
    JOHN H. KINKEAD ET AL. v. THE UNITED STATES.
    [No. 15655.
    Decided May 13, 1889.]
    
      On the Proofs.
    
    The commissioners who formally transfer Alaska to the UnitedStates make a joint report, to which is attached a list of buildings reported to be private property, theowners having no title to the land, and their names not being given. One is subsequently sold to the claimants by a deed conveying the land on which it stands, the grantor being the Russian American Company. Subsequently the Government takes possession and insists that it passed to the United States by the terms of the treaty. Congress refer the claim to this court and direct that if the “parties acquired a valid title to said buildings ” the court shall award them rent and indemnity.
    I, The term “private, individual property," used in the Treaty (ceding Alaska to the United States) 30tli March, 1867 (15 Stat. L., 539), is exclusive of the Russian American Company, and was so in-tedded and mutually understood.
    
      II.Tlie company prior to the cession had only a right of occupancy for the purposes of trade; buildings erected by it became a part of the realty, and the right to them ceased with the termination of the occupancy.
    III. The equities of the company, if any, were exclusively against Russia, and the United States were exempt by the terms of the treaty.
    IV. The commissioners designated by Article IV were merely to make a formal delivery of the Territory and property; no act of theirs could vary or diminish the cession.
    
      V.No estoppel could arise from the fact that the commissioners reported a building to be “private, individual property,” when the purchaser knew it to be property which had passed to the United States by the express terms of the treaty.
    - VI. Where the preamble to a private act recites that a certain building was private property, and the body of the act directs the court to determine whether the claimants acquired a valid title to it, the recital can not he taken as the legislative concession of a vital and material fact, forming the basis of the whole controversy. (Jot 17th January, 1887, 24 Stat. L., 358.)
    
      The Reporters statement of the case.
    The following are the facts as found by the court:
    I. At the time Alaska was ceded by Russia to the United States there was standing on a certain lot adjacent to the public wharf, in the town of Sitka, a building, constructed of' hewn logs, 118 feet in length and 50 feet in width. The land upon which this building stood (as was conceded on the trial) belonged to Russia, and was thus embraced in the cession to the United States. This building was erected in 1845 by tbe Russian-American Company, at their own expense, and from that time to the date of the treaty had been used by said company as a warehouse for the storage of furs and other property and' for trading purposes. By what authority from Russia this land was built upon and occupied by said company, further than is shown in finding ii, does not appear.
    II. In fulfillment of the fourth article of the treaty the President appointed General Rousseau a commissioner to receive the formal transfer of the ceded territory, with the following instructions:
    ‘ ‘ Department ' oe State,
    
      Washington, August 7, 1867.
    “General: You will herewith receive the warrant of the President, under the great seal of the United States, appointing you commissioner on behalf of the Government to receive from a similar officer appointed on behalf of the Imperial Government of Bussia the territory ceded by that Government to the United States pursuant to the treaty of the 30th of March last. You will consequently enter into communication with Captain Pestchouroff, the Bussian commissioner, now here, and arrange with him in regard to proceeding, as soon as may be convenient, to the territory referred to in order that your commission may be fulfilled.
    “ On arriving at Sitka, the principal town in the ceded territory, you will receive from the Bussian commissioner the formal transfer of that territory, under mutual national salutes from artillery, in which the United States will take the lead.
    “ Pursuant to the stipulations of the treaty, that transfer will include all forts and military posts and public buildings, such as the governor’s house and those used for government purposes, dock-yards, barracks, hospitals, and schools, all public lands, and all ungranted lots of ground at Sitka and Kodiak. Private dwellings and warehouses, blacksmiths’, joiners’, coopers’, tanners’, and ofher similar shops, ice-houses, flour and saw mills, and any small barrracks on the island are subject to the control of their owners, and are not to be included in the transfer to the United States.
    “ The respective commissioners, after distinguishing between the property to be transferred to the United States and that to be retained by individuals, will draw up and sign full inventories of the same in duplicate. In order,however, that the said individual proprietors may retain their property as aforesaid, or, if they should so prefer, may dispose of the same, you will, upon the production of the proper documentary or other proof of ownership, furnish the said proprietors with a certificate of their right to hold the same.
    “In accordance with the stipulations of the treaty, the churches and chapels in the ceded territory will continue to be the property of the members of the Greco-Bussian Church. •Any houses and lots which may have been granted to those churches will also remain their property.
    . “As it is understood that the Bussian-American Company possess in that quarter large stores of furs, provisions, and other goods now at Sitka, Kodiak, and elsewhere on the mainland and on the island, it is proper that that company should have a reasonable time to collect, sell, or export that property. For that purpose the company may leave in the territory an agent or agents for the purpose of closing their business. No taxes will be levied on the property of the company now in the territory until Congress shall otherwise direct.
    “ It is expected that, in the transaction of the important business hereby intrusted to you, it will be borne in mind that, in making the cession of the territory referred to, His Imperial Majesty the Emperor of all the Bussias has been actuated by a desire of giving a signal proof of that friendship for the United States which has characterized his own reign and that of his illustrious predecessors. It is hoped, therefore, that all your intercourse with the Bussian commissioner will be friendly,, courteous, and frank.
    “This Department understands from the President that,, upon the conclusion of the business with the Bussian commissioner, you will have command in the Territory, to be exercised under the orders of the War Department.
    “ I am, general, your obedient servant,
    “William H. Seward.
    “ Brigadier-General Lovell H. Bosseau.”
    The commissioner, having performed his duty, made a report to the Government, the receipt of which was acknowledged as follows:
    “Department op Stíte,
    “ Washington, January 24,1868..
    “General: I have had the honor to receive the report which, on the 5th of December last, you transmitted to me, of the execution of the agency confided to you for receiving the-formal transfer of the Territory of Alaska.
    “The report was accompanied by a certificate mutually executed and delivered on the 26th of October last, between yourself and Alexis Pestehouroff, Bussian commissioner; an inventory of the property belonging to the Greco-Bussian Ohurehat' Sitka; a list of the names of persons holding property in fee-simple in the city of Sitka; an inventory of private property in the city of Sitka; an inventory of forts and public buildings in the island of Kodiak; a letter of the Bussian commissioner to yourself, written on the 26th of October; a map of the city of Sitka; and the United States flag which was used by you on the occasion of the transfer.
    “ The proceedings referred to have been submitted to the President, and I am directed to acknowledge the reception of' the papers, and to communicate to you the President’s satisfaction with the manner in which your important and delicate* trust was executed.
    “ I have the honor to be, general, your obedient servant,
    “William H. Seward,
    “ Secretary of State..
    
    “ Major-General Lovell H. Bousseau,
    “ Headquarters Department of the Columbia,
    “Portland, Oregon
    
    
      
      Extracts from the report of General Rousseau, the commissioner..
    
    “Captain Festckouroff, tbe governor, and myself, on the Monday following went to work to distinguish between the public and private buildings in the town of New Archangel -(Sitka), and giving certificates to private individual owners of' property there.
    “I found that by the charter of the Russian-American Company it had authority to vest in its employés, occupants of' land in the Territory, the title thereto. This was on cAddition, however, that the possessions of the Indians should not be interfered with.
    “Acting under this charter, the company from the first caused dwellings to be erected for the use of its employés on lots of ground set apart for that purpose. The title in fee to such premises was often vested in the employé in possession when he had faithfully served out his term with the company, or having died before it ended, and having a widow or children in the Territory the title was frequently vested in them.
    “ Finding in its charter this authority of the company to .vest title to land in its employés, and that very many of the dwellings' erected by the company were occupied by its em-ployés, or their widows and children, who claimed the property in fee, the commissioners called on the governor, Prince Maksoutoff, to define and certify to the interest of each individual thus occupying such dwellings and lots, in order that we might distinguish between those who owned the property in fee and those who claimed a less interest, and in compliance - with your instructions give certificates to the claimants accordingly.
    “ The inventories respectively marked C and D (forming part of the protocol), which are forwarded with this report, will show,. in part, the aetion of the governor in the premises; for the rest he gave a certificate stating the interest of each occupant in ■ the premises occupied, on the back of which the commissioners . placed their approval, and it was left to be delivered to the occupant.
    “In order to be accurate, and to prevent disputes hereafter about the title to houses and lots, we made a map of New Archangel (forwarded with this report), on which every house and dwelling in the town is located and numbered, and, as between ■ the claimant and the United States, the title to it defined and settled in the inventories. This was thought necessary in order to give, in accordance with your instructions, to each man of property who desired to dispose of it a certificate of title.
    “The town of New Archangel was built in the main by the Russian-Ameriean Company, and, except the dwellings transferred by them to their employés and the public buildings transferred to the United States, is owned by that company still; yet it has but a possessory interest in the land, as it only had permission to erect buildings upon it; for, although it had authority to vest the title of lands in its employés, it had no power to vest such title in itself. The commissioners left the matter as they found it, and the company in possession of its buildings.
    “All the buildings in anywise used for public purposes were delivered to the United States commissioner, taken possession of, and turned over to General Davis, as were also the public archives of the Territory; and in a spirit of liberality the wharf and several valuable warehouses belonging to the Russian-American Company were included in the transfer by the Russian commissioner.] Both the wharf and the warehouses were very much needed by our people.
    “For the further action of the commissioners in the execution of their commission your attention is respectfully called to the protocol, map, and inventories accompanying this report.”
    
      Protocol of the commissioners.
    
    “ New Archangel (Sitka),
    “ October 26 (14-26), 1867.
    “We, the undersigned, United States and Russian commissioners, Captain. Alexis Pestchouroff, of the imperial Russian navy, appointed by His Imperial Majesty the Emperor of Russia to transfer and deliver, and Brigadier-General Lovell H. Rousseau, of the United States Army, appointed by Andrew Johnson, President of the United States, to receive, the Territory ceded by His Imperial Majesty to the United States of America by treaty bearing date the thirtieth day (18-30) of March, A. D. eighteen hundred and sixty-seven, met at the town of New Archangel, in the Territory above named, to fulfill our commission; and on the eighteenth (6-18) day of October, in the year eighteen hundred and sixty-seven, at the governor’s house in that town, Captain Pestchouroff, as such commissioner, for and in the name of His Imperial Majesty, the Emperor of Russia, formally transferred and delivered to Lov-ell H. Rousseau, as commissioner as aforesaid, who received the same for and on behalf of the United States, the Territory, dominion, property, dependencies, and appurtenances ceded to the United States of America by the treaty above referred to and as bounded and described in that treaty. The transfer was made under mutual salutes of artillery, the United States taking the lead, and in strict accordance with our instructions in that behalf.
    “In pursuance of our respective instructions, Captain Pest-chouroff, as such commissioner, also delivered to General Rousseau, as commissioner aforesaid, the government archives, papers, and documents relating to the territory and dominion above named, also the forts and public buildings, including the governor’s house, dock-yards, block-houses, barracks, batteries, hospital, wharves, and schools in the town of New Archangel, an inventory of which, marked A, is attached hereto as part hereof. We left, as instructed, in the hands of the Greco-Ñus si an Church, the church buildings, appurtenances, and parsonages to the same belonging, as shown and described in inventory marked B, attached hereto as part hereof. We gave certificates of ownership to the individual owners of private houses and of lots in fee-simple in the town of New Archangel, as directed, a list of whose names is presented in inventory marked C, attached to and made part hereof. In inventory marked D, attached to and made part hereof, are shown the houses and buildings owned by private individuals in New Archangel, the owners thereof having no title in fee to the land on which they are situated. A map of the town of New Archangel is also attached as part hereof. The letters and numbers on the margins of the several inventories aforesaid correspond with those of the said plan of the town.
    “As we were unable to visit Kodiak personally, we took no action touching affairs there. The public property there is certified to by the governor of this' Territory, in inventory E, attached and made part hereof, and the military authorities can ’ take possession of the same at any time.
    “ Lovell -H. Eousseae,
    “ United States Commissioner.
    
    
      “ Alexis Pestchotjroee,
    “ Russian Commissioner.”
    The property in dispute in this suit is not included in inventory C, where are found the names of owners to whom the commissioners gave certificates of title, but in inventory D, which is a list of buildings, “ the owners thereof having no title in fee to the lands on which they are situated. ”
    III. After said transfer William S. Dodge was appointed collector of customs at Sitka, and in June or July, 1868, he was in the possession and occupancy of the northern part of the building described in the claimants’ petition, which he used as a customs warehouse. At the same time and afterwards the claimant Sussman was in the occupancy of another part of the building. Said Dodge continued so to occupy the northern part- of the building until about the 1st of December, 1868, when he turned it over to Hiram Ketchum, jr., his successor in the office of collector, who continued in the same occupancy till March 4, 1869, when he resigned the office and turned the warehouse over to Samuel Falconer, the deputy collector of the port.
    
      IY. Before and after the said last-named date General Jefferson C. Davis, U. S. Army, was at Sitka, in command of the Department of Alaska. On the 26th of February, 1869, there was sent to him from the War Department the following order:
    “ It having been reported to this Department that a very large portion of the property which belonged to the Russian Fur Company in Alaska is now enjoyed by persons, claiming title under a purchase from Prince Maksoutoff, since the cession of that Territory to the United States, the Secretary of War directs that you take possession of and retain in your charge all posts, buildings, etc., which are no.t in fact entitled to be considered individual property. ”
    In pursuance of this order General Davis, on the 2d of June, 1869, authorized the said Falconer to take possession of and use the whole of said building for Government purposes pertaining to the Treasury Department, except the three lower rooms of it situated on the southeast side of the lower passage way; which rooms were reserved by General Davis for the storage of Army stores, and were, in the month of September following, placed under the control of the Quartermaster’s Department of the Army. From that time to the present the whole of said building has remained in the possession and use of the Government, said Falconer continuing in the occupancy of the part of it so assigned to him until August, 1869, when he turned it over to William Kapus, who had been appointed collector of the port. It does not appear that either Dodge, Ketchum, Falconer, or Kapus was authorized by the Secretary of the Treasury to rent the premises so occupied by them, respectively, or that either of them ever paid rent therefor to any one.
    Y. On the 2d of June, 1869, the claimant Kinkead, styling himself “ attorney for the owners,” protested in writing to General Davis against his action in taking possession of said building. In his protest he claimed that the building had been designated as private property by the commissioners appointed by the Government of Russia and that of the United States; that it had been purchased of Prince Maksoutoff, chief factor of the late Russian-American Company, and that the title acquired through that purchase was good, valid, and legal. The title thus set up was what purported to be conveyed, by a deed to Louis Sloss, dated October 28, 1868; but though the deed was made to Mm, the claimants assert, and lie admits, that the beneficial intérest in the conveyance is in them. The deed was as follows:
    “ This indenture, made the twenty-eighth day of October, in the year of our Lord one thousand eight hundred and sixty-eight, between the Russian-American Company, party of the first part; and Louis Sloss, of San Francisco, in the State of California, party of the second part, witnesseth :
    “ That the said party of the first part, for and in consideration of the sum of three thousand dollars, gold coin of the ' United States, to them in hand paid by the said party of the second part at and before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the said party of the second part, his heirs, executors and administrators, forever released and discharged therefrom, by these presents, have granted, bargained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents do grant, bargain, sell, alien, remise, release, convey, and confirm, unto the said party of the second part, and to his heirs and assigns forever, all that certain piece or parcel of land situate, lying, and being in the city of Sitka and Territory aforesaid, and more particularly described as that piece or parcel of land situate near and adjoining to the public wharf of said city, upon which is erected building numbered one (Uo. 1), and described as a warehouse in the map and inventory D, attached to and made a part of the protocol of the transfer of said Territory to the United States by Russia, and therein declared to be private property.
    “Together with all and singular the tenements, heredita-ments, and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof.
    “ And also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, or to the said premises, and every part and parcel thereof, with the appurtenances.
    
      “ To have and to hold, all and singular, the said premises, together with the appurtenances, unto the said party of the second part, his heirs and assigns forever; and the said party of the first part does hereby covenant that they will warrant -and defend their right, title, and interest of, in, and to the said premises against the acts and deeds, of the said party of the first part, and all persons claiming by, from, under, or through the said party of the first part, unto the said party of the second part, his heirs and assigns forever.
    “In witness whereof the said party of the first part has hereunto caused its corporate seal to be affixed, and these presents to be subscribed, by their chief administrator, the day ,and year first above written.
    “P. Maksoutoee,
    “ Chief Administrator of the Russian-American Company.
    
    
      i SEAL OE THE RUSSIAN- \
    
    
      \ AMERICAN COMPANY. /
    “ Signed, sealed, and delivered in the presence of—
    “H. T. Bingham.
    “William S. Dodge.”
    “ Whereas John H. Kinkead, of Carson City, Nev., and Samuel Sussman, of San Francisco, Cal., did gn the 28th day of October, in the year 1868, purchase from the Russian-American Company, acting through Prince Maksoutoff, their chief administrator, that certain property situated in the town of Sitka, in Alaska, known as building No. 1, and hereinafter more particularly described; and whereas said John H. Kin-kead and Samuel Sussman did make payment for the same; and whereas the legal title to said property in the deed of purchase was taken in the name of Louis Sloss; and whereas said ■ Louis Sloss did not have at that time, and never heretofore has had, and has not at this time, any beneficial or equitable interest in and to said property, or to any portion thereof; and whereas the said purchase was taken in the name of said Louis sloss simply for convenience and business accommodation between the parties, and not otherwise; and whereas the said Louis Sloss now holds said property merely as the trustee for said John H. Kinkead and said Samuel Sussman and not otherwise; and whereas the equitable title in and to said property ever was since October 28, 1868, and now is, in the said John JET. Kinkead and said Samuel Sussman, and not otherwise, therefore, for the purpose of conveying to said John H. Kinkead and said Samuel Sussman the legal title in- and to said property so held by me as trustee, as aforesaid:
    “Now, therefore, this indenture, made this 25th day of February, in the year 1887, between Louis Sloss, of the city and county of San Francisco, in the State of California, party of the first part, and John H. Kinkead, of Carson City, in the State of Nevada, and Samuel Sussman, of the city and county of San Francisco, in the State of California, parties of the second part, witnesseth : That the said party of the first part, for and in consideration of the sum of $1, lawful, money of the United States, to him in hand paid by the said parties of the second part, at and before the ensealing of these presents, the receipt whereof is hereby acknowledged, and the said parties of the second part, their heirs, executors, and administrators, are forever released and discharged therefrom, and also in consideration of the foregoing recitals, by these presents has granted, bargained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents does grant, bargain, sell, alien, remise, release, and confirm, unto the said parties of the second part, and to their heirs and assigns forever, all that certain piece or parcel' of land situate, lying, and being in the city of Sitka, and Territory of Alaska, and more particularly described as that piece or parcel of land situated near and adjoining to the public wharf of said city, upon which is erected building number one (No. 1), and described as a warehouse in the map and inventory D, attached to and made a part of the protocol of the transfer of said Territory to the United States by Russia, and therein declared to be private property, together . with all and singular the tenements, hereditaments, and appurtenances thereunto belonging to or in anywise appertaining; and the reversion and reversions, remainder and remainders, and all rents, past, present, or prospective, and issues and profits thereof, or due in any manner or whencesoever arising; and also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, or to said premises, and every part and parcel thereof, with the appurtenances. To have and to hold all and singular the said premises, together with the appurtenances, unto the said parties of the second part, their heirs, and assigns forever.
    ‘‘In witness whereof the said party of the first part has hereunto affixed his hand and seal the day and year first above written.
    “Louis Sloss.”
    VI. After said Ketchum received possession of the part of said building which was occupied as a customs warehouse, as above stated, the claimants demanded of him that he should either surrender the occupation of the premises or lease the same from the owners. This was the first adverse claim to the premises which appears to have been made by any one on the collector of the port. Ketchum then negotiated with the claimant Sussman for the leasing of a part of the building, and the following paper was executed by him and Sussman:
    “ This indenture, made the fifteenth day of December, in the year of our Lord one thousand eight hundred and sixty-eight, between Samuel Sussman, agent for Louis Sloss, party of the first part, and Hiram Ketchum, junior, party of the second part, witnesseth:
    That the said party of the first part has granted, demised, and let, and by these presents does grant, demise, and let, unto the said party of the second part so much of the warehouse joining the public wharf at the foot of Lincoln street, in the said city of Sitka, as he, the said party of the first part, shall find .it necessary to occupy and use for the purpose of warehousing bonded goods, dutiable and otherwise, under the custom and other laws of the United States. The said building being more particularly described as building numbered one (No. 1) on tbe map and inventory I) attached to and made a part of the protocol of the transfer of the Territory of Alaska by Russia to the United States, and therein declared to be private property. To have and to hold, from the fifteenth day of December, 1868, to the fifteenth day of December, 1869, at the monthly rent or sum of two hundred dollars, gold coin of the United States, payable on the fifteenth day of each and every month.
    “And the said party of the second part does hereby covenant, promise, and agree to pay the said party of the first part the said rent in the manner hereinbefore specified, and not to let or underlet the said premises,-or any part thereof, without the written consent of the said party of the first part, or of his agent, thereunto properly authorized. And that at the expiration of the said term the said party of the second part will quit and surrender the said premises in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted.
    “ And the said party of the first part, for and in consideration of the premises, and of the further sum of one dollar to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, does hereby covenant and agree to and with the said party of the second part, that for the period of nine (9) months next ensuing, that is to say, from and after the 15th day of December, 1868, and before the fifteenth day of September, 1869, the United States shall have the sole and exclusive right and privilege of purchasing the said premises, upon the United States paying therefor the sum of twenty-two thousand five hundred dollars ($22,500), currency. And the said party of the first part does hereby covenant and agree not to sell or dispose of the said premises to any other party or parties whatsoever within the time hereinbefore specified. But should the United States not purchase the said premises before the fifteenth day of September, 1869, the said party of the first part shall then have the right to dispose of the said premises to any one whomsoever.
    “And it is hereby further covenanted between the said party of the first part and the said party of the second part, that in the event of the sale of the said premises, subject to the foregoing covenants and conditions, then this lease to terminate from the date of such sale, and thereafter to be null and void.
    “ And the said party of the first part does hereby further covenant, promise, and agree that the said party of the second part, paying the said rent subject to the covenants aforesaid, ■shall and may, peaceably and quietly, have, hold, and enjoy the said premises for the term aforesaid.
    “ In witness whereof the said parties have hereunto set their hands and affixed their seals the day and year in this instru- ; ipent first above written.
    “Sam’l Sussman, [seal.]
    
      “Ag’t for -Louis Sloss.
    
    “Hiram Ketchum, Jr. [seal.]
    “ Signed, sealed, and delivered in the presence of—
    “H. T. Bingham.
    “Samuel Falconer.”
    VII. Ketchum transmitted a copy of said lease to the Secretary of the Treasury, who, on the 18th of February, 1869, wrote to him disapproving of the lease; advising him that no building could be hired by him for any purpose without the previous authority and assent of the Treasury Department, and referring to a letter which the Secretary had written to him on the 6th of- that month, claiming that the building described in the lease was the property of the United States under the treaty of cession of Alaska.
    
      Mr. George A. King for the claimant.
    
      Mr. Lewis Cochran (with whom was Mr. Assistant Attorney-General Howard) for the defendants.
   Scofield, J.,

delivered the opinion of the court:

This suit involves the ownership and value of a certain building in the town of Sitka and Territory of Alaska.

The defendants claim that the building, with the land bn which it stands, was ceded to. them by Bussia, in the Treaty of March 30, 1867 (15 Stat. L., 539). The claimants, on the other hand, contend that the building, although standing on land embraced in the cession, was private property, belonging to the Bussian-American Company, under whom they claim, and, as private property, was excepted from the cessiou by the express terms of the treaty.

Ih this suit the claimants do not seek to recover the land, although it is embraced in their deed. They claim only the value of the building and the rent, amounting to $167,000.

The case came before this court some years ago and was then dismissed for want of jurisdiction. (18 C. Cls. R., 504.)

Thereafter Congress passed the following act:

AN ACT referring to the Court of Claims for adjudication the claims of John H. Kinkead, Samuel Sussman, and Charles.O. Wood.

“ Whereas John H. Kinkead, of Nevada, and Samuel Suss-man, of California, did, on the twenty-eighth day of October, eighteen hundred and sixty-eight, purchase a certain building situate on lot known as number one on the official plat of the town of Sitka, m the Territory of Alaska, from the Eussian-American Company, the owner of said building; and
“Whereas, said building had been declared by the protocol of the transfer of Eussian America to the United States to be private property; and
“ Whereas thereafter the collector of customs of the United States did take from said Kinkead and Sussman a lease of a portion of said building, and entered thereupon; and
“Whereas afterward General Jefferson C. Davis did seize the whole of said building, on the ground that the same was the property of the United States, notwithstanding the commissioners appointed to ascertain private property had certified ■the same to be private property; and
“Whereas afterward said Kinkead and Sussman did present their petition to the United States Court of Claims claiming rent for the said building; and
“ Whereas said court did, on the eleventh day of June, eighteen hundred and eighty-three, dismiss said claim for want of jurisdiction only; and
“Whereas Charles O. Wood, of Ohio, did in like manner purchase a certain other building, situate on lot known as number twenty-four, from said Eussian-American Company, and did in like manner present his petition to the Court of Claims for rent of the same, the same having been in like manner seized for the use of the United States, notwithstanding the same had been certified to be private property; and
“.Whereas said Court of Claims did in like manner dismiss the claim of said Wood, for want of jurisdiction only : Therefore,
Beit enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That jurisdiction be, and is hereby, conferred on the Court of Claims to hear the claims of John H. Kinkead and Samuel Sussman andi Charles (). Wood, for the rent and value of certain buildings-in the town of Sitka, in the Territory of Alaska, alleged by them to have been acquired by virtue of purchase from the Eussian-American Company, upon the evidence already filed in said court and such additional legal evidence as may be hereafter presented on either side; and if said court shall find that said parties acquired a valid title to said buildings respectively alleged to have been purchased by them, said court shall award to said parties a fair and reasonable rent for the use of the said buildings ior the time (if any) the same have been occupied by the United States, and also a suitable indemnity for said buildings themselves; and the receipt of such rent and indemnity shall thereafter bar any further claim by said parties for the use of said buildings or for the value thereof; and before receiving the same all of said parties shall execute a release to the United States for all right, title, and interest whatsoever in and to the said property; and any defence, set-off, or counter claim may be pleaded by the United States as defendants, as in cases within the general jurisdiction of the court, and either party shall have the same right of appeal as in such cases.
“Approved, January 17, 1887.’’

August 7, 1867, commissioners to make the formal transfer of the Territory, as required by article 4 of the treaty, were appointed and they made their official joint report, or protocol, ' dated at Sitka, October 26,1867. Accompanying this protocol was a schedule in which this building is classed as private property and described as warehouse No. 1. No owner is named.

Subsequently to these proceedings, to wit, October 28,1868, the claimant took from the Russian-American Company a deed of the land on which this building was standing, and paid therefor $3,000 in gold, but the company did not warrant their title. At that time the United States were occupying the northern part of the building as a custom warehouse.

The building was erected by the Russian-American Company in 1845, and from that time until after the transfer to -the United States by the treaty was occupied by that company. They used it for storing furs and other property and for the purpose of general trade. What agreement for the occupancy of the land that company had with the Russian Government does not fully appear. The United States commissioner, in his separate report to the State Department, says:

“ The town of New Archangel (Sitka) was built in the main by the Russian-American Company, and, except the dwellings transferred by them to their employes and the public buildings transferred to the United States, is owned by that company still. Yet it has but a possessory interest in the land, as it only had permission to erect buildings upon it; for, although it had authority to vest the title of lands in its employés, it had no power to vest such title in itself.' The commissioners left the matter as they found it, and the company in possession of its buildings. * * *
“All the buildings in anywise useful for public purposes were delivered to the United States commissioner, taken possession of, and turned over to G-eneral Davis, as were also the .public archives of the Territory ; and in a spirit of liberality the wharf and several valuable warehouses belonging to the Russian-American Company were included in the transfer by the Russian commissioner. Both the wharf and the warehouses were very much needed by our people.”
To decide upon the ownership of the building we must look first to the treaty itself.
By the first article the Emperor of Russia agreed to cede to the United States “ all the territory and dominion now possessed by His Majesty on the continent of America.” It is admitted by the claimants that the land upon which the building stands belongs to His Majesty and constituted a part of the territory thus ceded. That being so, and nothing more appearing, the building would be included in the cession. Confirmatory of this intention of the contracting parties the last lines of the sixth article repeat that “ the cession hereby made conveys all the rights, franchises, and privileges now belonging to Russia in the said territory or dominion, and appurtenances thereto.”
The second article provides that “ in the cession of territory and dominion made by the preceding article are included the right of property in all public lots and squares, vacant lands, and all public buildings, fortifications, barracks, and other edifices, which are not private individual property.”

Taking this article to be a limitation upon the general terms of the first, and admitting that this building would be included in the words “ other edifices,” it becomes necessary to inquire whether it was private individual property ” within the meaning of this article.

On the one side it is contended that all edifices not used for governmental purposes are excluded from the cession, and on the other, that no edifice is excluded unless it was not only private property, but property owned by an individual as distinguished from a company.

By the claimants’ construction, the word “individual” has either no meaning at all or is simply a repetition, in meaning, of the preceding word “ private.” We can not suppose that the word was used by the distinguished negotiators without a proper consideration of its normal meaning, nor that it found a place in the text by mere accident, especially as the same words are repeated in the sixth article. We infer, therefore, that “ the high contracting parties ” did not intend to class this edifice as “ private individual property.”

The sixth article seems even more clearly to support the contention of the defendants. It declares that “ the cession of territory and dominion herein made is hereby declared to be free and unincumbered by any reservations, privileges, franchises, grants, or possessions by any associated companies, whether corporate or incorporate, Russian, or any other, or by any parties, except merely private individual property holders.” Here is a guaranty against any claim that “ any associated companies” may set up. Having thus extinguished all claims of the Russian or other companies, the article goes still further and cuts off claims of “ any parties except merely private individual property holders.” So far as this article is concerned, it is not important to inquire whether or not property held by the Russian-American Company can be classed as “ private individual property,” because the excepiion relates only to the • words “ any parties ” in the foregoing enumeration.

To understand fully the purpose of this article, the relation existing between the company and the Russian Government should not be overlooked. That company not only had a monopoly of trade and all sources of wealth in the whole of that vast territory, but exercised over it all the powers of government. The counsel for the claimants, in his-* written brief, says:

“Not only was the American company authorized to administer the government in its own way, but it possessed the power of subletting or transferring its franchises and privileges to other parties, and had exercised that authority.”

While the company could and did convey land to private individuals, its employés and others, it had for itself only the right of occupancy for the purpose of trade. At best it was only a tenant at will. All betterments and buildings placed upon the land became part of the realty, and its ownership and right of occupancy of them ceased with the termination of its tenancy. Russia was about to terminate thn tenancy by transferring the territory to the United States. The company may have had some equities as against Russia, and the United States did not propose to assume them. They were willing that any party who had acquired title to land should retain it, but they did not intend' that these companies should continue to occupy the ceded territory, nor did they intend to pay them for betterments.

To avoid all misunderstanding on that subject and all misconstruction of the first and second articles, the sixth article, after some further negotiation, was inserted. Its language is positive, clear, and unmistakable. All incumbrances, whether originating in grant, privilege, or possession, in favor of these companies are entirely extinguished. Under that article these companies can no more claim buildings put upon the land for the purpose of carrying on trade during their tenancy than they can the land itself. Indeed, it is difficult to see how they could claim or enjoy the buildings without the land. The claimant’s construction of the treaty gives this article no force whatever. In their view of the case it is quite unimportant.

Secretary Seward did not so regard it. He made its adoption an ultimatum. He wanted no controversy with these companies about equities arising from possession and improvement or alleged privileges. He therefore insisted that Russia should clear the territory of all such incumbrances. He even agreed to pay $200,000 to enable Russia to settle, if she saw fit, with her own outgoing tenants. This was in addition to the sum originally agreed to be paid, as appears by the following correspondence:

“Department oe State,
Washington, March 23,1867.
“Sir: With reference to the proposed convention between our respective Governments for a cession by Russia of her American territory to the United States, 1 have the honor to acquaint you that I must insist upon that clause in the sixth article of the draught which declares thecession to be free andnn-incumbered by any reservations, privileges, franchises, grants, or possessions by any associated companies, whether corporate or incorporate, Russian or any other, etc., and must regard it as an ultimatum; with the President’s approval, however, I will add two hundred thousand dollars to the consideration money on that account.
“I avail myself of this occasion to offer to you a renewed assurance of my most distinguished consideration.
“William H. Seward,
Secretary of State..
“ Mr, Edward de Stoeckl, etc.”
[Translation.]
“Imperial Legation oe Russia
“to the United States,
“ Washington, March 25,1867.
“Mr. Seoretaiíy oe State: I have had the honor to receive the note which you were pleased to address to me on the 23d March, 1867, to inform me that the Federal Government insists that the clause inserted in article sixth of the project of convention must be strictly maintained, and that the territory to be ceded to the United States must be free from any arrangement and privileges conceded either by Government or by companies.
“In answer, I believe myself authorized, Mr. Secretary of State, to accede literally to this request on the conditions indicated in your note.
“Please accept, Mr. Secretary of State, the assurances of my very high consideration.
“Stoeoicl.
“Hon. William: H. Seward,
Secretary of State of the United States.”

The opinion of the Attorney-General (14 Ops. Att. Gen., 302), cited by the claimants, can hardly be said to sustain their contention. After discussing the case at considerable length, the opinion concludes as follows:'

“But though the ownership of the buildings in dispute was left by the provisions of the treaty in the Russian-American Company, yet, as all right or interest which the company had in the land on which they were erected was extinguished, and the title thereto transferred, free and unincumbered, to the United States, the company could not by reason of its ownership of those buildings thereafter occupy such land except by the sufferance of the Government of the United States •, and the parties who may have since purchased the buildings from the company would seem to stand in the same situation ¡ elatively to the Government. They are simply occupants of the public domain without title, and where there is no law providing for the acquisition of title from the United States.”

Even according to this opinion the Government had only to take possession and assert its paramount right to make its title complete under the treaty. This the United States had already done by taking possession of the northern part of the building and using it as a custom-house for four months at least before the date of the claimant’s deed. This occupancy was notice to the claimants that the Government was claiming title.

We come now to inquire whether property acquired by the United States under the terms of the treaty has been lost by the action of the commissioners or any branch of the executive department.

The fourth article of the treaty is as follows:

“ His Majesty the Emperor of all the Eussias shall appoint,, with convenient dispatch, an agent or agents for the purpose of formally delivering to a similar agent or agents appointed on behalf of the United States the territory, dominion, property, dependencies, and appurtenances which are ceded as above, and for doing any other act which may be necessary in- regard thereto. But the cession, with the right of immediate possession, is nevertheless to be deemed complete and absolute on the exchange of ratification, without waiting for such formal delivery.”

By this article the commissioners are merely empowered to make a formal delivery of “the territory, dominion, property, and appurtenances which are ceded as above,” but not to enlarge nor diminish the cession. They had no more power to take from or add to the treaty than they had to annul it altogether. They were to go through a public traditional ceremony and make a symbolical delivery. Their duty was altogether formal.

The added words “ and for doing any other act which may be necessary in regard thereto” did not authorize them to put a construction upon the language of the treaty binding upon the parties. “Thereto” refers to the formal delivery and nothing more. That the duty imposed upon them was merely ministerial and in no sense judicial is shown by the concluding words, of the-article, that “the cession, with the right of immediate possession, is nevertheless to be deemed complete and absolute on the exchange of ratification without, waiting for such formal delivery.” Nor did the note of-Secretary Seward, dated January 24,1,868, addressed to General Eosseau, upon the receipt ofihis report and the protocol of the commissioners, commit the Government to their construction of the treaty, if they had attempted to make one. It was merely a complimentary acknowledgment of his services* and not intended to iudorse-any error» into-which he might have fallen;

But the commissioners in fact decided nothing. They simply placed warehouse No. 1 in a-list of buildings; “the owners-thereof,” so-they reported, “have no title-in fee to the land on which they are situated.” They did not undertake to deeide on the question of ownership under the treaty, and therefore gave no certificates to the alleged owners. “ They left the matter as they found it and the company in possession of its buildings.”

They state the facts substantially as the court has found them. The company had erected this building and were occupying it when the commissioners arrived, and they were left in possession when they departed. Whether the building should go with the land or the land with the building was a-question which they left unsettled.

From these facts no question of estoppel can arise. The commissioners decided nothing adverse to the Government, and the Government has never released, even in appearance, any rights acquired by the treaty, but, on the contrary has steadily asserted them.

The instructions to the Commissioners and their action are significant; of the intention of all parties concerned not then to decide nor express an opinion upon the title to private, property affixed to the land ceded to the United States by the-treaty. The commissioners were instructed to distinguish between the property to be transferred to the United States and that to be retained by individuals and to draw up inventories thereof, and were to decide upon the ownership and “ furnish the'said proprietors with a certificate of their right to hold the same.” This they did, and included all such property in Schedule C and gave certificates to theindividual proprietors. Schedule D, in which the warehouse in question is included, was not required by the instructions. The reputed owners were not named and no certificates of ownership were given. It seems., to be a schedule of private property which they found on Government land, the title to which they passed no opinion upon.

The present claimants set up no title under certificates of the-, commissioners.

It remains to be considered, upon the construction of the. law under which this suit is brought: How much of the case-has been decided by Congress, and how.much has been left to the decision of the court l

The preamble recites that—

“ Whereas John H. Kinkead, of Nevada, and Samuel Suss: man, of California, did, on the twenty-eighth day of October, eighteen hundred and sixty-eight, purchase a certain building-situate on lot known as number one on the official plat of the town of Sitka, in the Territory of Alaska, from the Russian-American Company, the owner of said building; and
“Whereas said building had been declared by thepi'otocol of the transfer of Russian America to the United States to be private property; * *

The body of the act provides as follows:

“That jurisdiction be, and is hereby, conferred on the Court of Claims to hear the claims of John H. Kinkead and Samuel Sussman and Charles O. Wood, for the rent and value of certain buildings in the town of Sitka, in the Territory of Alaska, alleged by them to have been acquired by virtue of purchase from the Russian-American Company, upon the evidence already filed in said court and such additional legal evidence as may be hereafter presented on either side; and if said court shall find that said parties acquired a valid title to said buildings respectively alleged to have been purchased by them, said court shall award to said parties a fair and reasonable rent for the use of said buildings for the time (if any) the same have been occupied by the United States, and also a suitable indemnity for said buildings themselves. * * * ”

The claimant contends that Congress has here decided that the legal title to the building, at the time of its purchase, was still vested in the Russian-American Company, and that the court has only to pass upon the sufficiency of the conveyance from this company to themselves before proceeding to ascertain values.

As bearing upon this contention it may be proper to observe that the only question which has ever been in controversy between the parties was whether the title to the building vested in the defendants by the treaty or remained in the company, That the company owned it before the ratification of the treaty, subject to Russian supremacy, has not been denied by the defendants. Uo questions even about the value or rent of the building were discussed prior to the original suit. Through the lease to Collector Ketchum the claimants had substautially made a proposition to rent or sell; but the Secretary of the Treasury refused to consider because he claimed, as did the Secretary of War, that the Government had acquired title to the building by the treaty. If the question of ownership had been out of the case there is no reason to believe that an agreement for rent might not have been amicably effected, as in other cases.

It is scarcely probable that Congress intended by these five words in the preamble, somewhat parenthetically inserted, to decide the only disputed point in the case. We are therefore induced to believe that the recital of ownership referred rather to the date of the treaty than to the date of the claimant’s deed. (Cummings’s Case, 131 U. S. R.)

However that may be, ibis quite certain the court is required to consider values only after it has found that the claimants had acquired a valid title. This, in the opinion of the court, overrules the recital of the preamble, whatever construction may otherwise be placed upon it.

The petition is dismissed.  