# Kinkead v. United States/Opinion of the Court

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Shiras
United States Supreme Court
150 U.S. 483
Kinkead v. United States
Petitioners' title to the building in question which they claim to have bought of the Russian-American Company, a Russian corporation, soon after the cession of Alaska to the United States, depends upon the construction to be given to the treaty of March 30, 1867, between his majesty, the emperor of Russia, and the United States, (15 Stat. 539,) the correspondence and protocol connected therewith, and the act of congress of January 17, 1887, referring this claim to the court of claims for adjudication. Upon the hearing in the court of claims the court found 'that 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 belonged to Russia, and was thus embraced in the cession to the United States.'
This building was erected in 1845 by the 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 2, (which relates solely to proceedings taken for the transfer of the ceded territory,) 'does not appear.'
By the first article of the treaty the emperor makes cession of 'all the territory and dominion now possessed by his said majesty on the continent of America and in the adjacent islands, the same being contained in the geographical limits herein set forth, to wit,' (boundaries,).
The second article provided that 'in the cession of the 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.'
Article 4 provides for the appointment of an agent for each government, for the purpose of making and receiving formal delivery of the ceded territory, 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 ratifications, without waiting for such formal delivery.'
Article 6 provides 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.'
It should be added in this connection, and as explanatory of the sixth article of the treaty, that on March 23, 1867, Mr. Seward, then secretary of state of the United States, addressed a letter to the Russian minister, in which he stated: 'I must insist upon that clause in the sixth article of the draft which declares the cession to be free and unincumbered by any reservations, privileges, franchises, grants, or possession 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.' To this letter the Russian minister made reply that he believed himself 'authorized to accede literally to this request on the conditions indicated' in the note of the secretary.
In pursuance of the fourth article of the treaty, the president appointed Gen. Rousseau commissioner to receive the formal transfer of the ceded territory, with instructions to 'enter into communication with Captain Pestchouroff, the Russian commissioner, now here, and arrange with him with regard to proceeding as soon as may be convenient to the territory,' etc. '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, dockyards, 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 other similar shops, ice houses, flour and saw mills, and any small barracks 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 commissioners were further instructed to draw up and sign full inventories, distinguishing between the property to be transferred to the United States and that to be retained by individuals; and were also instructed to furnish the proprietors of individual property with a certificate of their right to hold the same upon production of documentary or other proof of ownership.
'As it is understood that the Russian-American Company possess in that quarter large stores of furs, provisions, and other goods now at Sitka, Kodiak, and elsewhere on the main land 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.'
In his report of his proceedings, Gen. Rousseau stated: 'I found that by the charter of the Russian-American Company it had authority to vest in its employes, occupants of land in the territory, the title thereto. This was on condition, 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 employes on lots of ground set apart for the purpose. The title in fee to such premises was often vested in the employe in possession when he had faithfully served out his term in 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 employes, and that very many of the dwellings erected by the company were occupied by employes 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 action 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 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 defined to it, 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 [now 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 employes, 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 any wise 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.'
In a joint report of the commissioners, termed a 'protocol,' it was stated that there had been delivered to Gen. Rousseau 'the forts and public buildings, including the governor's house, dockyards, blockhouses, barracks, batteries, hospitals, wharves, and schools in the town of New Archangel, an inventory of which, marked 'A,' was attached. 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 in presented in inventory marked 'C,' attached to and made part hereof. In inventory marked 'D,' attached to and made part hereof, are shown the house and buildings owned by private individuals in New Archangel, the owners thereof having no title in fee to the lands on which they are situated.'
The court of claims found that '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 of which have no title in fee to the land on which they are situated.' No owner of this building was named.
The court further found that after the transfer 'William S. Dodge was appointed collector of customs at Sitka, and in June or July, 1868, he was in possession and occupancy of the northern part of the building described in the claimants' petition, which he used as a custom warehouse. At the same time and afterwards the claimant Sussman was in the occupancy of another part of the building.' This occupancy was continued by Dodge and his successors in the office of collector of customs.
In 1869, it having been reported to the war department that a very large part of the property which belonged to the Russian Fur Company was enjoyed by persons claiming title by purchase from that company after the cession of the territory, the secretary of war directed the military commander of the department of Alaska to take possession of and retain in his charge all posts, buildings, etc., which were not in fact entitled to be considered individual property. In pursuance of this order, the commanding general took possession of the entire building in question, which has since been claimed and occupied by the government.
Claimant Kinkead protested against this seizure, claiming that the building had been designated as private property; that it had been purchased of the Russian-American Company; and that the title acquired was good, valid, and legal.
It further appeared that in December, 1868, Mr. Ketchum, then collector of customes, assumed to lease from Sussman, as agent for Louis Sloss, to whom the Russian Company had given a deed, part of the warehouse in question at a monthly rental of $200. This lease, however, was promptly disapproved by the secretary of the treasury, who advised him that no building could be hired by him for any purpose without the previous assent of the department.
It appeared that the territory of Alaska had, prior to its cession to the United States, been occupied by a Russian corporation known as the Russian-American Company, a corporation largely engaged in fur trading. This company had the privilege of making use of the public lands and erecting buildings thereon. It had no right, however, of becoming the owner of such lands, but did have the privilege of conveying parcels of it in fee simple to its employes. Pursuant to this privilege, it had made conveyance of certain of these lands to its employes, upon which had been constructed the dwellings erected by the company, and occupied by such employes, their widows or children. Apparently, however, it had no right to accquire for itself any title to the soil, and enjoyed nothing more than the use of the land upon which its buildings were situated, the dominion or right of property therein remaining in the Russian government. The company appears to have possessed not only the ordinary powers of a trading corporation, but certain governmental powers, which it exercised arbitrarily, if not despotically, over the entire territory. It had a monopoly of the trade of the territory, and appears to have been in fact a provincial government of the Russian empire.
As no question is made but that the land upon which this building is situated belonged to the Russian government, and that the building was erected in 1845, by permission of the emperor, for the use of this company in the storage and sale of its furs, and for other trading purposes, and was so constructed of heavy, hewn logs as to be incapable of removal, no good reason is apparent for excepting it from the ordinary rule which attaches such buildings to the realty. The presumption is that buildings belong to the owner of the land on which they stand as a part of the realty. 'Quicquid plantatur solo, solo cedit.' 'If one erects a permanent building, like a dwelling house, upon the land of another, voluntarily, and without any contract with the owner, it becomes a part of the realty, and belongs to the owner of the soil.' Madigan v. McCarthy, 108 Mass. 376; Tayl. Landl. & Ten. § 544.
It is true there is abundant authority for holding that buildings may, by agreement of parties, be erected upon land without becoming affixed thereto, and that neither the mode of annexation nor the use thereof is conclusive as to the intention of the parties, although the presumption is that the building so erected becomes a part of the freehold. Wood v. Hewitt, 8 Q. B. 913; Crippen v. Morrison, 13 Mich. 23; Mott v. Palmer, 1 N. Y. 564; Sudbury v. Jones, 8 Cush. 184; Howard v. Fessenden, 14 Allen, 124.
The extrinsic evidence, however, in this case, so far from showing an intention on the part of the Russian government that this building should not pass under the treaty, evinces a determination on the part of both governments that it should so pass. Not only did the land belong to the Russian government, but the building was of a size and construction such as to render it practically impossible of removal. The correspondence between the secretary of state and the Russian minister with reference to the sixth article contemplates that there were 'reservations' and 'possessions' owned by associated companies, Russian or other, which were to pass under the treaty, and the sum of $200,000 was added to the consideration money to cover the cession of such properties. More explicit words than those used in article 6 to distinguish between the property of associated companies, 'corporate or incorporate, Russian or any other,' and merely 'private individual property holders,' could scarcely be chosen to express the determination of both countries that the cession should be free, and unincumbered by any reservations, privileges, franchises, grants, or possessions of incorporated companies. The private property of individual holders was evidently exempted from the cession for the reason that, while the Russian-American Company could not acquire title to the real estate occupied by itself, it could confer such title upon those of its employes who desired to make homes for themselves in that territory. There can be no good reason to doubt that it was intended by this designation of private individual property to include as within the cession not only all real property belonging to the government, but all buildings erected by its permission upon such property, except such as belonged to individuals. Whether the Russian government had the right to make this disposition of the property of the Russian-American Company involves questions of Russian law, which we are not compelled to pass upon. It is enough that the emperor assumed to deal in this way with the property of his subjects. Inasmuch, however, as $200,000 were added to the price originally agreed upon in consideration of the cession of the property of associated companies specified under the sixth article, and as the Russian-American Company appears to have been the only corporation existing in the territory to which the terms of this cession could apply, we may safely assume that this amount was intended to compensate it for its interest in the buildings erected by it. Its charter had already expired in 1862, and had not been renewed at the time of the cession Its franchises had, therefore, been extinguished, and it can hardly be assumed that the letter of Mr. Seward was intended to be confined to such franchises.
It may be remarked in this connection that there is a manifest inconsistency in the positions assumed by the petitioners. Their only right in this building is derived from a deed of the land which confessedly belonged to the Russian government. Yet the whole theory of the petitioners' case rests upon the assumption that the building was erected under such circumstances that it was not intended to become a part of the freehold. Consistency, then, would seem to require that the deed should be of the building alone, whereas it is, in fact, a deed of the land, and can only pass the building upon the theory that the building was affixed to the land,-a theory quite inconsistent with the petitioners' contention. If the building were so constructed as to be removable, there would be some reason for saying that it was not contemplated that it should become a fixture; but the difficulty with petitioners' claim is that they cannot assert title to the building without also asserting title to the land.
It is insisted, however, that the contemporaneous construction of the treaty by those who were authorized to carry it into effect was such as to indicate that the property of the Russian-American Company was not intended to pass. The instructions of the government to Gen. Rousseau were that 'the transfer will include the forts and military posts and public buildings, etc., all public lands, and all ungranted lots of land, etc., while private dwellings and warehouses are subject to the control of their owners, and are not included in the transfer. * * * In order, however, that the said individual proprietors may retain their property as aforesaid,' he was authorized to give them a certificate of their right to hold the same. The words 'private dwellings' and 'individual proprietors,' used in these instructions, should be construed in connection with the treaty, which resered only 'private individual property.' Obviously it was beyond the power, even of the Russian government itself, without a gross violation of the treaty, to enlarge the exception of private individual property so as to include all private property, whether owned by corporations or individuals. In his report of his proceedings, Gen. Rousseau stated that the town was built mainly 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;' that 'although it had authority to invest the title to land in its employes, it had no authority to invest such title in itself;' that 'all the buildings in any wise used for public purposes were delivered to the United States commissioner, * * * and in a spirit of liberality the wharf and several valuable warehouses, belonging to the Russian-American Company, were included in the transfer.' Whether this was one of the warehouses included in the transfer does not clearly appear, though it was contained in inventory D, which showed the houses and buildings owned by private individuals, the owners having no title to the fee in the land. It is quite clear, however, that it was never intended to invest the commissioners with judicial power to determine the title to property in Sitka, or to pass finally upon the question whether a particular building passed under the treaty or not. If, for instance, the commissioners had inventoried a certain house as the property of A., when in fact it was the property of B., no one would seriously claim that such act would transfer the property from B. to A.; or, if they had assumed to list the property of an individual landowner as the property of the government, or the Russian-American Company, that it would in any manner change the title to such property, or estop the real owner to assert his title thereto in a court of justice. So, if they assumed to list the property of the Russian-American Company as 'private individual property,' within the language of the treaty, it certainly would not operate to vest a good title in any one who might see fit to purchase such property from the Russian-American Company, even if he purchased upon the faith of such inventory, as Sloss appears to have done in this case. The truth is, the powers of the commissioners were simply ministerial, and the making of inventories simply a matter of convenience, and a method of determining prima facie what property the government should appropriate to itself for the time being, and what should be left to the individual proprietors. To treat this inventory as binding, either upon the government or individuals, would be to acknowledge that the commissioners were invested with judicial powers to determine the title to property. Clearly, they had no power to depart from the plain language of the treaty, and no power to bind the government by an assumption that government property was private property, and thus settle questions of title or ownership. The weight that has been given to contemporaneous construction has never gone to the extent of holding that the title or ownership of property may be changed by the action of executive officers appointed to carry a statute or treaty into effect.
The case of Comegys v. Vasse, 1 Pet. 195, relied upon by the petitioners, is readily distinguishable from the case under consideration. In the treaty with Spain for the cession of Florida, the United States undertook to make satisfaction of certain claims of Spanish subjects; and, by article 11, to ascertain the full amount and validity of those claims, a commission, to consist of three commissioners, was to be appointed 'to receive, examine, and decide upon the amount and validity of all claims,' etc. Such commissioners were to act under oath for the faithful discharge of their duties, and were authorized to hear and examine witnesses upon oath, and to receive all suitable testimony. In other words, they were invested with judicial power to pass upon these claims; and their decision, within the scope of this authority, was held to be conclusive and final. Said Mr. Justice Story, (page 212:) 'The parties must abide by it as the decree of a competent tribunal of exclusive jurisdiction.' But even in this case it was held that their authority did not extend to the adjustment of all conflicting rights of different citizens to the fund so awarded. The rights of the several claimants to the fund were left to the ordinary course of judicial proceedings in the established courts of justice. The powers of the commissioners in this case were evidently of a very different character from those delegated to Gen. Rousseau.
It is further contended that the court of claims was estopped to consider the question of title by the recitals in the act of congress referring this claim to that court, in which the building in question is recognized as having been the property of the Russian-American Company. The act (24 Stat. 358) recites that: 'Whereas John H. Kinkead, of Nevada, and Samuel Sussman, of California, did * * * purchase a certain building situated,' etc., 'from the Russian-American Company, the owner of said building; and
'Whereas said building had been declared by the protocol of the transfer of Russian 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 afterwards 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 commissioner appointed to ascertain private property had certified the same to be private property: * * *
'Therefore be it enacted, * * * that jurisdiction be, and is hereby, conferred on the court of claims to hear the claims,' etc., 'for the rent and value of certain buildings * * * 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 said parties a fair and reasonable rent,' etc.
In other words, the court of claims is required to find First, whether the petitioners acquired a valid title; second, what shall be deemed a fair and reasonable rent; third, a suitable indemnity for the buildings themselves. Now, as the question whether the petitioners had a valid title to these buildings depended, not upon the fact of purchase from the Russian-American Company, which was admitted in the first recital of the statute, and never denied by any one, but upon the title of the Russian-American Company, and its right to convey, which had been called in question by the refusal of the secretary of the treasury to allow the petitioners' claim for rent, it is impossible that congress could have intended by the recital to estop the court of claims from passing upon the very question referred to it for judicial determination. Petitioners assert that the whole object of the act was to permit the court of claims to pass upon the reasonableness of the rent, and the value of the building. This theory, however, is not only wholly inconsistent with the enacting words, but with the position assumed by the officers of the government prior to the enactment in question. Indeed, there had been no dispute between the parties as to the amount of the rent; but there had been a seizure of the property by a military officer of the United States, under express directions of the secretary of war, and a total repudiation by the secretary of the treasury of the act of Ketchum, collector of customs, in assuming to lease this building, and a denial of any claim for rent. In the face of these proceedings, it is wholly improbable that congress should have admitted the ownership of the Russian-American Company, which was the question upon which the liability of the government wholly depended. Petitioners insist that the court of claims should have accepted the preamble as a correct recital of the fact, and should have determined-First, whether the petitioners had acquired the building in controversy by virtur of purchase from the Russian-American Company; and, second, whether the petitioners had acquired a valid title to said building. The fact that Kinkead and Sussman had purchased the building was as distinctly set forth in the first recital as that the Russian-American Company was the owner; and, if it were unnecessary for it to determine one question, it was equally so to determine the other.
It is well settled, however, that a mere recital in an act, whether of fact or of law, is not conclusive, unless it be clear that the legislature intended that the recital should be accepted as a fact in the case. End. Interp. St. § 375. It was stated by the court in Branson v. Wirth, 17 Wall. 32, 44, that 'whilst the recital of public acts are regarded as evidence of the facts recited, it is otherwise, as we have seen, with reference to private acts. They are not evidence, except against the party who procured them.'
We are referred, however, to the case of U.S. v. Jordan, 113 U.S. 418, 5 Sup. Ct. 585, as sustaining a contrary doctrine. In this case an act of congress provided 'that the secretary of the treasury be, and he is hereby, authorized and directed to remit, refund, and pay back, out of any moneys in the treasury not otherwise appropriated, to the following named citizens of Tennessee: * * * the amount of taxes assessed upon and collected from the said named persons, contrary to the provisions of the regulations issued by the secretary of the treasury,' etc. Jordan was one of the parties named in the act. The secretary of the treasury having construed the act to mean only that such sums should be refunded as were collected from the persons named contrary to the provisions of the regulations issued by the secretary of the treasury, this court held that the statute did not admit of that interpretation, nor leave open any question for the court or for the accounting officers of the treasury, except the identity of the claimants with the persons named in it. 'Although the act,' said Mr. Justice Blatchford, 'speaks of the sums as being 'the amount of taxes assessed upon and collected from the said named persons contrary to the provisions of the regulations' named, there is no indication of any intention to submit to any one the determination of the question whether the taxes in any case were collected contrary to the provisions of such regulations, or of the question how those provisions are to be construed.'
It needs no argument to show that there is a wide distinction between an act directing a particular thing to be done, and an act reciting the existence of certain facts which had long been a matter of dispute, and which the court of claims was authorized by the act to pass upon and determine.
Counsel have also seen fit to lay before us the report of a senate committee accompanying the bill, which afterwards became the act of January 17, 1887, which report was in favor of the justice of the claim. In accordance with this report the committee submitted a bill conferring jurisdiction upon the court of claims to hear this claim upon the evidence already filed, and such additional legal evidence as might be presented, and directing said court to award a fair and reasonable rent, etc. The bill, however, was amended upon the floor of the senate by inserting the words, 'if said court shall find that said parties acquired a valid title to said buildings, respectively, alleged to have been purchased by them,' thus evincing a clear intention on the part of the senate to require the petitioners to satisfy the court of the validity of their title to the building. We think it clear there is nothing in the recital of the act which even throws a doubt upon the intention of congress to require the court to be satisfied of this fact.
The truth is that the whole case of the claimants depends upon the question whether the government was bound by the proceedings of the commissioners in the execution of the treaty. As we have already expressed the opinion that they possessed no power to vary the language of the treaty, or to determine questions of title or ownership, it results that their action was not binding upon the government.
The judgment of the court below is therefore affirmed.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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