Barkley v. United States

3 Wash. Terr. 522 | Wash. Terr. | 1888

Mr. Justice Allyn

delivered the opinion of the court.

The question in this ease involves the status of sections 16 and 36, reserved for school purposes throughout Washington Territory, The United States, by its attorney, filed its complaint at Pomeroy, claiming: First, that “section 36, township 9 north, of range 44 east of the W. M., is and was public lands of the United States;” second, that on the 1st day of November, 1884, Hugh Barkley “without right or color of title, and without an asserted right thereto, by or under a claim made in good faith, went upon said tract of land and inclosed same,” etc., and so continues; prays removal of the inclosure, for an injunction, and other relief. To this the defendant (appellant) files a general demurrer, ■which was overruled, and decree given as prayed. Defendant appeals.

The admissions by the demurrer that this section is public lands of the United States, and the defendant without right or color of title went thereon, would seem to dispose of this case, but both parties apparently agree in submitting for determination the question whether the identification of sections 16 and 36 of the public lands by survey, and their reservation for school purposes by act of congress, so operated as a conveyance or grant of the interest of the government in said lands as to take them out of the domain of public lands of the United States, so that the government could have no right of control or supervision over them, as claimed and asserted herein. It is made unlawful to inclose any public lands of the United States without claim or color of title, in good faith, as by entry, etc. (Section 1, act of February 25, 1885, 23 Stats. 321.) It is contested that these lands were severed from the public domain by the act of 1853, and therefore section 1, just referred to, does not apply to these. The mere survey of these lands would not cause them to lose their character of public lands; such change could occur only when they have lost their public character, by reason of a bona fide right of private entry or ownership under the laws of the United States. Now, because of the mere reservation or appropriation by the United States of these sections, for the purpose of being applied to the common schools of the future, do they lose their character of public lands ? It is true that they are not “public lands ” in that they are open to entry, etc., but that fact alone does not prevent them being in a certain sense public lands. The government has, for a wise purpose, set apart and reserved these lands from the general domain, and announced the purpose to which they will be devoted; it retains control and dominion over these until the happening of a certain event; it is somewhat as a trustee of an express trust. It also retains the right, up to a certain time, to annul the act by which such sections were severed, and might, within that limit, annul the former act, and throw these lands open as “public lands.” This reserved right in the government must give it control over these lands as absolute as that of any owner could be. As is well said, ever since the organization of the territory these school sections have been recognized as “public lands,” and the courts have sustained all the rights of the government, whenever their aid has been invoked, in preventing trespass upon them. Any other doctrine would lead to a practical annulment of the act of congress, and render nugatory the effort to provide for and establish a common school system. Any one entering upon these lands becomes a trespasser; he cannot have or acquire any rights. The power of the United States to prevent such wrong must be conceded, or the wrong would go unpunished.

The judgment of the court below was entirely right and is affirmed.

Jones, C. J., and Turner, J., concurred.