Arness
Arness v. Petersburg Packing Co.
Opinion
Dissenting Opinion
Morrow, J.
(dissenting).
This is a statutory action in ejectment brought under the provisions of sections 301 and 303 of the Alaska Code of Civil Procedure (Act of June 6, 1900, c. 786, 31 Stat. 383 ; Carter’s Ann.Code Civ.Proc.Alaska, pp. 210, 211), providing:
“Sec. 301. Any person who has a legal estate in real property, and a present right to the possession thereof, may recover such possession, with damages for withholding the same, by an action. Such action shall be commenced against the person in the actual possession of the property at the time, or, if the property be not in the actual possession of any one, then against the person acting as the owner thereof.”
“Sec. 303. The plaintiff in his complaint shall set forth the nature of his estate in the property, whether it be in fee, for life, or for a term of years, and for whose life, or the duration of such term, and that he is entitled to the possession thereof, and that the defendant wrongfully withholds the same from him to his damage in such sum as may be therein claimed. The property shall be described with such certainty as to enable the possession thereof to be delivered if a recovery be'had.”
*821 These two sections…
Lead Opinion
Gilbert, J.
In an action of ejectment in the court below, the defendants in error recovered a judgment for the possession of a small parcel of tideland adjacent to a steamship dock and a cannery which they occupied and operated; they having alleged in their complaint that they had used and occupied the parcel in controversy, had cleared it of boulders and débris, and made it fit for the purpose of storing logs, pilings, pile drivers, and water craft thereon, and had maintained cradles thereon to repair their boats and scows, and that at midnight December 7, 1915, without their consent, the plaintiffs in error entered upon said premises and removed therefrom the said cradles, pilings, logs, etc., and have since occupied and remained on the premises. The assignments of error present two principal questions: First, whether ejectment is the proper remedy of the defendants in error; and, second, whether ejectment will .lie to recover tideland in the territory of Alaska.
The action was brought, not as contended by the defendants in error, to recover an incorporeal hereditament, but to recover the actual physical possession of a parcel of tideland, and the court below aptly and appropriately…