United States of America, and Bertha Mae Tabbytite, Plaintiff-Intervenor v. Glen M. Clarke

The United States, joined by Bertha Mae Tabbytite as an intervenor, brought suit to enjoin the defendant class from trespassing on land patented to Tabby-tite, an Indian, under 25 U.S.C. §§ 331-32 as an Indian trust allotment, and to recover compensatory and punitive damages for trespass upon that land from 1958 through 1969. The district court denied an injunction, finding that the defendants had an easement implied by necessity across Tabbytite’s land, but awarded plaintiffs $3,500 in compensatory damages — $2,000 for past trespasses and $1,500 for prospective trespasses. The United States appeals and we reverse.

Tabbytite’s 160 acres of land are located in the Chugach Mountains southeast of Anchorage, Alaska. In November, 1956, she filed a homestead application for the land with the Department of the Interior. A year and a half later, in June, 1958, Glen Clarke, the principal named defendant, applied for a homestead on an adjoining 80-acre parcel. To secure access to a public highway, Clarke constructed a road across Tabbytite’s land in the late summer of 1958. The district court held that his doing so and using the road was a continuing trespass, for which it awarded…