This is an appeal from a judgment of the court of claims, rejecting a claim of the Russian-American Packing Company [199 U.S. 570, 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 [26 Stat. at L. 1095, chap. 561, U. S. Comp. Stat. 1901, p. 1535].
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 [ 27 Stat. at L. 1052] 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. [199 U.S. 570, 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.
Messrs. Alexander Britton and Aldis B. Browne for appellant.
[199 U.S. 570, 574] Mr. Frederick DeCourcy Faust and Assistant Attorney General Pradt for appellee.
Statement by Mr. Justice Brown: [199 U.S. 570, 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, 116 , 25 S. L. ed. 587, 588; Maddox v. Burnham, 156 U.S. 544 , 39 L. ed. 527, 15 Sup. Ct. Rep. 448; Northern P. R. Co. v. Colburn, 164 U.S. 383 , 41 L. ed. 479, 17 Sup. Ct. Rep. 98.
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. at L. 24, chap. 53), wherein it was enacted by 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 [199 U.S. 570, 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 12 of the same act:
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 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. at L. 1100, chap. 561),1 12 of which provides:
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:
Even if 14 had not been enacted, it would not follow that petitioner, by 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 pre-emption 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 pre-emption laws, is only obtained when the purchase money has been paid, and receipt from the proper land officer given to the purchaser. [199 U.S. 570, 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, 19 L. ed. 668. 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 (Hutchings v. Low) 15 Wall. 77, 87, 21 L. ed. 82, 85; Campbell v. Wade, 132 U.S. 38 , 33 L. ed. 242, 10 Sup. Ct. Rep. 9; Shiver v. United States, 159 U.S. 491 , 40 L. ed. 231, 16 Sup. Ct. Rep. 54.
The case of Lytle v. Arkansas, 9 How. 314, 13 L. ed. 153, 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 pre-emptor 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. 93, L. ed. 87) that--
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 14 of the act, which declares [199 U.S. 570, 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.
[ Footnote 1 ] U. S. Comp. St. 1901, pp. 1467, 1468.