#### JOHN H. KINKEAD AND SAMUEL SUSSMAN v. THE UNITED STATES.

No. 12364

April 30 and

June 11, 1883.

The collector at the port of Sitka, Alaska, for customs purposes, in 1868, took a lease of some property there, but the Secretary of the Treasury disapproved of it, claiming title to the property in the United States.

The claimants sue for rent under that lease. They also sue for occupation of property, to which they claim title by a conveyance, the validity of which depends upon the terms of the treaty of cession of Alaska to the United States by the Russian Government.

Held:

I.A collector of customs had no authority under section 219 of the *Act of March*2,1799, $ 21 (1 Stat. L., 642), to take a lease of property for the Government without authority from the Secretary of the Treasury.

II.Rent cannot be recovered by the real owner of property in possession of the United States where it is hold by the Government under a claim of title. An implied contract does not arise in such case to pay rent for that which the occupant claims to own.

III.Under Rev. Stat., § 1066, this court has no jurisdiction of any claim-against the Government dependent upon treaty stipulations entered into with foreign nations. When, therefore, it appears that a claimant’s right to recover depends upon the terms of a treaty, the court has no further jurisdiction in the matter.

The following are the facts found by the court:

I. On the 18th of October, 1867, the territory of Alaska was formally transferred by Russia to the United States, at Sitka.

II. 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-*505building described in the claimants’ petition, which was 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 to over 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.

III. Before and after the said last-named date General Jefferson 0. 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 Maksout-off, since tho cession of that Territory to the United States, the Secretary of War directs that you take possession of and retain in yonr charge all posts, buildings, etc., which are not 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---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.

IV. On the 2d of June, 1869, the claimant Kinkead, styling himself “ attorney for the owners,” protested in writing to Gen-*506«ral Davis against bis action in taking possession of said building. In bis protest be claimed that tbe building bad been designated as private property by tbe commissioners appointed by tbe Government of Eussia and that of tbe United States; that it bad been purchased of Prince Maksoutoff, chief factor of tbe late Eussian American Company, and that tbe title acquired through that purchase was good, valid, and legal. Tbe title thus set up was what purported to be conveyed by a deed to Louis Sloss, dated October 28, 1868; but though tbe deed was made to him, tbe claimants assert, and be admits, that tbe beneficial interest in tbe conveyance is in them. Tbe 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 Kussian 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 nnto the said party of the second part, and to his heirs and assigns forever, all that certain i>iece 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 (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 Kussia, and therein declared to he private property.

Together with all and singular the tenements, hereditaments, 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, xiroperty, 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 i>arcel thereof, with the apx>urtenances.

To have and to hold, all and singular, the said premises, together with the apjmrtenanees, 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 o£ 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.

*507In witness wliereof tlie said party of tlie first part lias hereunto caused its ■corporate seal to he affixed, and these presents to he subscribed, by their ■chief administrator, the day and year first above written.

< [SEAL OF THE RUSSIAN ? *l*AMERICAN company.] $

P. MaICSOOTOFF, *Chief Administrator of the Russian American Company.*

V. 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 Snss-maii, 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 i>arty of the second x>arfc so much of the warehouse adjoining 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 the map and inventory D attached to and made a jiart of the protocol of the transfer of the Territory of Alaska by Russia to the United States, and therein declared to he 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 tlie said premises in as good state and condition as reasonable use and wear theroof 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~i months next ensuing, that is to say, from and after the loth day of December, 1868, and before the fifteenth day of *508September, 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 instrument first above written.

Sam’l Sussmak, [seal.]

*Ag’t for Louie Sloss.*

Hikam Ketchum, Jr. [seal.]

VI. 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. John Mullan*and *Mr. George A. King*for the claimants:

1. As to the powers of the Russian American Company and its rights and franchises, both public and private, see Ex. Doc. 177, Fortieth Congress, Second session, H. R., and as to the facts attending the transfer of Alaska from Russia to the United States in 1867, see Ex. Doc. 125, Fortieth Congress,. Second session, H. R. The building in question was private property and cannot be divested by the treaty of cession of Alaska. (Public Treaties of the U. S., 671; Halleck, International Law, 122, 123; *Henderson*v. *Poindexter,*12 Wheat., 535; *Poulard*v. *United States,*4 Pet., 511;. *United States*v. *Arredondof**5096 ibid., 691; *Delassus*v. *United States,*5 ibid., 117; *Strother*v. *Lucas,*12 ibid., 436.) . *tr*

2. The lease was properly made by the collector of customs, under the *Act of March*2,1799 (1 Stat. L., 642, now Rev. Stat., § 2621).

3. The direction of the Secretary of the Treasury to continue in possession was a clear ratiñcation *in pais. (Burns’s Case,*7 C. Cls. R., 219; *Cohen’s Case,*15 ibid., 253.) The Government cannot dispute the title of the claimants. (Taylor’s Landlord and Tenant, 629, 655; *Stott*v. *Rutherford,*92 U. S. R., 107.)

4. Where the Government has appropriated private property for public use, there is an implied contract to pay for it, and a suit may be maintained in this court. *(Johnson’s Case,*2 0. Cls. R., 391; 4 ibid., 248; 8 ibid., 243; *Wiggins’s Case,*3 ibid., 423; *Waters’s Case,*4 ibid., 389; *Provine’s Case,*5 ibid., 458; *Russell’s Case,*7 ibid., 227,‘231, affirming 5 ibid., 121; *Great Falls Manufacturing Co.’s Case,*16 ibid., 197.)

*Mr. John S. Blair*(with whom was *Mr. Thomas Simons,*Assistant Attorney-General) for the defendants:

Claimant cannot recover — 1st. Because we are in possession under a claim of right, and did not enter under any lease. *[Langford*v. *United States,*101U. S. R., 341.) 2d. Because the lease offered in evidence was made without any authority from the United States. 3d. Because by the terms of the cession the right of possession is in the United States. 4th. Because the legal title purports to be in Louis Sloss and not in claimants, and if claimants rely on the lease by Sussman to sustain the action independent of any right or title in him, suit should have been in his name alone.

The reappearance in Schedule C, returned by the commissioners of transfer, of eighteen properties mentioned in Schedule D gives rise to a very serious doubt whether warehouse No. 1, mentioned therein, resting mostly on the wharf and partly on land, is not one of the several valuable warehouses which accompanied the transfer of *uthe wharf ”*by the Russian commissioner, especially since no warehouses are mentioned in Schedule A. Enough appears, however, to satisfy the court that the company had only a possessory right for the purposes of its ere*510ation, and tliat the *possessions*of the company were included in the cession by Kussia.

In the absence of a full copy of the charter, it is impossible to tell whether a right to remove edifices on the termination of the occupancy had been conferred on the company, or whether the improvements followed the land.

2. We have the right to occupy the soil: the Bussian Company has not, and the company must look to its own Government for recompense as well for the destruction of its corporeal as of its incorporeal rights. The cases cited by the counsel for claimants as to the confiscation of private rights resulting from cessions of private property have no application to the present case, for the following reasons: First. The cession was of a territory occupied by uncivilized natives, a company incorporated by the ceding Government, and the employés of that company. Second. The rights of such of the employés as had become fixed were sacredly *regarded;*the corporation, depending for its existence upon the will of the ceding power, had no rights in the soil, but merely a right of occupancy. Third. The United States Government added $200,000 to the consideration in order that the ceding Government might compensate for the annihilation of all rights of the company to any of its reservations, privileges, franchises, grants, and possessions. The confiscation, therefore, was by the Bussian Government. How far its laws provide for .such acts and what remedies are afforded to the owners it is not for us to inquire.

3. Claimants’ counsel argues that the peculiar distribution of the property by the two commissioners among the different schedules has fixed and determined the title. It is evident from the instructions issued to the commissioners that Mr. de Stoeckl and Mr. Seward contemplated only three kinds of property, to wit, the property to be transferred to the United States, the private property for which certificates were to be given, and the large stores of furs, provisions, and other goods belonging to the Bussian Company. But when these commissioners reach Sitka they are joined by Prince Maksoutoff, consul of Bussia, and administrator of the company, who, unable to persuade the commissioners to give him certificates, does induce them to place the edifices of the company in a list not provided for nor contemplated by the treaty, and to leave the company in possession; in other words, they “ left the matter as they *511found it,” subject to the fourth article of the treaty, which reads:

The. cession with the right of immediate possession is nevertheless to he deemed complete and absolute on the exchange of ratifications, without-waiting for such formal delivery.

4. That there has been no formal delivery of this particular warehouse, therefore, in no way militates against our right of possession. (See Ex. Doc. 177, H. R., 2d sess. 40th Cong.; Ex. Doc. 125, H. E., 2d sess. 40th Cong.)

The United States being in possession of part of the building, Maksoutoif, on the 28th October, 1868, makes a deed to Louis Sloss for the parcel of land on which is erected building No. 1, with a warranty only against the company. December 15, 1868, Samuel Sussman, one of the claimants, executes a lease to Hiram Ketchum, jr., each party binding himself individually and affixing his seal, Sussman, however, signing as-agent for Sloss, while Ketchum signs 'with no statement of agency. It also appears that Sloss has never been in Alaska, never authorized this purchase, and never authorized this lease except so far as that authority was conferred by a power of attorney to Samuel Sussman, signed by Louis G-erstle. The power of attorney from Sloss to G-erstle is not in evidence, and has not been proved to be either lost or destroyed.

OPINION.

Drake, Ch. J.,

delivered the opinion of the court:

The petition sets up two claims. The first is for $27,700, for the rent from December 15,1868, to the date of the filing of the petition, July 8,1880, at $200 per month, of part of a building in Sitka, claimed to have been leased by the claimants to. Hiram Ketchum, jr., collector of customs at Sitka, by the written lease set forth in the findings of facts.

Of course, the first question to be considered is whether Ketchum had lawful authority to bind the United States by that lease.

By section 21 of the Act of March 2, 1799, *“to regulate the collection of duties on imports and tonnage*” (1 Stat. L., 642, ch. 22), a collector of customs was authorized, “with the approbation of the principal officer of the Treasury Department, to provide, at the public expense, storehouses for the safe-keeping of goods, *512and sucb scales, weights, and measures as may be necessary”; and this law was in force when this lease was executed.

It is found as a fact that Ketchum had no authority from the Secretary of the Treasury to rent any storehouse in Sitka. Not only so, but it is also found that the Secretary, on receiving from Ketchum a copy of the lease, promptly disapproved it, and claimed that the leased property belonged to the United States under the provisions of the treaty of cession of Alaska.

No more need be said to show that the pretended lease had, and could have, no legal validity as against the United States.

The second claim is for $38,880 for the use and occupation of the remainder of the building in question, begun by General Davis’s talcing possession of part of it in June, and the remainder in September, 1869, which possession was continued by the United States till the institution of this suit. This claim appears to us to have no better foundation than the other.

In *Langford*v. *The United States*(101 U. S. R., 341) the Supreme Court enunciated doctrines which seem to us directly applicable to this case. From their opinion we present the following passages:

> The findings of the court leave no doubt that tbe Indian agents acting for tbe United States, and -without the consent of tbe American Board of Commissioners for Foreign Missions, took possession of tbe buildings which that board bad erected upon tbe lands, and have since retained them by force, and against its will or that of Langford, who claims title under it. Tbe United States always asserted that their possession was by virtue of their own title, which was hostile to that of the claimant. The military of the United States was at one time ordered to protect by force the occupation of the agents.

> Conceding that the title, or even the right of possession of the premises, was in the claimant, it would seem that the facts above stated show that the act of tbe United States in taking and holding that possession was an unequivocal tort, if the Government can be capable of committing one, and that if the case were between individuals every implication of a contract would be repelled.

> We are not prepared to deny that when tbe Government of tbe United States, by such formal proceedings as are necessary to bind it, takes for public use, as for an arsenal, custom-house, or fort, land to which it asserts no claim of title, but admits the ownership to be private or individual, there arises an implied obligation to pay the owner its just value.

> It is to be regretted that Congress has made no provision by any general law for ascertaining and jjaying this just compensation. And we are not called on to decide that when the Government, acting by tbe forms which *513are sufficient to 'bind it, recognizes the fact that it *is*taking *private property*for public use, the compensation may not he recovered in the Court of Claims. On this point we decide nothing.

> What is pertinent to the present case is that, conceding that principle, it does not confer on that court the authority to decide that the United States, in asserting the right to use its own property, is using that of an *individual,*and in taking possession of such property under claim of title, and retaining it ky force against an opposing claimant, has come under an implied contract to pay him for the use of the property. In the first case, the Government admits the title of the individual and his right to compensation. The right to compensation follows from the two propositions, that it was private property and was taken for public use, neither of which is disputed.

> It is a very different matter where the Government claims that it is dealing with its own, and recognizes no title superior to its own. In such case the Government, or the officers who seize such property, are guilty of a tort, if it he in fact private property. No implied contract to pay can arise any more than in the case of such a-transaction between individuals. It is conceded that no contract for use and occupation would, in that case, be implied.

The views thus expressed by the court of last resort seem to us to leave no ground for the second claim to -rest upon; for there is no doubt that the Government took possession of the building in question claiming title to it under the treaty of cession. The claimants insist that, in fact, it was their property; thus setting up an adverse and better title as against that of the United 'States. This raises an issue which, under the ruling of the Supreme Court, cannot be tried by this court-, for want of jurisdiction. ‘ ■

But there seems to us to be. another provision of law denying that jurisdiction to us.

Assuming the deed executed by Prince Maskoutoff, and set forth in the findings, to have been authorized by the Russian-American Company, the question whether it passed any title, and, if any, what, would depend on the terms of the treaty of cession, and what was done thereunder. If by the treaty the building in question was to be regarded as public property., it passed to the United States ;s if private property, it did not so pass. And if it belonged to that company before the cession, the question then would be whether by the stipulations of the treaty, the title to it was to remain in the company after the cession, or was to be vested in the United States. The title which is' asserted under that deed would therefore depend on those stipulations, as would likewise the claim *514based on that title. It is quite certain that this court has no power to render a judgment against the United States on any claim depending on a treaty, for it is expressly denied in section 1066 of the Revised Statutes, declaring that the jurisdiction of this court “shall not extend to any claim against the Government * * * dependent on any treaty stipulations entered into with foreign nations.’7

But even if we had jurisdiction, the claimants do not show title in themselves; for whatever right the Russian-American Company may have had after the cession was conveyed to Louis Sloss by the deed given in evidence by the claimants and set forth in the findings, if that deed was the authorized act of that company. Thus the claimants, by their own evidence, prove that if there is a right of action in any one on account of the seizure, occupation, and use of the building, it is not in them, but in Sloss, who is not a party to this suit.

The claimants requested the court to find a number of facts in relation to the powers, rights, privileges, property, and acts of the Russian-American Company, and the acts and proceedings of the commissioners appointed by Russia and the United States to give and receive the possession of Alaska; all of which we have omitted to find, because they relate only to the question of title to the building in dispute, which cannot be tried here.

The judgment of the court is that the claimants’ petition be dismissed for want of jurisdiction.