McCloskey

The appeal in this case is taken from an order of the court below granting a temporary injunction upon a bill in equity, the answer thereto, and the testimony and proofs of the respective parties. The bill was brought to enjoin the appellant from erecting a structure on tide lands in front of property of the appellee, fronting on Gastineaux Channel, an arm of the North Pacific Ocean in Alaska, the appellee alleging that, as a littoral owner of lands abutting the shore of the sea, it was entitled to free access to and from the navigable waters fronting thereon. The appellant in his answer denied that the appellee is a littoral owner on the seashore, and alleged facts to show that by the dedication and grant of a sidewalk and street in front of its land the appellee had parted with all littoral rights. The court below held that the appellee possessed the littoral right of access to the water in front of its land, and on that ground awarded the injunction.

The common law has, by act of Congress, been declared to be in force in the territory of Alaska. By the common law of England, the King was the owner of the bed' of the ocean and of everything below the line of ordinary high tide,…

(concurring).

I concur in the judgment on the ground that the case made before the court below, from whose order granting a preliminary injunction this appeal comes, shows that the appellee’s grantor took possession of the tide lands in controversy in the year 1881, since which time the appellee and his grantors have held the continuous and exclusive possession until the driving of the piles by the appellant complained of. That possession existing, the court below was right in protecting it by its preliminary injunction. Heckman v. Sutter, 119 F. 83 , 55 C.C.A. 635 ; Id., 128 F. 393 , 63 C.C.A. 135 . The present being an appeal from an order granting a preliminary injunction only, I do not think the merits of the case should be decided in advance of a trial upon the merits in the court below.