United States v. Fullard-Leo/Dissent Rutledge
Mr. Justice RUTLEDGE, with whom The CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice MURPHY concur, dissenting.

I agree with the dissenting judges in the Circuit Court of Appeals that the possession shown on behalf of respondents is not sufficient to establish the presumption of a lost grant, even if title can be acquired from the Government in that manner. According to my understanding, the possession, to have that effect, must be actual, open, notorious, adverse and continuous from the time when the grant is presumed to have taken place.  Here for long periods the possession was constructive at the most, not actual. By the same token it was not continuous.  I do not think this Court should expand the established basis for acquiring title to government lands so as to include acquisition by adverse possession, as in effect the Court's opinion does. Accordingly, I dissent. 

Notes

'Zenas Bent visited the island in April, 1862, and left five men there. * * * In June annexation was formally proclaimed. * * * It does not appear how long the five men remained on the island but in December of the same year Bent transferred all his interest to Wilkinson. * * * Wilkinson died in 1866 and his will was probated in New Zealand giving his rights in Palmyra to his wife, Kalama * * *. Nothing further occurred until 1885 when the supposed title was transferred to the Pacific Navigation Company, a conveyance being executed by two of Kalama's heirs and Bent's deed being acknowledged, 23 years after its execution * * *. Thus, except for the five men left on the island by Bent in order to make the annexation effective, there is no indication that there was any possession or even visits to the island for the 23 years following annexation. On the contrary, the fact that Bent's deed was not acknowledged until 1885, after conveyance by Kalama's heirs, clearly indicates that, in the meantime, no claim of title or possession was asserted by anyone.

'Employees of the Pacific Navigation Company occupied the island for approximately a yea in 1885 a nd 1886 * * * and the company paid taxes in 1885, 1886, and 1887 * * *, not to the United States but to the Territory. (The claimant placed the lands on the tax rolls and in many cases taxes were paid on public lands * * *.) This company's project apparently failed and there followed another long period when the island was vacant. Some time between 1889 and 1897 a British vessel visited the island and finding it uninhabited, claimed it for that country * * *. In 1912 at the instigation of Henry Cooper who had just acquired the supposed title and whose Land Court proceeding to register it was pending, a vessel of the United States Navy visited the island in order to confirm this country's claim to it * * *. No occupants were found on the island * * *. In 1913 and 1914 Cooper made short visits of two or three weeks to the island and built a house thereon * * *. However, the island was not permanently occupied and in 1914 evidence was found that since the 1913 visit Japanese bird poachers had been there * * *.

'In 1920 another attempt was made to commercially develop the island. It was leased by Cooper; a corporation, The Island of Palmyra Copra Company, was organized; and a 'settlement group' was sent to the island * * *. This project was not successful and its activities terminated after about a year * * *. The Fullard-Leos bought Cooper's rights in 1922 but only visited the island twice, once in 1924 for twelve days and again in 1935 for one day * * *. Between 1922 and the time this suit was commenced, no one lived on the island. It was most frequently visited by United States Navy or Coast Guard vessels which were in the neighborhood * * *. In fact, Fullard-Leo went on the Coast Guard vessel 'Itasca' when he visited the island in 1935 * * *. Occasionally, vacationists or scientists made short visits to the island * * *. During this period an unnamed man lived there for two or three months * * *. On another other occasion (1936) a party from Tahiti went there in an attempt to find a cargo of button shells which were rumored to have been jettisoned by an unseaworthy boat * * *. By 1938, the house which Cooper built in 1913 had collapsed and all the various visitors testified they did not see any evidence of occupation in recent times * * *.'

From these facts the dissenting judges concluded: 'In the 77 years from the royal proclamation of taking in 1862 to the filing of the instant case in 1939, the occupancy of the island has been less than two and one-half years. Of this a year was in the years 1885-86 and a year in 1920. In the interim, from 1862 to 1939, there was no one residing there under a claim of possession-the occasional visitors' brief stays being for other purposes.' 9 Cir., 156 F.2d 756, 765; and see Id., note 3.