
    THE RUSSIAN-AMERICAN PACKING COMPANY v. THE UNITED STATES.
    [No. 20758.
    Decided May 16, 1904.]
    
      On the P.roofs.
    
    The act 17th May, 1884, provides that Indians or other persons in Alaska “ shall not he disturbed in the possession of any lands actually m their use or occupation." After this enactment and before the act 3d March, 1891, the claimant enters upon land and erects buildings for the canning of salmon. The last act provides that any citizen “ noto or hereafter in the possession of and occupying public lands in Alaska ” may purchase at $2.50 per acre by application to certain officers “ for an estimate of the cost of making a swrvey ” and by depositing the amount therefor. The officers are then to employ a competent person to make such survey, and the survey is to be transmitted for the approval of the Commissioner of the General Land Office. When approved the purchaser is to pay for such land, and a patent to issue. In April, 1892, the claimant applies for a survey and deposits the required amount. A survey is made and forwarded to the Land Office. Before the Commissioner acts thereon the President, by proclamation, reserves the land from entry and warns all persons to depart therefrom. The agents of the United States compel the claimant to depart, leaving the improvements which had been erected on the land. The Commissioner of the Land Office refuses to approve the survey.
    
      I. Tlie Act Sel March, 1891 (26 Stat. L., p. 1095, § 12, 13), assures to persons' who bad entered upon public lands in Alaska only tlie preemptive right to purchase to the exclusion of other persons if the Government should sell the land, leaving unimpaired the Tight of the Government to withdraw the land from entry and sale.
    II. Neither the act of 1891 nor the Act 17th May, lSSl, (23 Stat. L., p. 24, § 8), created a contract whereby the Government was bound to convey land to persons in possession thereof in Alaska or to reimburse them for the improvements which they had made thereon if the lands should be withdrawn from sale. ■ III. -The President had authority at any time before the issuance of a patent to withdraw public lands from sale and .to declare them reserved for public purposes.
    • IV. When a person enters upon public lands without the authority or license of the United States he is a trespasser and acquires no right to be compensated for losses sustained by reason of enforced removal.
    
      The Reporters’’ statement of the case:
    The following are the facts of the case as found by the court: ■
    I. The claimant herein, a corporation, was incorporated under the laws of the State of California in the year 1889 for the purpose of carrying on the business of packing salmon on the island of Afognak, in the Territory of Alaska, and as such corporation in the spring of 1889 purchased and shipped to said island materials for the erection of a cannery and buildings for the purpose of canning salmon, and for that purpose, and without authoritj’ or license from the United States — other than whatever right it may have had under the act of May 17, 1884 (23 Stat. L., 24) — took possession of a site on said island containing about 159.52 acres of land, well covered with timber, from which the trees were cleared, and there was erected thereon a cannery, buildings, machinery, boats, and lighters for the purpose aforesaid, at a cost of $45,000, prior to which time no person or corporation had been in possession of said ground.
    The claimant was, and had been continuously since taking possession of said ground for the purpose aforesaid, occupying and using the same, and wTas in possession thereof at the date of the passage of the act of March 3, 1891.
    
      II. On April 1, 1892, the claimant made application to the United States marshal and ex officio surveyor-general of Alaska for the survey of said tract so entered upon under the provisions of said act of March 3, 1891, and in resxxmse to the notification of said officer deposited in the United States subtreasury at San Francisco $433.80, said sum being the estimated cost of such survey. Thereupon said marshal and ex officio surveyor-general caused a survey of the ground so entered upon to be made, which he numbered 31, approved the same March 15,1893, and forwarded to the Commissioner of the General Land Office for his action.
    III. After the passage of said act of March 3, 1891, and until December 24, 1892, the claimant continued to occupy said tract of land and to carry on its canning business and to keep its plant .in repair. What improvements, if any, were made on said lands subsequent to the passage of the act of March 3,1891, does not appear. Prior to December 24, 1892, the ground so used and occupied by the claimant had not been reserved by the United States for fish culture or any other purpose, nor had the same been purchased, entered, or applied for by any other person or corporation than the claimant. Said land was not mineral in character.
    IY. On December 24, 1892, the President of the United States issued a proclamation declaring the whole island of Afognak, including the site so entered upon, occupied, and improved by the claimant, reserved for the purpose of establishing thereon United States fisli-culture stations and warning all persons to depart thereform. In July, 1893, the agents of the United States for protection of salmon fisheries informed the agents of claimant on said island of said proclamation and ordered claimant company to depart therefrom, which it didj leaving its property thereon, and has not since returned thereto or used the same for the purposes of its business.
    Y. On January 15, 1895, the Commissioner of the General Land Office, considering the survey so transmitted to him, as stated in finding ii, addressed the following letter:
    
      “ DEPARTMENT OP THE INTERIOR,
    “ General Land Office,
    “ Washington, D. O., Jan. 15.1895.
    
    “ To the U. S. Makshal,
    “ Ex Officio Surveyor-General, Sitka, Alaska.
    
    “ Sir : With your letter dated March 15, 1893, was transmitted the plat of field notes of survey No. 31, executed by Albert Lasey, D. S., of a tract of land situated on Afognak Bay, _ Afognak Island, claimed by the Russian-American Packing Co., used for packing and cannery purposes.
    “ The tract embraced in this survey is not in square form, as required by statute.
    _ “ The whole of Afognak Island, its bays, rocks, and territorial waters, including the Sea Lion Rocks and Sea Otter Island, was made a public reservation by the President’s proclamation dated Dec. 24, 1892, which contains the. following proviso:
    “ ‘Provided, That this proclamation shall not be so construed as to deprive any bona fide inhabitant of said island of any valid right he may possess under the treaty for the cession of the Russian possessions in North America to the United States concluded at Washington, on the 13th day of March, 1867.’
    “Afognak Island being a public reservation, and the lands embraced therein being exempted from disposal, survey No. 31 is therefore rejected, and you will notify the parties in interest of their right to appeal within, 60 days.
    “ Very respectfully,
    S. W. Lamoreux, Commissioner.
    
    From which decision of the Commissioner no appeal was taken by the claimant.
    VI. Since the claimant company left said island it has employed a watchman to guard and watch its property, but notwithstanding such care and effort to preserve said property the same has deteriorated in value and is not worth more than one-fifth of its original cost.' To what extent the property was deteriorated in value by use during the years 1889, 1890, 1891, and 1892 does not appear. Nor does it appear that any effort was made by the claimant to sell or otherwise dispose of the improvements made by it on said lands or to remove the same therefrom, or that any objection to such removal was ever made by the defendants.
    VII. During the four years of claimant’s occupation of said site on Afognak Island, namely, in 1889, 1890, 1891, and 1892, it had built-up a large business in the catching and canning of salmon, which business yielded a profit of $100,000 during said four years, of which about $35,000 was subsequent to the passage of the act of March 3, 1891. By reason of the claimant’s removal from the site so entered upon by it pursuant to the President’s proclamation and order as aforesaid, its business was totally destroyed. Said site so occupied was •a valuable one for the purpose of salmon catching.
    Yin. The loss sustained by the claimant in having to remove from the land so entered upon by reason of the President’s proclamation and order aforesaid was in excess of $3,000, exclusive of the sum of $433.80 so deposited by the claimant as set forth in finding n.
    IX. The claimant has never made application for the return of the money paid by it for such survey and has never received from the United States or from any other Government or person any money or compensation whatever for the amount só deposited or for the loss of its property or injury to its business.
    
      Mr. Alexander Britton for the claimant. Messrs. Britton •and Gray, Mr. John Sidney Webb, and Mr. Henry Randall Webb were on the brief.
    We are aware of the decision of the Supreme Court in the Yosemite Valley ease (15 Wall., 71), which holds that—
    “A party by mere settlement upon lands of the United States, with a declared intention to obtain a title to the same under the preemption laws, does not thereby acquire such a vested interest in the premises as to deprive Congress of the power to divest it by a grant to another party — ”
    But we call attention to the fact that in the case at bar there has been something more than mere settlement upon the public lands; that claimant here has erected many and valuable improvements in reliance upon its title and the good faith of the Government; that it has taken every possible step to perfect such title and actually paid to the United States the amount necessary to pay the cost of the proceeding preliminary to making final entry, and would have made such final entry prior to the Executive proclamation of December 24, 1892, had the survey been completed and approved within a reasonable time after the application therefor had been filed and the fees thereon paid by claimant. The case of the claimant herein, therefore, comes less within the doctrine of the Yosemite Valley case, supra, than within the rule laid down in the case of Lytle v. State of ArJcansas (9 How., 333).
    Not only upon principles of right and justice is the United States liable for the losses occasioned to plaintiff by the reservation of the lands claimed by it in Alaska, but also by reason of a statutory enactment. The proviso to section 8 of the act of May 17, 1884, aforesaid, providing a government for the district of Alaska, declared—
    “ 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 them, but the terms under which such persons shall acquire title to such lands reserved for future legislation by Congress.”
    ■ This declaration was a solemn assurance by Congress that the persons in possession of the public lands of Alaska should be permitted to acquire title thereto without being disturbed in their possession. It was in the nature of a statutory contract whereby the United States obligated itself to protect the settlers of Alaska and confer upon them title to the lands occupied by them without the danger of any interference or molestations by others, even the United States itself. (Young v. Goldsteen, 97 Fed. Rep., 303.)
    It will, perhaps, be contended by defendants that claimant is not entitled to the benefits of the act of 1884 because same seems to apply only to persons then in possession, while the Russian-American Packing Company did not enter upon lands in Alaska until the year 1889; but this contention has already been passed upon and overruled by the courts.
    If Congress induced the claimant to enter upon, occupy, and erect valuable improvements on the public domain, and to expend sums of money in attempting to gain title thereto, only to confiscate to the Government the land so occupied and improved, then the provision in the act of 1884 was a hollow mockery, and might better have been omitted from the statute books. If, however, Congress by such provision extended a standing invitation to all citizens of the United Státes to enter upon and develop the vast and theretofore unexploited resources of Alaska, and guaranteed for their enterprise and labors a certain title to the lands exploited, then the act is given a meaning which it would otherwise wholly lack. This is the construction which the court has given to the statute in the above-cited case, and this, we maintain, is the .correct construction. In support of this view it is but necessary to cite the “ future legislation ” mentioned by said proviso, viz, the act of March 3, 1891 (26 Stat. L., 1095), which provides by section 12 for the purchase by any citizen or association or corporation of the United States “ now or hereafter in possession of and occupying public lands in Alaska for the purpose of trade or manufactures ” — a provision without precedent in the his.tory of the public land law of the United States. It will be seen that the act of 1891 not only thus provided for those in possession of Alaskan lands prior to May 17, 1884, but also to those thereafter in possession, and it may be gathered from this fact that the act of 1884 was also intended to embrace both such classes of persons within its provisions.
    We therefore contend that the act of May 17, 1884, amounted to a contract between the United States on .the one side, and those who had then or might thereafter settle upon public lands in Alaska, upon the other. The United States was obligated to perform such contract, or if it broke the same to pay damages for the breach. Wien an American citizen relying upon such solemn assurances of protection, and performing upon his part all the acts necessary to bring himself within that protection and to secure the title guaranteed by the act of Congress, has put himself in such a position that the Government’s breach of its contract will change his status for the worse, it is the bounden legal, as well as moral, duty of the Government to indemnify him for his losses. Such is the case of the Russian-American Packing Company, and such is the duty of the Government in relation to it.
    This contractual obligation of the Government under the act of 1884 was in many respects similar to its obligations under an Indian treaty, which have always been enforced against it by the courts. Thus in the case of United States v. Carpenter (111 U. S., 347) the Supreme Court held land scrip located upon lands reserved for Indians under the provisions of a treaty with an Indian tribe and the issue of a patent therefor are void, and that “ this purpose and the stipulation of the United States could not be defeated by the action of any officers of the Land Department.” This ruling was affirmed in the case of Spalding v. Chandler (160 U. S., 394), wherein was held to be of no effect a Presidential proclamation reserving for public purposes a tract of land which the Government had stipulated by treaty to reserve for the benefit of an Indian tribe — a case “ on all fours ” with the one at bar.
    It will furthermore be observed that the act of May 17, 1884, supra, provided that “ the terms under which such persons (i. e., occupants) shall acquire title to such lands is reserved for future legislation by Congress ” — not for future Presidential proclamation or Executive order. Congress never delegated to the President its power to reserve lands from settlement and occupation for fishery or other purposes (so* far as counsel can ascertain by a diligent search through the volumes of the Statutes at Large), until after claimant had erected valuable improvements upon the lands occupied by it. Therefore claimant is entitled to the full protection of the guaranty extended by the act of 1884 aforesaid, and the case falls within the rule laid down by Judge Deady in The United States v. Tiehenor. (8 Saw., 142,152.)
    It is true that the Oregon donation act of 1850, mentioned in the decision cited, is not identical with the Alaska act of 1884, but with respect to the power of the executive branch of the National Government to intrench upon and nullify their provisions they must be construed alike. Moreover, section 7 of the said act of 1884 (23 Stat. L., 27, 28) extended the general laws of Oregon over the district of Alaska, so far as the same were applicable and not in conflict with the provisions of that act or the laws of the United States; so that the same interpretation of similar laws would seem to be not only proper but requisite.
    
      
      Mr. George II. Gorman (with whom was Mr. Assistant Attorney-General Praclt) for the defendants.
    It is manifest that the act of 1884 did not in any sort create a contract to sell land to anybody, but, on the other . hand, was a mere permission to persons occupying the public lands without any right or authority or a license to remain there unmolested until Congress in the future should see fit to legislate upon the subject. It is absurd to call this a contract. It takes two to make a contract, and since the claimant never accepted the provisions of this statute and never became a party to any agreement of this sort, where is a contract? The absurdity of the situation becomes apparent by looking at the converse of the claimant’s proposition. Suppose the United States should set up the claim that this statute created a contract on its part to sell and on the packing company’s part to buy the land'on this island that they were occupying at such price as might be fixed by future legislation of Congress, and should filé a bill against the packing company for specific performance of such a contract,
    A contract, of course, must be mutual, must be certain, must be definite, and must be founded upon a valuable consideration, and there is utterly lacking in this act of Congress every ingredient of a contract. Up to the date of the passage of this act persons occupying land in the Territory of Alaska where nothing more than squatters, who might be summarily ejected by the United States authorities at any time that they saw- fit. This act of 1884 converted a person thus occupying public land as a squatter into a licensee, and gave him a mere permission to remain in possession of the land until such time as Congress might further legislate upon the subject. Under this act, instead of being a squatter or trespasser, as he had been before, he now becomes a tenant at will of the United States and nothing more. The very most that could possibly be claimed for a person occupying public lands subsequent to the act of 1884 was that in the event that the United States concluded to sell the land to anybody it would give the actual occupant the prior right to purchase at the rate prescribed by Congress, but he had no vested right in the property. He had no property rights whatever. He bad merely the license of the Government to occupy this land as a tenant at will until the Government saw fit to revoke the license.
    It is also perfectly manifest that this act of 1884 can have no application to the Russian American Packing Company, since by the terms of the act itself it is confined to persons actually occupying the land at the date of the passage of the act, and has no sort of application to persons who might thereafter squat upon the public domain without license or authority.
    In contravention of this view, the claimant cites the case of Young v. Golclsteen (91 Fed. Rep., 303), but upon perusal of the case the court will find that all of the remarks of Judge Johnson on this subject were nothing but dicta, and that dicta wholly in conflict with the plain and express Avords of the statute itself.
    In 1884 the territory of Alaska was almost terra incognita. It Avas not known to the Congress what portions of that immense domain might in the future be needed by the United States for its arsenals, its forts, its operations of offense or defense in the protection of its property, the establishment of light-houses, of shipyards, of navy-yards, and the hundreds of unforeseen and unknown necessities of Government that might arise in the future. At that time the population of Alaska was extremety scattered and consisted principally of Indians, trappers, a few fisheries, and miners or mining prospectors. To attribute to the Congress, in the passage of this act, an intent to tie the hands of the Government in all future legislation by absolutely guaranteeing to the Indians and other persons Avho at that time might be occupying portions of the public domain in Alaska the absolute right in the future to acquire title to suqh lands, irrespective of its quantity and irrespective of its location and 'irrespective of its quality, is little or any short of absurdity. Such prodigal squandering of the public domain, such reckless disregard of the future necessities of goArermnent in that unknown territory, such an unwise hampering of future Congresses, can not be imputed to the lawmaking poAver in the absence of plain, express, and unambiguous Avords to that effect. All that was meant by the Congress in the passage of this act was to provide protection to persons who in good faith were living upon the public domain without right, authority, or license, and to change their status from that of squatters to that of licensees. It may be that an equitable interpretation of this statute might be carried to the extent of holding that the United States, by virtue of its passage, impliedly promised to the persons residing upon the land at the date of its passage a preference right to purchase such land as against other private persons in the event that the United States determined in the future to sell the land at all; but to say that by this harmless statute, intended as a piece of mere generosity, the Government absolutely bound itself to sell this land to the people residing upon it at some future day, to be fixed by Congress, is to my mind a perfect absurdity. •
    By the terms of the act of 1891 it will be observed that the inchoate right to purchase provided in this act was not to become consummate until after the land had been surveyed and that survey accepted by the Commissioner of the General Land Office, as provided in the last paragraph of section 13 of the act. In this case the application of the claimant for the survey was made on April 1,1892, and the survey was forwarded to the Commissioner of the General Land Office on March 15, 1893. Between these dates, to wit, on December 24, 1892, the President of the United States issued a proclamation declaring the whole island of Afognak reserved for the purpose of establishing United States fish-culture stations, and warning all persons to depart therefrom. It will be observed, therefore, first, that the claimant waited one year after the passage of the act of March 3,1891, before application was made for the survey, and hence, if any loss resulted from neglect it was the neglect of the claimant in not making his application for survey sooner; second, it will be observed that at the date of the conclusion of the survey, or father of its approval by the' surveyor-general of Alaska, to wit, March 15, 1893, the authority to make the survey or to approve it by the surveyor-general of Alaska no longer existed, by reason of the fact that prior thereto, to wit, on December 24, 1892, the President had p>ro-claimed said island to be a public reservation, and hence, of course, it was withdrawn from settlement or purchase, and under these circumstances the Commissioner of the General. Land Office refused to accept and rejected said surve}', for the reasons, first, that the survey was not in square form, as required by the act of 1891, and for the further reason that prior to the survey being made the island had been withdrawn from the public domain and declared to be a reservation by proclamation of the President. It will be readily seen, therefore, that the claimant has no rights whatever under the act of 1891, unless the President exceeded his authority in proclaiming this island to be a public reservation without the authority of an act of Congress first passed for that purpose. Learned counsel seem to take this position, arguing (upon page 12 of the brief) that the Congress had never delegated to the President its power to reserve lands from settlement or occupation for fisheries or other purposes until after the claimant had erected valuable improvements upon the lands occupied by it. It is not necessary that an act of Congress should be passed to enable the President to withdraw lands from settlement and place them in reservation for public purposes.
    In United States v. Payne (8 Fed. Rep., 883, 888) it was specifically held that the President of the United States can, by proclamation or Executive order, reserve a part of the public domain for a specific lawful purpose and withdraw it from sale or settlement. So, in Grisar v. McDowell (6 Wall., ■363), the court said:
    “ From an early period in the history of the Government it has been the practice of the President to order lands to be reserved from sale and set apart for public purposes, and numerous acts of Congress recognize the authority of the President in this respect as competent authority.”
    See also Wolcott v. Des Moines Oo. (5 Wall., 681). As was said by the court in United States v. Payne (supra), a reservation may be made either by treaty, Executive order, or by act of Congress. f
    
    The requirement in the act of 1891 of the approval of the survey by the Commissioner of the General Land. Office is a condition precedent to the acquirement of any legal title in the land, and prior to such approval, and, indeed, prior to the making of the survey itself, the President, in the exercise of his undoubted authority, withdrew this island from sale or settlement and created it a public reservation for a specific lawful purpose. The only question, therefore, that remains in this case is whether a person who, without warrant, license, or authority, goes upon public lands and erects improvements thereon, and who, while thus in occupancy of the land, is granted permission to purchase the same, under certain conditions precedent, and which land, prior to the happening of the conditions precedent, is withdrawn from the public domain and created a public reservation by Presidential proclamation, has acquired any vested right, title, or interest in the land itself, so that an ouster of him from the land by the .United States will carry with it the legal obligation to respond in damages for the loss of the improvements placed upon the land and the profits arising from his business. This question, it is submitted, is determined by the decision of the Supreme Court in the Yosemite Valley ease (15 Wall., 77) and United States v. Braddoelc (50 Fed. Pep., 669).
    For the claimant in reply:
    Proceeding within a reasonable time in strict accord with the provisions of law, this company applied for the survey of its claims, paid the necessary costs of survey, and upon the approval of same by the surveyor-general deposited the juice of the land. Absolutely nothing further remained for it to do. It had made a valid location; had constructed its plant; had surveyed- its claim, paid the price, and depended upon the United States to issue its patent. These circumstances clearly bring the case within the principles laid down in Lytle v. Arkansas, (9 How., 314).
    Counsel for the United States contends that no vested right had attached, because the Commissioner had not approved the survey, but had rejected it. But why did he reject it? Not because the claim wras illegal and not fully within the law. No; but simply because the President has issued an order reserving the land for fishery purposes. It was not because of any act of commission or omission upon the part of the claimant, and its rights had vested just as much as though the survey had been approved, if, as we contend, it had done everything in its power as required by law to entitle it to such approval.
    The Yosemit'e case cited by counsel is no guide here. That was a case of a mere preemption declaratory statement of a man’s intention to do something which he might never do. The law gave him no interest in the land and his filing offered him no protection. He was not by the filing itself even in the class of actual settlers.
    The claimant in this case falls in that larger and more easily recognized class of claimants with something tangible. A homesteader who makes original entry, settles upon land, and improves it can not be disturbed under the Yosemite doctrine. Why? Because he has something tangible, and because the act of Congress under which he claims is a contract as well as a law, guaranteeing him a patent upon a fulfillment by him of its requirements.
    All acts of Congress providing means of disposing of its vacant public lands are in the nature of contracts, obligating the United States to grant the individual a patent conferring the title upon him whenever he has complied with the provisions of law in that particular case. Whenever the individual, in good faith, initiates a claim by settlement, occupation,, and improvements, he thereby acquires an inchoate right, which must ripen in a perfect title whenever he has completed his period of residence, amount of cultivation, or other specific requirement of the law. Neither the United States nor any third party can defeat his right to acquire this title, excepting through his own failure to meet the requirements of the law. The act of 1891, providing for the entry of lands in Alaska for trade and manufacturing purposes, is closely akin to previous acts of Congress providing for the location of New Madrid certificates in Missouri and the confirmation of donation claims in Washington and Oregon. The validity . of such claims has been the subject of numerous decisions in the courts, and all of them, so far as our knowledge extends, have been to the effect of holding that by the actual use and •occupation of the land, and a compliance with the requirements of the law, the parties have initiated such an inchoate claim of title that will compel the issuance of a patent by the Government, or, if patent is erroneously issued to some third party, a decree by a court of competent jurisdiction that such title is held in trust for the donation claimant. (/Stark v. .Stars, 6 Wall., 415; see also Garland v. Wynne, 20 How., 6; Lindsay v. Hawks, 2 Black, 554.)
    The doctrine of relation referred to in this case is quite old with respect to disposition of the public lands and is more specifically referred to in Landes v. Brandt (10 How., 348, 372); Gibson v. Chotean, (13 Wall., 92, 100).
    The doctrine of relation applies fully to all proceedings before the Land Department looking to- the acquisition of title under the various public-land laws. None of them in and of themselves transfer the legal title of any lands from the Government to the individual. All of them require something from the individual claimant, either in the way •of a location, identifying the land granted a claimant; occupation, indicating the bona fide purpose of the claimant to establish a home; the actual selection by a State or railroad company to identify the tract inuring to it under its grant, ■or, in the case now under consideration, the establishment of a manufacturing plant and the proper survejr of the land embracing the same. All these acts constitute the chain of ■evidence leading up to the issuance of a patent divesting the United States of legal title, and in all of such cases, from the beginning of the initial act, the individual claimant acquires a right to the land selected or located which confers upon him immunity from invasion or interference by the United States or any third party, so as to prevent his further compliance with the law and the ultimate acquisition of the fee-simple title. (Michigan Land and Iron Comyany v. Bust, 168 U. S., 589, 592; Hastings and Dakota Bwy. Co., 18 L. D., 511, 518; see also Hagen V. Northern Pacific, 26 L. D., 312.)
    All of these authorities and many others referred to in the decisions cited are to the effect that when a claimant initiates a bona fide claim to vacant public land of the United States he thereby acquires a right to perfect his title under the law and regulations, and that, upon a full compliance by him with such lawT and regulations, he acquires a vested interest entitling him to the issuance of a patent, and that being entitled to a patent it is the same in the eye of the law as though patent had actually issued.
    “ Wien a tract of land shall have once been legally appropriated for any purpose, from that moment the land thus appropriated becomes severed from the mass of public land, and no subsequent law or proclamation or sale would be construed to embrace it or operate upon it, although no reservation were made of it.” (1 Vilcox v. Jackson, 13 Pet., 498-513; L. L. & G-. v. U. S., 92 U. S., 733; Newhall v. Sanger, 92 U. S., 761-763.)
    It would be just as reasonable to hold that a patent alone can confer rights as to allow the claim of the Government in this case. Aside from the preemption law dealt with in the Yosemite case, every act of Congress providing for the issuance of patents to claimants of its vacant lands guarantees those claimants a patent upon compliance with the law, and the laws would be a farce if, after such compliance, the United States could, through it's Executive, withdraw the land from rights which had already attached. Even mere settlement without entry is protected under all late legislation, such as forest-reservation acts, etc. (Cornelius v. Kes-sel, 128 U. S., 456-461; see also Brown v. Hitchcock, 173 U. S., 478.)
    It is contrary to the most elementary principles of public-land law to say that patent alone can divest the United States of the power of disposing of land, and it is equally erroneous to say that no reciprocal obligation exists unless the United States can force the individual claimant to complete his claim by actual payment for the land. Every act of Congress authorizing settlement upon or entry of its vacant public lands holds out the obligation of the Government to grant the patent. The actual settlement, the occupation and improvement of the land, are the material factors, and rights are thereby acquired which the United States can not and will not repudiate. (Osborn v. United States, 33 C. Cls. R., 304, 306.)
   Peelle, J.,

delivered the opinion of the court:

The claimant, a corporation organized under the laws of the State of California, brings this action to recover, on the theory of an implied contract, damages alleged and found to have been caused to it by being dispossessed of certain lands and improvements thereon, on the island of Afognak, in the Territory of Alaska, by reason of the proclamation of the President, of December 24, 1892, declaring said island of Afognak, including the land so claimed by the claimant, reserved for public purposes.

By the act of May 17, 1884 (23 Stat. L., 24), being an act to provide for “ a civil government for Alaska,” it was provided, by the first proviso of 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 them, but the terms under which such persons may acquire title to such lands are reserved for future legislation by Congress.”

Early in the spring of the jrear 1889 the claimant purchased and caused to be shipped to said island of Afognak materials for the erection of a canning establishment for the purpose of canning salmon, and for that purpose, and without authority or license from the United States other than said act of 1884, took possession of a site on said island containing 159.52 acres of land, and after clearing away the trees thereon erected buildings for the purpose aforesaid at a cost of about $45,000.

Thereafter, and while the claimant was in the possession of said lands and improvements and engaged in the canning-business as aforesaid, Congress passed the act of March 3, 1891 (26 Stat. L., 1095-1100), being “An act to repeal timber-culture laws, and for other purposes,” sections 12 and 13 of ivhich read:

“ Sec. 12. That any citizen of the United States twenty-one years of age, and any association of such citizens, and any incorporation incorporated under the laws of the United States or of any State or Territory in the United States now authorized by law to hold lands in the Territories now or hereafter in the 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: Provided, That in case more than one person, association, or corporation shall claim the same tract of land ihe person, association, or corporation having the prior claim by reason of possession and continued occupation shall be entitled to purchase the same; but the entry of no person, association, or corporation shall include improvements made by or in possession of another prior to the passage of this act.
“ Sec. 13. That it shall be the duty of any person, association, or corporation entitled to purchase land under this act to make an application to the United States marshal, ex ojfieio surveyor-general of Alaska, for an estimate of the cost of making a survey of the lands occupied by such person, association,.or corporation, and the cost of the clerical work necessary to be done in the office of the said United States marshal, ex offi,cio surveyor-general; and on the receipt of such estimate from the United States marshal, ex officio surveyor-general, the said person, association, or corporation shall deposit the amount in the United States depository, as is required by section numbered twenty-four hundred and one, [Revised Statutes, relating to deposits for surveys.
“ That on the receipt by the United States marshal, ex officio surveyor-general, of the said certificates of deposit, he shall employ a competent person to make such survey, under such rules and regulations as may be adopted by the Secretary of the Interior, who shall make his return of his field notes and maps to the office of the said United States marshal, ex officio surveyor-general; and the said United States marshal, ex officio surveyor-general, shall cause the said field notes and plats of such survey to be examined, and if correct approve the same, and shall transmit certified copies of such maps and plats to the office of the Commissioner of the General Land Office.
“ That when said notes and plats of said survey shall have been approved by the said Commissioner of the General Land Office, he shall notify such person, association, or corporation, who shall then, within six months after such notice, pay said United States marshal, ex officio surveyor-general, for such land, and patent shall issue for the same.”

On April 1, 1892, the claimant made application, as provided by said section 13, and Revised Statutes, section 2401, to the United States marshal and ex officio surveyor-general of Alaska for a survey of the tract so entered upon by it under the provisions of said act of March 3, 1891; and under the direction of said marshal deposited in the subtreasury at San Francisco $433.80, being the estimated cost of such survey. Thereafter said marshal and ex officio surveyor-general caused the survey of the ground so entered upon to be made, which he numbered 31, approved the same and forwarded it to the Commissioner of the General Land Office. But before the Commissioner had acted thereon the President issued a proclamation declaring the whole island of Afognak, including the site so entered upon by the claimant, reserved for fish-culture stations, and warning all persons to depart therefrom. Pursuant to that proclamation the agents of the United States notified the claimant’s officers thereof and ordered them to depart, which they did, leaving the improvements they had erected thereon, which have since been cared for by a watchman, though the property, for want of use, has deteriorated and been materially reduced in value, but to what extent by use does not appear.

January 15, 1895, the Connnisioner of the General Land Office, considering the survey so made and transmitted to him for his action, declined to approve the same, assigning as his reasons therefor that the tract embraced in the survey was not in square form, as required by the act of 1891, and for the further reason that “ the whole of Afognak Island, its bays, rocks, and territorial waters, including the Sea Lion Rocks and Sea Otter Island, was made a public reservation by the President’s proclamation, dated December 24,1892.” For the reasons stated the survey Avas rejected and the marshal AA7as directed to notify the parties in interest of their right to appeal within sixty days, but no appeal appears to have been taken by the claimant, nor does any application appear to have been made for the return of the money so deposited.

During the period of the claimant’s occupancy and conduct of its business on the site in the years 1889, 1890, 1891, and 1892 a business AA7as built up from which the claimant derived a large profit. By reason of having to remove from the lands the claimant has been greatly damaged. No improvements appear to have been made on said lands subsequent to March 3, 1891.

The claimant’s contention is that by virtue of the act of 1884 a contract arose whereby the claimant was given permission to enter upon and occupy said lands, with the right to. purchase the same from the Government upon terms to be thereafter fixed by Congress, and that having complied with the terms of the act of 1891 it thereby became entitled to have said lands surveyed and a patent issued vesting in it the title to said lands, and that on failure so to do and dispossessing the claimant the Government is bound to respond in damages as for a breach of such contract.

The defendant’s contention is that the President had the authority at any time before the issuance of the patent to withdraw the lands from sale and to declare the same reserved for public purposes, and that therefore, as such patent had not issued to the claimant, the title to said lands never vested in it, without which the claimant could not have been divested of any right from which an implied contract could arise to pay it for the improvements so made on said land,, or from any loss of profits arising from its business.

By the act of 1884 providing a civil government for Alaska, it was provided, in respect to those persons then in the actual use or occupation of any lands in said district or then claimed by them, that they should not be disturbed in their possession. Such possession had been acquired prior to the organization of such civil government, ■ and maybe prior to the cession of Alaska to the United States. It was. doubtless for these reasons that the provision was inserted in the act, but the terms under which such persons might acquire title to such lands were reserved to future legislation by the Congress.

When the claimant entered upon the lands and erected thereon buildings for the purpose of conducting its business, it did so without the authority or license of the United States — none being given by the act of 1884 — and was therefore a trespasser. Therefore, as the claimant was not, when that act was passed, in the actual use or occupation of the lands here in controversy, and was not then claiming the same, the act of 1884 has no application to it, and hence no rights can be claimed thereunder. We are, therefore, unable. to concur in the construction given to that act by the District Court of Alaska in the case of Young v. Goldsteen (97 Fed. Rep., 303), holding that the act applied to those persons going upon the lands subsequent to the passage of the act.

But as the claimant was, in its own wrong, in the possession of the lands so entered upon when the act of March 3, 1891, was passed, the remaining question is, What rights, if any, did the claimant acquire under that act from which a contract can be implied to compensate it for losses sustained by reason of its enforced removal from the lands ?

The claimant being at the time of the passage of the act a corporation organized under the laws of California, was authorized to hold lands in the Territories, and being then in the possession of and occupying the lands in question for the purpose of trade or manufactures, was entitled to purchase not exceeding 160 acres, to be taken as near as practicable in a square form, of such lands at $2.50 an acre.

But was the claimant, as against the United States, entitled to have the survey approved by the Commissioner and a patent issued vesting in it the title to said lands after the President, in the exercise of his power, had issued his proclamation declaring the whole of the island upon which the land was situate reserved for public purposes? (Grissar v. McDowell, 6 Wall., 336; United States v. Payne, 8 Fed Rep., 833-888, and Wolcott v. Des Moines Co., 5 Wall., 681.)

Although prior to the passage of the act of 1891 the claimant had without authority entered upon the land in question and erected thereon buildings and machinery, it was, by reason of its possession and occupancy,'given the right to purchase not exceeding 160 acres of land for the purpose of trade or manufactures, upon the terms and conditions stated in the act. Such right, however, ivas no greater than that given by the act to those who might thereafter, for the purpose stated, be in the possession or occupancy of such lands. In this respect, therefore, the act of 1891 differs from the act of 1884. By the act of 1891 the claimant’s occupancy was recognized for the purpose of giving it the right to be preferred in the purchase of such lands if offered for sale, but as no patent was issued to the claimant the title to said lands never vested in it.

In the Yosemite Valley case (15 Wall., 77-87) it was held, following the case of Frisbie v. Whitney, (9 Wall., 187-194) —

“that under the preemption laws mere occupation and improvement of any portion of the public .lands of the United States, with.a view to preemption, do not confer upon the settler any right in the land occupied, as against the United States, or impair in any respect the power of Congress to dispose of the land in any way it may deem proper, and that the power of regulation and disposition conferred upon Congress by the Constitution only ceases when all the preliminary acts prescribed by those laws for the acquisition of the title, including the payment of the price of the land, have been performed by the settler. When these prerequisites have been complied with the settler for the first time acquires a vested interest in the premises occupied by him, of which he can not be subsequently deprived. He is then entitled to a certificate of entry from the local land officers, and ultimately to a patent for the land from the United States. Until such payment and entry the acts of Congress give to the settler only a privilege of preemption in case the lands are offered for sale in the usual manner; that is, the privilege to purchase them in that event in preference to others. The United States by those acts enter into no contract with the settler and incur no obligation to anyone that the land occupied by him shall ever be put up for sale. They simply declare that in case any of their lands are thrown open for sale the privilege to purchase them in limited quantities at fixed prices shall be first given to parties who have settled upon and improved them. The legislation thus adopted for the benefit of settlers was not intended to deprive Congress of the power to make any other disposition of the lands before they are offered for sale or to appropriate them to any public use.”

The claimant contends, however, that inasmuch as it had erected valuable improvements upon the land in reliance upon its title and the good faith of the Government, and had paid the amount necessary to defray the expenses of the proceedings preliminary to making a final entry, that therefore the case comes more nearly within the rule announced in the case of Lytle v. State of Arkansas (9 How., 314-333), where it is said:

“ It is a well-established principle that where an individual in the prosecution of a right, does everything which the law requires him to do, and he fails to attain his right by the misconduct or neglect of a public officer, the law will protect him. In this case the preemption right of Cloyes having been proved; and an offer to pay the money for the land claimed by him, under the act of 1830, nothing more could be done by him and nothing more could be required of him under'that act. And subsequently, when he paid the money to the receiver, under subsequent acts, the surveys being returned, he could do nothing more than to offer to enter the land, which the register would not permit him to do. This claim for preemption stands before us in a light not less favorable than it would if Cloyes or his representatives had been permitted by the land officers to do what in this respect was offered to be clone.”

But that case is quite different from the one before us. There the contest was between two claimants to lands open for sale. Here the contest is between the claimant and the Government respecting lands withdrawn from sale; and, having been withdrawn from sale, no right of preemption could attach, unless the proclamation of the President reserving the lands for public purposes was in violation of law.

The claimant doubtless by what it did acquired as against all but the United States the right to purchase the land if open to sale, or as was said in the Yosemite Valley case—

“ Such claim, it must be remembered, is only a claim to be preferred in the purchase of lands of the United States in limited quantities, at fixed prices, when the lands are offered for sale in the usual manner. When one has acquired this claim by complying with the conditions of the law for its acquisition he has a legal right to be thus preferred when the sale is made as against others asserting a similar right under the law which the court will enforce in proper cases. But the claim of preemption, as already said, can never arise when the law does not provide-for a sale of the property. Until thus’ sanctioned by the law the claim, as stated by the court in that case (Lytle v. State of Arkansas), has no existence as a substantive right.”

That the President had the authority by proclamation to withdraw the lands from sale and to set them apart for public purposes has been frequently decided, and therefore no neglect or fault can be attributed to him in the premises. In the case of Grissar v. McDowell (6 Wall., 363-381), in speaking of the authority of the President in this respect, the court said:

“From an early period in the history of the Government it has been the practice of the President to order, from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public uses. The authority' of the President in this respect is recognized in numerous acts of Congress. Thus, in the preemption act of May 29, 1830, it is provided that the right of preemption contemplated by the act shall not ‘ extend to any land which is reserved from sale by act of Congress, or by order of the President, or which may have been appropriated for any purpose whatever.’ ”

To the same effect also is the case of United States v. Payne (8 Fed. Rep., 883-888).

True, the right to purchase not exceeding 160 acres of land was given to the claimant by the act of 1891 on the condition, among others, that it was in the possession of and occupying such lands for the purpose of trade or manufactures, but such right can not be construed as depriving the Government of its superior right to withdraw such lands from sale and to set them apart for public purposes prior to the issuance of a patent therefor. Hence any improvements made on such lands before they were withdrawn from sale and reserved for public purposes was at the risk of those seeking to purchase. But with respect to the money deposited with the proper agent of the Government, set forth in finding ii, it is shown that the same was deposited on the faith of the act of 1891, and the Government having withdrawn the lands from sale and thereby denied to the claimant a patent vesting in it the title to such lands, the claimant is entitled, in lieu of the lands, to a return of the money so deposited, and for that amount judgment is ordered to be entered.

Weldon, J., did not sit in this case and took no part in the decision.  