Opinion of the Court.

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; Taylor on Land. & 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. Hewett, 8 Q. B. 913; Crippen v. Morrison, 13 Michigan, 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

Opinion of the Court.

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 two hundred thousand dollars was added to the consideration money to cover the cession of such properties. More explicit words than those used in article six 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 unencumbered 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 employés 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 two hundred thousand dollars 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 RussianAmerican 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

Opinion of the Court.

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 General 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 reserved 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 cor

Opinion of the Court.

porations or individuals. In his report of his proceedings General Rousseau stated that the town was built mainly by the Russian-American Company, and, "except the dwellings transferred by them to their employés 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 employés, it had no authority to invest such title in itself;" that "all the buildings in anywise 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 land owner 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 or 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

Opinion of the Court.

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. 193, 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 General Rousseau.

It is further contended that the Court of Claims was es