a United States
fish culture station, and warned all persons to depart therefrom.
In July, 1893, claimant was informed of this proclamation by agents
of the government, and ordered to leave the island, which it did,
and has not returned thereto. On January 15, 1895, the Commissioner
of the General Land Office, in passing upon the survey transmitted
to him, addressed a letter to the Surveyor General calling
attention to the President's proclamation, and rejected the survey
on that ground, as well as upon the ground that the survey was not
in square form, as required by statute. No appeal was taken from
his decision.
Page 199 U. S. 572
The court found as a conclusion of law that claimant was not
entitled to recompense for the value of the improvements, nor for
the loss of profits arising from its removal from the island, but
was entitled to recover the amount deposited for the expense of the
survey.
Page 199 U. S. 575
MR. JUSTICE BROWN delivered the opinion of the Court.
It is well understood that the mere settlement upon public
lands, without taking some steps required by law to initiate the
settler's right thereto, is wholly inoperative as against the
United States.
Landsdale v. Daniels, 100 U.
S. 113,
100 U. S. 116;
Maddox v. Burnham, 156 U. S. 544;
Northern Pacific R. Co. v. Colburn, 164 U.
S. 383.
Petitioner, however, bases its right to recover upon certain
statutes which, it is insisted, recognized the right of the
petitioner to settle upon this island and make the improvements in
question. The first of these is the Act of May 17, 1884, "providing
a civil government for Alaska" (23 Stat. 24), wherein it was
enacted by section 8
"that the Indians or other persons in said district shall not be
disturbed in the possession of any lands actually in their use or
occupation, or
now claimed by
Page 199 U. S. 576
them, but the terms under which such persons may acquire title
to such lands is reserved for future legislation by Congress."
It is quite clear that this section simply recognized the rights
of such Indians or other persons as were in possession of lands at
the time of the passage of the act, and reserved to them the power
to acquire title thereto after future legislation had been enacted
by Congress. As the petitioner did not take possession of this land
until five years after the act of 1884 was passed, it was a mere
trespasser, and not in a position to avail itself of any contract
which might be extorted from the language of the act in favor of
the Indians or other persons who might have been in possession of
the land at the passage of the act.
That this act was intended merely as a preliminary to future
legislation and for the temporary protection of Indians and other
settlers is made more manifest by section 12 of the same act:
"That the Secretary of the Interior shall select two of the
officers to be appointed under this act, who, together with the
governor, shall constitute a commission to examine into and report
upon the condition of the Indians residing in said territory, what
lands, if any, should be reserved for their use, what provision
shall be made for their education, what rights by occupation of
settlers should be recognized, and all other facts that may be
necessary to enable Congress to determine what limitations or
conditions should be imposed when the land laws of the United
States shall be extended to said district."
So far from Congress' intending by this act to invite a
settlement upon public lands in Alaska, a contrary inference arises
from a subsequent clause of section 8 that "nothing contained in
this act shall be construed to put in force in said district the
general land laws of the United States."
We come now to the Act of March 3, 1891, 26 Stat. 1095, 1100, c.
561, section 12 of which provides:
"SEC. 12. That any citizen of the United States twenty-one years
of age, and any association of such citizens, and any corporation
incorporated under the laws of the United States or of any state or
Territory of the United States, now authorized
Page 199 U. S. 577
by law to hold lands in the territories, now or hereafter in
possession of and occupying public lands in Alaska for the purpose
of trade or manufactures, may purchase not exceeding one hundred
and sixty acres, to be taken as near as practicable in a square
form, of such land at two dollars and fifty cents per acre. . .
."
Section 13 provides for a survey, a deposit of the cost of such
survey, a report to the Commissioner of the General Land Office,
and an approval by him of the survey, and for the final issue of
the patent. Section 14 of the act is important, and reads as
follows:
"SEC. 14. That none of the provisions of the last two preceding
sections of this act shall be so construed as to warrant the sale
of any lands belonging to the United States . . . to which the
natives of Alaska have prior rights by virtue of actual occupation,
or which shall be selected by the United States Commissioner of
Fish and Fisheries on the Island of Kodiak and Afognak for the
purpose of establishing fish culture stations, . . . and there
shall be reserved in all patents issued under the provisions of the
last two preceding sections the right of the United States to
regulate the taking of salmon and to do all things necessary to
protect and prevent the destruction of salmon in all the waters of
the lands granted frequented by salmon."
Even if section 14 had not been enacted, it would not follow
that petitioner, by sections 12 and 13, became entitled to a patent
of the United States by procuring a survey of such lands. We have
had occasion in several cases to hold that, although the occupation
and cultivation of public lands with a view to preemption confers a
preference over others in the purchase of such lands by the
bona fide settler, which will enable him to protect his
possession against other individuals, it does not confer a vested
right as against the United States in the land so occupied. Such a
vested right, under the preemption laws, is only obtained when the
purchase money has been paid, and receipt from the proper land
officer given to the purchaser.
Page 199 U. S. 578
Until this has been done it is competent for Congress to
withdraw the land from entry and sale, though this may defeat the
inchoate right of the settler.
Frisbie v.
Whitney, 9 Wall. 187. When this payment is made,
the other prerequisites having been complied with, the settler is
then entitled to a certificate of entry from the local land office
and ultimately to a patent.
Yosemite Valley
Case, 15 Wall. 77,
82 U. S. 87;
Campbell v. Wade, 132 U. S. 38;
Shiver v. United States, 159 U. S. 491.
The case of
Lytle v.
Arkansas, 9 How. 314, is much relied upon by the
petitioner and is carefully criticized and distinguished by Mr.
Justice Field in the
Yosemite Valley case. In that case,
proofs were taken and decided both by the register and the receiver
of the land office to be sufficient, and the money was paid by the
claimant, and received by the commissioner; but, through misconduct
or neglect, the register refused afterward to permit claimant to
enter the section, and it was held that the right of the preemptor
thus acquired could not be impaired by a selection of land by a
subsequent act of Congress. Commenting on this case, Mr. Justice
Field observed in the
Yosemite Valley case (p.
82 U. S. 93)
that:
"The whole difficulty in the argument of the defendant's counsel
arises from his confounding the distinction made in all the cases
whenever necessary for their decision between the acquisition by
the settler of a legal right to the land occupied by him as against
the owner, the United States, and the acquisition by him of a legal
right as against other parties to be preferred in its purchase when
the United States have determined to sell. It seems to us little
less than absurd to say that a settler or any other person, by
acquiring a right to be preferred in the purchase of property,
providing a sale is made by the owner, thereby acquires a right to
compel the owner to sell, or such an interest in the property as to
deprive the owner of the power to control its disposition."
But if there were any doubt regarding the rights of the
petitioner in connection with the above case, they are completely
resolved by the language of section 14 of the act, which
declares
Page 199 U. S. 579
that the provisions of the preceding sections shall not be so
construed as to warrant the sales of any lands belonging to the
United States which shall be reserved for public purposes, or
selected by the Commissioner of Fish and Fisheries on the Islands
of Kadiak and Afognak, for the purposes of establishing a fish
culture station. As the President exercised the rights thus
reserved, and declared the whole island appropriated for the
purpose of establishing a fish culture station, and warned all
persons to depart therefrom, it is clear that the rights, if any,
previously acquired by the settlement were terminated by the
proclamation. Petitioner gained no additional consideration from
the improvements put upon the land, since, if for no other reason,
these were made prior to the act of 1891, when it was a mere
trespasser, and occupying the land without a shadow of title.
Affirmed.
