
    229 F. 966
    WORTHEN LUMBER MILLS v. ALASKA JUNEAU GOLD MINING CO.
    No. 2640.
    Circuit Court of Appeals, Ninth Circuit.
    Feb. 7, 1916.
    Rehearing Denied March 6, 1916.
    Second Petition for Rehearing Denied May 8, 1916.
    
      John Rustgard, of Juneau, Alaska, for appellant.
    Hellenthal & Hellenthal, of Juneau, Alaska (Curtis H. Lindley, of San Francisco, Cal., of counsel), for appellee.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   GILBERT, Circuit Judge

(after stating the facts as above).

The appellant contends that upon the established facts in the case the court below erroneously reached the legal conclusion that the appellee had established its title or right to the possession of the upland. It is argued that by entering the mill sites the appellant waived its right under the mining lode claims, that by presenting affidavits that the land was nonmineral in order to enter the land as mill sites the appellee became estopped to claim the same under the mineral lode locations, and that by proving the right of possession of certain Indians in and to the upland prior to the act of Congress of 1884, and continüously thereafter until 1913, when the appellee received conveyances from them, the appellee has proved that the land was not open to location as mining claims or mill sites, and that no right of possession could be acquired under either thereof. The appellant, admitting that the right of possession was in the Indians as was found by the court below, contends that the Indian right of occupation was not transferable and never became vested in the appellee.

We do not think it is necessary to determine by which of the three sources of title pleaded in the complaint the appellee acquired possession of the upland. We do not agree with the appellant that by acquiring the mill sites the appellee became estopped to claim under the mining lode locations. We find no ground of estoppel in the mere fact that the appellee, while claiming under mining lode locations, purchased mill site locations located by others upon the same land. The representations which the mill site locators had made to the effect that the land was nonmineral could not be imputed to the appellee, unless.it were shown, which it is not, that the appellee had procured such locations to be made. We are of the opinion, also, that the right of the Indians was transferable. This court recognized that right in Heckman v. Sutter, 119 F. 83, 55 C.C.A. 635. The act of Congress of 1884 provided in section 8: “That the Indians or other persons in the said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress.”

We do not think that it was the purpose of this act merely to protect the possession of the Indians of lands which they then occupied in Alaska, and to deny them the power to convey to others their right of occupation. It was an act, not only for the benefit of the Indians, but also for the white settlers. It was enacted with a view to conditions which then existed in Alaska. Since the time of its acquisition, settlers and miners had been entering the territory. They had located mining claims and town sites, and had transferred lands in tracts and in lots and blocks. They had erected buildings for mercantile purposes and dwelling purposes. The mining claims and lands so occupied by Indians and settlers were held under a claim of possession only, and such possessory rights had been freely conveyed and transferred. Those possessory rights as they then existed, were recognized and protected by the act. The act made no distinction between the rights of the white settlers and the rights of the Indians, and it is not to be presumed that Congress intended thereby to deprive either of the power to exercise rights which they had theretofore possessed.

We find nothing to the contrary in Russian-American Co. v. United States, 199 U.S. 570, 26 S.Ct. 157, 50 L.Ed. 314, in which Mr. Justice Brown said of section 8 of the act: “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.”

Nor does the Act of May 17, 1906 (34 Stat. 197 [48 U.S.C.A. § 357]), authorizing the Secretary of the Interior in his discretion to allot nonmineral land to any Indian or Eskimo as a homestead for the allottee and his heirs in perpetuity, which “shall be inalienable and nontaxable until otherwise provided by Congress,” of its own force terminate the rights of occupation which the Indian had prior thereto, or place any bar upon the alienation thereof.

The appellant invokes the doctrine of McCloskey v. Pacific Coast Co., 160 F. 794, 87 C.C.A. 568, 22 L.R.A.(N.S.) 673, in which this court held that the plaintiff therein had, by dedication of a street and by deed, parted with all its littoral rights, and it contends that the appellee’s littoral rights are cut off by a public street 20 feet wide, known as Franklin street, which extends along the line of mean high tide on the shore of Gastineau Channel in front of the appellee’s upland. The evidence is that in the year 1912 the city council of Juneau caused surveys to be made for a street along the beach between the appellee’s upland and the waters of the channel, and between high and low water mark, which was made a plank road placed upon piling, and has become one of the principal streets of Juneau.

The cases cited in support of the decision in the Mc-Closkey Case are to the effect that a littoral proprietor may be deprived of littoral rights by his own act in dedicating a street to the public use, or by a conveyance; also that upland purchased after a public street has been laid out between the same and navigable water is taken severed from all littoral rights. The principle of those decisions does not apply to a case where, as here, the facts go no farther than to show that a municipal corporation has laid out a street on tide lands in front of the upland, and has used it for two or three years without having secured from the upland proprietor any right so to do, or obtained that right by condemnation proceedings. In such a case there is no ground on which it can be said that the right of the littoral proprietor has become merged in a public right. As alleged in the complaint, and as found by the court below, Franklin street interposes in fact no obstacle to the appellee’s access to the waters of Gastineau Channel, and we hold that'it interposes no obstacle in law.

The appellant contends that by virtue of the mill site locations there was reserved between the land so located and the Gastineau Channel a roadway 60 feet in width under section 10 of the Act of May 14, 1898 (30 Stat. 409 [48 U.S.C.A. § 462]). The contention is contrary to the decision of this court in Dalton v. Hazelet, 182 F. 561, 105 C.C.A. 99. We are not convinced .that that case was erroneously decided.

The court below found that the appellee had need of access to the navigable waters of Gastineau Channel in connection with its mining plant on the upland, and that to avail itself of this right of access it was necessary to construct a wharf covering the whole space in front of said upland, or from the appellant’s southerly line to the present Alaska-Juneau wharf, and that all of said area is reasonable and necessary to be used in aid of the appellee’s ingress and egress to and from such upland. The appellee having, .as we have found, the right of access to the navigable waters of the channel, we are not convinced that the court below has by its decree accorded to it a greater or more extensive right than is reasonable under the circumstances.

The order is affirmed.  