*1 v. CHAPMAN, Secretary et al. al. SANTA PAC. R. CO. et FE
No. 10303. Appeals Court of
United States Circuit. District Columbia
Argued April 27, 1950.
Decided Nov. 1951. Opinion
Dissenting March 1952.
Writ of 1952. Certiorari Denied June See S.Ct. Judge,
Stephens, Chief dissented.
499 1866, 27, Congress, by July the Act of public granted through the way building domain for the of a railroad To aid Missouri to the Pacific Coast. construction, Atlantic and Pacific pub- granted the odd-numbered sections lic either of its lands for 40 miles side line; projected as area is described this “place” granted also limits. The Act additional 10 to select within an limits, “indemnity” limit mile known as the up any sufficient lands to make “place” from home- arising entries, preemptions, stead mineral etc. 12, 1872, March Atlantic
On and Pacific filed with the of In location, map terior a and there of definite after the railroad was As of constructed. stipulated map, filing date of as parties, rights both the lands Depart- Wilma Martin, Attorney, C. granted became fixed and determined. Justice, C., ment of Washington, D. with Ry. Co., United States v. Northern Pacific Atty. whom Asst. A. Devitt Vanech Gen. 1921, 439, 41 65 L.Ed. P, Roger Marquis, Attorney, Depart- Justice, ment Washington, C, D. briefs, appellants. on the 3, 1886, February On the Atlantic and 1,000,000 Pacific sell contracted to acres Bernays Wiener, Washington, Frederick per acre to the Aztec Land and Cattle 5O5! C.,D. whom with Lawrence Cake and’ Al- Company, (hereafter Limited referred West, Washington, C., vin Olaf were on D. 1,000,000 Aztec). comprised acres This brief, appellees. all the odd-numbered sections within cer- STEPHENS, Before Judge, Chief and tain described boundaries. Part of the land CLARK MILLER, and WILBUR K. Cir- limits, being “place” sold was within the Judges. cuit 98,690.83 least acres were within “indemnity” grant. limits of the The CLARK, Judge. Circuit $500,000 stated consideration of paid appellee, The Santa Railroad Pacific by Aztec to Atlantic and Pacific. Company (hereafter referred to as Santa In 1886 and 1894 the Atlantic Pacific Fe), corporation is a by Act of created conveyed much land as was then sur- Stat. 622. March c. de- veyed August 17, to Aztec. On Chapman, Secretary fendants are Oscar L. 98,690.83 above mentioned together acres Clawson, and Marion Director with other lands were execu- Management. the Bureau of Land proclamation tive for a forest reserve de- Santa successor the Atlantic and scribed Reserve, as the pursu- Black Mesa (hereafter Company Railroad ant to Section of the Act of March Pacific). as the Atlantic ferred 1891, 561, 26 Stat. c. U.S.C.A. made grant was to the latter under §471. July c. Stat. fully vested with rights Fe is all the On November Fe, as suc- Pacific, Atlantic and Pacific under cessor to Atlantic and and in set- thereby the said Act and to tlement claim of Aztec for so much granted. of the said as had not at the time been patented it, pre- Aztec, Az- tofore or certified
conveyed a deed to executed patents Pacific vent the issuance Atlantic and confirming tec which recited that 576,701.- title to previously conveyed such lands in the above Interior have been sold shall acres of the lands described find heretofore *3 pur- by any 1886. It further such carrier to an dated innocent February contract stipulated entitled to an chaser value preventing Aztec or as is- was the for remised, 423,298.09 acres, patents suance and to lands listed selected additional right, carrier, all quitclaimed by listing such which or selection leased and Fe, fully as suc- ap- has heretofore been finally title and interest of Santa and Pacific, proved Secretary cessor to the Atlantic Interior to and. 423,270.35 acres described the approximately pat- extent that issuance deed, included before- ents [Empha- said which be authorized law.” 98,690.83 supplied.] acres. sis mentioned 11, 1921, 18, 1940, v. April United States On pursuant On December to the Co., supra, provisions de- Ry. 321(b) Pacific of Section Northern of the Trans- Court, pages portation Act, and of the regulations of the cided S.Ct., U.S., page Secretary thereunder, 442 of Interior Santa 66-67 “ “ * * * * * * Van Devanter stated: filed a release all any Mr. Justice right to re- description after earned claims whatever therein, compensation it intended ceive what was interests reim- government bursement on was not admissible therefor account of lands or appropriate to its own uses granted, reserve or interests claimed have supply required to granted, grant- or -claimed -have-been should course, if it Of any Congress limits. ed by act of the to Santa Fe required for part Company prede- any could take Railroad or to thereby take all purpose, it could cessor in interest construc- aid of the indemnity. provision portion any tion of wholly defeat of its railroad.” The ‘substantial either. But cannot do it release, accepted approved This provision (Weyer- right’ by that conferred of Interior on March 380, 31 supra Hoyt, U.S. hauser v. [219 be thus 258]), cannot 55 L.Ed. 26, 1942, On -filed June (Sinking Fund extinguished. cut down prescribed by selections in the form 496]).” supra 25 L.Ed. Cases, U.S. [99 previously of Interior of August proclamation of executive sold to Aztec. Those selections de- withdraw effective to rejected nied the Commissioner of 98,690.83 acres included which ground Land on the General Office unimpaired Fe were rights of Santa and the “ * * * the land had not been ascer- time this decision including the up to and tained and identified so railroad was rendered. acquired specific any interest in land which Now, September Congress on it could convey filing of its approved the enacted and the President therefore, release and its transferee c. 54 Stat. Transportation Act of protected is not saving under- the clause III, II, 321(b) Title Part 898. Section 321(b) Section Act.” Act, 54 Stat. U.S.C.A. § May 1, 1943, On appealed the Santa Fe rate for those land provided certain benefits the Secretary of Interior from the deci- released within which railroads sion of Commissioner of the General to lands period claims specified rejecting Land Office the said selections against the United States. might have ruling and after an adverse moved for a stipulated: “Nothing further Section This rehearing was denied. requir- construed as shall be this section reconvey On March carrier Santa Fe any such filed its ing complaint present suit, been here- seeking lands which have States United 1,000,000 Secretary from select of land. injunction acres Before restraining the ap- sale could selected for Santa Fe have rejecting the selection of lands and plication patent, praying surveyed, for the itself after but the land had 'been direct- inwrit the nature of mandamus after the Fe was bound to exer- sale Santa proceed ing Any to determine cise him its choice for Aztec. failure on patented Fe to part have Santa Fe’s would rendered question, Both the release. light notwithstanding damages. liable in In the of these summary plaintiff and defendant moved facts we Fe did have a feel Santa judgment and the lower court which it could and did sell. plaintiff’s motion denied that In the Northern Pacific United States v. appeal held defendant. On to this court we *4 Ry. case, supra, Mr. Van De- Co. Justice Int., Krug, Fe R. in Sec. of v. Santa Pac. said, effect, government vanter that the Co., App.D.C. F.2d deprive land railroads could not these to the defendant’s as “place” “indemnity” rights their correct, was court motion that the lower hut gov- is in effect what the lands. And that plaintiff’s should have do trying ernment is At first no here. summary judgment. for a In hold- motion surveys which made would have en- Secretary motion ing that of Interior’s Fe abled the to make selections. Santa summary properly judgment was de- 98,690.83 specific Then the acres and other we stated: nied “While it is true part lands were a forest rule, general necessary selection is to vest Consequently, reserve. no selection could specific any right have until been made after the decision Supreme long recog- grantee, the Court has case, Reserve United States v. Forest exception is de- nized where there Ry. Co., supra. Northern Pacific satisfy ficiency losses It should remembered the railroad be place.” must lands under the select di- Supreme was in effect what This Secretary rection Court held in United v. Northern States consistently that officer ruled no selec- has Ry. Co., supra. Pacific approved tion can be made or until the appellants The first that the contend surveyed. gov- lands in are The given by excepted Santa Fe release is not advantage ernment take cannot of its own operation Transportation from wrong or least its own failure to act. Act since Santa Fe had no “title” to right We hold that of selection vested could to Aztec which have been sold deficiency at the earliest time was a by patent. and confirmed It obvious satisfy lands to the railroad did have which it a title place. government, The additional sur- excepted could sell that the lands sold are veys defeat right could not the Santa Fe’s release. The from the Santa Fe does The District selection. Court found as legal that it had the lands contend title deficiency a fact that a did in fact continue in it What then was the Santa Fe’s sold. consequently up to 1940 and no selection consist Court has terest? vest necessary to title in the Santa Fe. right “place” ently treated the to select adequately supported This finding interest, further, and, a vested it lands as evidence and this conclusion we con- right also treated the to choose “in has cur. “place” demnity” lands in lands as lieu just vested in such vested interest. These If there was a in the indemnity terests arise contract between lands to satisfy place, losses in and we so parties. hold, United States v. Northern then no selection was necessary by Ry. Co., supra. inter right This vested Santa to vest this railroad. the. est, analysis, in the last consisted This nothing was our decision when this case was right more than to choose select before this time, last Krug v. Being assured by lands. Co., Santa Fe Pacific Railroad supra, and predecessor Fe’s sold its to we affirm our conclusion there. agency that administrative be re- appellants contend should not next injunction for versed means of or manda- there was no consideration valuable merely mus have quitclaim Aztec as Santa because the court Santa Fe’s deed to only They reached another conclusion. can obligation Fe was under no select pre overturned when the administrative ac- Aztec; this, alleged, land for wrong. tion is But pur plainly unreasonable or being vented Aztec from an innocent we do 'hold that the action meaning of the chaser for value within the indicated, wrong. plainly unreasonable and Transportation As Act. we appellants again state the law cor- these duty was under a to select rectly argue when that mandamus will merit in this Any lands for Aztec. other against lie offi- executive or administrative destroyed fact we must contention is duty cers particular- when agree with that Aztec their the District Court plainly prescribed situation is so to be- purchaser. value” was an “innocent equivalent positive free from doubt and to a within meaning used, Rives, Act, command. v. U. ex supra. term, Work S. as therein That rel. 69 L.Ed. ordinary must be in its commercial defined only duty 561. The contrary be shown. sense unless definition *5 perform must purely ministerial. He- purchaser has The term innocent for value patents. Consequently, need issue long interpreted by courts as one been our we not do hesitate to mandamus purchases value. and. good who faith and for injunctive relief. appellants even will contest Not value; dollars is fact that half a million Affirmed. has been paid. that sum There has Fe showing Aztec or Santa no that either Chief Judge STEPHENS dissents from predi appellants The acted in bad faith. opinion this and wil-1file his dissent later. not an in cate claim that Aztec was their purchaser for on the fact nocent value Opinion Dissenting by Judge Chief Har- obligation legal no of Santa there was Stephens Opinion old of Court M. fails, argument to select. When 15, Herein November 1951 Filed here, their contention that it does so must 4, Filed March consideration. there was no valuable STEPHENS, Judge (dissenting).. Chief appellants Finally, contend agree disposition am with the I unable involved conclusion that the administrative obliged the court. case I of this feel discretion, since it was the exercise my length. forth views at some to set impregnable to man plainly wrong is appeal judgment appellants have not contended This an from final The damus. 14, January decision is United' Secretary of Interior’s entered that the From what Court for District subject judicial review. States District of' judgment enjoined conclude The already stated we must Columbia. the- we have wrong. Interior,, de plainly appellants, His of the Secretary was seeking its own effect was the Assistant partment of the deprive act to failure to wrongful action or Director Bureau of Land right to select. Management Department of its vested railroad the In- terior, between contract rejecting, from the from specified That arose on certain selection, when the application railroad grounds, and the an government for the n patent its line. We of and the of a issuance undertook build some railroad ninety-eight cited law as thousand (98,- acres of the rule agree with Simp acres) 690.83 ap- ex rel. located Arizona.1 appellants in United States The plication Wilbur, 1931, 414, appellee- had been filed son v. 502, 1148. Determinations Railroad L.Ed. Company in. ing application specifically judgment, more describ 1. The selection of reject- appellants patent enjoined ed, the issuance to the lands. through & States appellee Land territories of the United the interest of per mile di- ten sections of land Company, judgment alternate Ltd. Cattle through proceed deter- on each side the railroad line appellants to to a rected the question any application provided state. Act also mination by any found of the lands so without reference to a release executed railroad the time appellee Pacific Railroad of definite location Santa Fe sold, re- previously Company 321(b) granted, the to have been Section under 1940, settlers, 18, served, occupied by Transportation September homestead ofAct of, 954-5, pre-empted disposed or otherwise Stat. 49 U.S.C.A. § Hereafter, appellants convenience, grantee should railroad select other lands in odd-numbered sec- will be referred to as the Gov- sometimes parts ernment, appellees tions, and the in lieu of the sections or Santa Fe lost, respectively. miles be- Aztec, sections not more than ten yond designated the first limits of I grant. designated The first limits appeal The case out of which the arises grant under such became known statutes background July has its in the Act of limits, “primary” “place” as the 14 Stat. June “place” lands therein as lands. Title and in c. 43 Stat. beyond further limits of ten miles Section 321 of the Act of place became known the “in- September 18, to above. referred demnity” limits, sec- odd-numbered questions An understanding of tions within as “in- those extended limits appeal requires acquaint- volved in the demnity” lands, or “lieu” rulings ance also with certain of the Su- *6 selections made within those extended preme concerning meaning Court the and limits, limits, in lieu of the proper application by of statutes enacted “indemnity” as selections. The Act fur- Congress in aid of transcontinental railroad provided ther that Atlantic and Pacific development construction needed for the road, post should military be a route and period the West in the following'the Civil subject the use of the United States for July 27, Act War. The was one postal, military, naval and all other Gov- Act, of such statutes. That “An entitled service, subject ernment and also to such granting Act Lands to aid in the Construc- regulations Congress impose as might of a Telegraph' tion Railroad and Line charges the stricting for such use. from the States of Missouri and Arkansas rulings The Court— Coast”, incorporated to the Pacific concerning meaning proper ap- Company, Atlantic and Pacific Railroad plication foregoing statutes hereafter sometimes referred to as Atlantic which, —were made certain decisions Pacific, company granted to that appreciation pertinence for full their way, right including necessary ground case, the instant must be stated at some buildings, workshops, depots, for station Payne length: In Ry. v. Central Pac. shops, switches, sidetracks, machine turn- Co., 1921, 255 U.S. 41 S.Ct. stations, granted tables water July L.Ed. c. every company odd-numbered alternate granted Stat. lands for public land, railroad section of not mineral and not reserved, sold, construction. ap- A selection of or otherwise lands had been pre-emption made, free from propriated and but before formal approval by Secretary thereof rights, claims or to the amount of other of the per he withdrew for twenty waterpower alternate sections mile each on site the lands definitely railroad line selected. The located suit side was to upon ground Company, Ltd., & Cattle that Santa Land ground Company not, company Railroad filing purchaser prior to the of the release an innocent referred value of the text, acquired interest lands. convey which it could enjoin Secretary desirability adding and the Commissioner to the into them canceling April survey General Land forest reserves. On Office by having completed, plat selection. The Court held that thereof virtue rights of Immediately of the selection the the was filed. thereafter —on that railway day that the company had attached and same company railroad filed its —the by Secretary illegal withdrawal selection. The lands were neces selected required and that sary up place should be fill There land losses. dispose merits, selection on its un- (at opinion after a date not described in the by brief, affected patents the withdrawal. Court) inadvertently decision proposition stands for the that a to the company by issued railroad Sec by withdrawal of indem- retary notwithstanding of the Interior his nity they been selected previous temporary withdrawal after theory railroad company void. The lands. In 1906 the made the filing on was that a selec- temporary permanent. withdrawal compliance tion in full faith and with the action the case the Government requisites particular patent for a ato tract patents to cancel the inadvertently is equitable the railroad becomes the owner It sued. was contended the Govern thereof, subsequent reason right that no ment to lands within the in withdrawal of the legally lands selected is attached, demnity limits generally either ineffective. “Rightly said: specifically, until were selected speaking, the selection likened is not up to railroad and that step initial of one who wishes to time of selection the Government was free public obtain the title future to reserve the purposes lands for its own compliance law, with but rather thereby cut off the step concluding of one who full com- where the even losses in pliance has earned the to receive the exceeded the available indem title.” limits, nity although the railroad com pany’s to claim purpose Payne background case served as indemnity limits was asserted at earliest for the decision in United States v. North opportunity. company urged, The railroad Ry. Co., 1921, ern Pac. 41 S. *7 contrary, (through pre that where 825, commonly Ct. 65 L.Ed. referred to emption, homestead dis entries other reports in the as the “Forest Reserve case.” indemnity -the posals) lands in the limits In case that a withdrawal the had so been far that re that all diminished indemnity of the Interior of lands was them supply of were the mained needed to made held selection was void. before place losses in the limits the Government Company, The Northern Pacific Railroad liberty remaining was not at to reserve the predecessor the the Northern interest of indemnity lands, any them, for its Railway incorporat Company, Pacific was thereby own uses and to cut off the railroad July lands the Act of ed and company’s right theory to them. The claim Act, 217, 13 Under that c. Stat. 365. company of the was the against supplemented a as modified and Joint Government, indemnity remaining the lands May Stat. Resolution of appropriated were to the fulfillment of the company on several occasions the railroad obligation grant Government’s under the attempted to select to 1904 company right the and that a vested grant indemnity the -the limits of within obligation. the fulfillment of that The Su place purpose satisfying land losses. the preme Court sustained the contention of the time the lands reason that at that the For company. The Court ruled the un'surveyed Secretary of tha-t land the the were still grant proposal was in statute effect a the selections. consider Interior refused company that if it the temporary a undertake Secretary made would the In 1904 of the re unsurveyed, construction railroad it lands, still would the withdrawal comprehended return the ceive in preventing acquisition an purpose of upon acceptance grant, that pending inquiry that them claim to it found company the Court by the railroad railroad construction proposal and further the case necessary to remand by the President acceptance thereof determining purpose proceedings for the a contract converted into proposal deficiency in the asserted question by the Govern performance indemnity 'to within the as a entitled became company ment brief, the deci- satisfy place losses. part. The land performed its having result Reserve Forest sion of the Court Payne view, citing the Court proposition where for the case stands indem relating to provision case, up fill are insufficient grant part a as much nity lands was of the same withdrawal relating land one as the and contract prior to selection the Government Congress lands; purpose of it was ineffective. legally confer a substantial grant to making indemnity limits within right to lands Forest the remand As a result of lost, right that such place lands lieu of decided ultimately case there was Reserve process protection due was within case, United a third Court Specifically the clause of Constitution. Co., 1940, Ry. Pacific States v. Northern held, therefore, after the rail 85 L.Ed. 61 S.Ct. re had earned the road pertinent part rulings in which are comprehended grant ceive the lands appeal. arose as to the instant That case the Government was not free reserve Upon the decision of the Forest follows: appropriate to its own use the lands apparent to the Reserve case it became required the indemnity limits which were that if claim Government replace place land losses. The Court railroad, including right to withdrawn said: the event in unwith- lands in losses, satisfy place drawn lands to “While often has been that under such said any specific no attaches to sustained, much land with- were selected, within limits until it purposes drawn for forest reserve would of the cases will show that examination general applied this tween rule never as be where has from the same. A diverted Com- Joint grantee Government and the Congress appointed mittee of investigate 'the lands available for were not conflicting claims of the purpose. application sufficient Its rights of has been where either settlers the railroad to withdrawn indemnity involved, or the lands for in available leg- the enactment of recommended demnity thereby making losses, exceeded the authorizing Attorney islation a suit it tification of essential there be iden particular sought to be procure General to a final determination of taken. This distinction is illustrated in St. respective rights of the Government and & R. Paul R. Co. v. Northern Pacific Co., railroad, R. R. 35 L.Ed. [11 U.S. 1 to the end that 77.] presented whether finally adjusted should be inter- *8 any there was need for a selection where no of ests both the Government and the rail- of a settler involved the lands n available for indemnity were not sufficient fully protected. road This in the resulted supply By the losses. reason of this insuffi 41, Act of 46 Stat. June ciency demnity it was ruled that lands in in the the necessarily appropriated seq. C.A. 921 et That Act declared for- were limits § satisfy to was losses The the and that no selection feited to the United certain States claimed required. [139 U.S. at court said by rights the asserted railroad to page page 19, 395]: 11 at evidence was ‘As to S.Ct. the n objection produced that no of within any lands the boundaries of national any selection of the Interior any other Government forest reservation up from the for the lands to make that the place and directed railroad should deficiencies found in the lands within the limits, it is sufficient to observe that all the from compen- ceive the Government such only up limits within made sation, any, if as the courts should hold due part was, for these deficiencies. There therefore, no occasion for the exercise of the for the loss of forfeited. The judgment selecting Attorney Act directed General to in- ” they them, appropriated.’ for were all [256 questions an action to determine all stitute pages 65-66, page 442], 41 U.S. at at germane complete adju- law and fact Although the case was thus the of decided respective Supreme rights dication of the theory Court under the of advanced 506 company grant.2 making findings, of that under the these
Government and
computed
of
the district
July
Act of
the Resolution
court
as lands avail
1864 and
amended;
able for
sur
May
the Act estab-
non-mineral
as
others,
in, among
veyed vacant lands. The
lished venue
the United
railroad asserted
right.
Dis-
States
for the Eastern
the district
District Court
court was
Act,
Washington.
of
trict
But
Government
vacant
Pursuant
insisted that
unsurveyed
be
bill to
Attorney
caused
lands were ‘available’
indem
General
nity
railroad,
filed in
court mentioned. After
notwithstanding
a con
district
that, .
proceedings
a master
ren- cession
before
the court
be
must
selected
identified,
en-
holding
dered
railroad
the railroad could not select
patents
titled to
certain lands outside them until
surveyed.
had been
The
compensation
for cer-
urged
reserves
Government
that the
failed
railroad
Thereafter,
tain lands
Con- to
ample
within them.
show that
were
not
unsur
gress,
May
veyed
the Act of
Stat.
lands within the
indemnity limits
note,
authorized
offset
U.S.C.A.
losses in the
at
-time
§
appeal
direct
Er- of
Court.
withdrawals. The
add
Government
that,
assigned
might,
rors were
the district court’s ed
inasmuch
homesteaders
interim,
decree
and the
prior rights
both
Government
in the
have obtained
Also,
put
for-
unsurveyed
railroad.
actual settlement of the
sustained,
which,
certain claims
if
speculation
it
ward
was matter
whethl
any
precluded
by the
recovery
would have
er the
ultimately
ob
railroad would
separately
railroad.
discussed
adequate indemnity,
These were
tained
even if unsur
Court,
opinion
veyed
written
had
Government,
claims,
Two
Mr.
Roberts.
purposes.
forest reserve
Justice
per-
rulings
-that,
numbers 7 and
resulted .in
urged
further
district
appeal.
tinent to the instant
unsurveyed
treated
lands as
available
selection,
there would have been
"The claim that
Claim read as follows:
no
the dates of the
with
compensation
have been awarded
no
should
drawals.
public lands
avail-
unsurveyed
because
were
selection,
and the
able
Supreme Court
held that
con-
these
failed
would,
could, have se-
to show that
it
tentions
the Government
could
all
the withdrawn
lected
obtained
sustained. It
that the
said
decision turned
page
61 S.Ct. at
U.S.
lands."
inquiry
on the
[311
as what lands were avail-
had found
page
The district court
able to the railroad for
275]
selection at
1898, just prior
-to
on March
respective
time of
governmental
with-
withdrawal,
the railroad had
pointed
first forest
drawals.
out that
5,946,664 acres under
place,
first
unsatisfied
the railroad could not select
2, 1864
total
July
It
mineral
lands.
then
commented
selection, as
that by
available
Section 3
the Act
July
date,
1,137,508
de-
leaving
provided
whenever
acres-—
acres;
4,809,156
-that
de-
ficiency
granted,
been,
which shall have
under the
Reso-
ficiency
the time
definite
location
Joint
sold,
excluding
road, “granted,
reserved, occupied
May
available
lution of
*9
limits,
settlers,
indemnity
March
or pre-empted,
in
homestead
or
second
acres,
of,
593,656
disposed
otherwise
1,. 1898,
and that there
other lands
was
shall
deficiency
respect be
company
in
said
lieu
selected
in
there-
since
had been ever
18, page
May 31, 1870,
U.S.,.
3. See footnote
343 of 311
Resolution
2. The Joint
page
S.Ct.,
indemnity”
citing
276 of 61
belts ten
Federal and-
“second
authorized
Supreme
proposition
original
wide,
Court cases for this
of the
side
on either
miles
Hart,
any
territory
—including
indemnity
v.
Cox
or
in
state
U.S.
limits
67 L.Ed.
could not obtain
43 S.Ct.
332.
railroad
the
which
in
intended for it
sections
number of
the
by its charter.
to
of,
lands available for selection
the
direction
under the
sections,
satisfy
have
grant,
would
the
the railroad
the
in alternate
the
compelled
been
lands
.
to select
within
designated
odd numbers
.
[311
nevertheless,
orde-r
page
reserves,
in
page
U.S. at
S.Ct. at
276].
deficiency
indemnity
to
for
the
the
obtain
then said:
Court
created,
so
the
bound
railroad was
indemnity
in
“The
that
lands
the
fact
the
subject
prove
lands
survey,
that
it
have selected
are,
taken
would
be
limits
before
settlers,
by pre-emptors
ulti-
and thus
it
within
what lands
reservation, and
company
mate
bo
of the railroad
satisfaction
selected,
claim
would have
before it could
defeated,
justify
does
the Government
not
reserving
those
compensation
itself in
contained within
for the
lands
from the Government
impossible
rendering
the com-
limits and thus
deprivation
ma-
its
select.
definitely
pany’s obtaining
This was
them.
of the
jority
ruled
in
Case.
held
Forest Reserve
position
The Court
untenable.
argument
mean-
“Much
said
in
indemnity’
ing
phrase
of the
‘lands available as
said:
un-
clear that
as used in
case.
It seems
(cid:127)surveyed
ruling
the com-
are
available to
lands
not
in
Reserve
“Under the
the Forest
pany
obligation
Act
It will
ob-
it
under the
Case was
indemnity
company
any
must
that the
select
served
refrain
action which would de-
prive
company
of the
under the direction
its
selection
invariably
grant.
has
ruled
the Interior. That officer
that no
until the lands in
of the
accordance with
the
terms
When
approved
be made
can
or
for for-
selection
States withdrew the
United
surveyed.
signified
purpose
are
est and other reserves it
its
to
the
any
retain them
its own use
not to allow
very
ruling was
“This
necessitated
anyone
company
them,
else to obtain
requires
which
terms
lection
se-
of the
contrary
law
contract
notwith-
designated
odd
of alternate sections
standing.
company’s right
We think the
surveyed,
Obviously,
no odd-
numbers.
until
deficiency
selection, to the extent of the
Unsurveyed
exist.
could
sections
numbered
grant,
available as to
remained
provided
the withdi-awn
public
[Footnotes omit-
lands.”
are not
the lands selected were such
ted]
grant.
are
as
contention that
lands
defined in
The Government’s
concluded,
this sub-
The Court
then
on
say
no
can
how soon the
one
surveyed
have
selected
would
been
ject, as follows:
they
reserved,
if
had not been withdrawn and
Case, or,
unsurveyed
Forest Reserve
“The
if
had remained
and not
suggest any
supra,
allegation
withdrawn,
view.
not
of
found
different
what areas would
did
have
taken
indemnity
deficiency
pre-emptors,
up by
to
exercise its
does
avail
settlers
par-
stipulation
abrogate
qualify
company’s right
case,
of the
ties,
privilege
odd-num-
lands were those
of selection notwith-
was that the
standing
Moreover,
enti-
defendant was
ar-
withdrawals.
bered sections
regulations
gument
repeal
pre-emption
ignores
of the Land
under the
tled to select
Department.
only mean,
and the
This could
[311
Act of March
1891.”
U.S.
laws
only
gone
346-347,
pages
pages
view
277-278]
61 S.Ct. at
decision could
surveyed
meant,
lands within
omitted]
that the
[Footnotes
that
the
were deficient to meet
limits
was in the following
terms:
Claim
company.
rights
railroad
selection
authority,
Govern-
as the
The case
“The
is liable
the United States
claim
proposition
contends,
unsur-
for the
ment
the Railway Company
to account
only
veyed
limits
lands within
vacant
at the
ascertained
time
to the com-
as available
are to be considered
ascertaining
pany
the Government
whether
page
U.S. at
withdrawal.”
[311
which the
to itself
has reserved
company
page
respect
S.Ct. at
of this
285]
rights.
Under the doc-
Case
has
chal-
Forest Reserve
Court ruled:
trine
lenged
gov-
and other
forest
withdrawals
upon reargument
“In its brief
the Govern-
purposes
left
ernmental
available
position
ment takes the
satisfy
that even if the with-
company
deficient
lying
drawals left the
deficient in lands
rights
selection.
its
indemnity limits,
second
the United
holding was that the withdrawals were
“The
Railway
States is liable to account to the
Com-
company’s rights remained as if
void and
pany
The
drawal had the effect of
deficiency.
the amount of
made.
If
never been
the withdrawals
given
Court held that
District
with-
of the withdrawn lands
when
leaving
within the
company
entitled
select
acreage
insufficient
to satis-
them,
Forest Reserve Case.”
it did
fy
rights
the selection
*10
page
page
277]
S.Ct. at
U.S.
[311
was a
withdrawal
breach of the Government’s
obligation
thereby
because
that,
argued further
Government dis-
The Government
carry
obligation.
to
out
enabled itself
n even
govern-
for
the withdrawals
though
consequence which the
The
tached to such
District Court at-
such a
created
purposes
part
mental
on the
action
Gov-
were,
ernment was that
lands withdrawn
approved,
President
notwithstanding
open
withdrawal,
still
purpose
above cited. The
of Sec-
by
surveyed.
company
when
thought
company
that,
thereof,
tion 321
court
far
pertinent,
below
so
as is
here
entitled,
grant,
under the terms of the
relinquish
the existing right of the
respect
rights
to exercise its selection
with
United States to reduced rates for trans-
circumstances,
the withdrawn lands in these
contemplated
the Act of 1929
be
that it should
portation by
grant
a land
railroad in consid-
compensated
deprivation
right.
for the
of that
eration of
by
a release
any
such railroad of
“We think that the District Court was
claim
might
which it
position
have against the
and
liable to
Unit-
the Government’s
it is
only
any deficiency
account
for
lands,
ed States “to
interests in
com-
vacant lands
is not
at the time of withdrawal
pensation, or reimbursement on account of
granting
in accord with the
of 1864. The
act
Case, supra,
supports
Forest Reserve
or interests in lands which had been
clearly
decision below. It
there held that granted, claimed to
granted,
'have been
if, by
withdrawing
Government’s own act in
which it is claimed
grant-
should have been
indemnity limits,
lands from the
leaves
sufficient vacant
land available
selection ed to such carrier or
predecessor
.
.
.
thereby
company
select
becomes entitled to
321(b) provid-
interest
.
..” Section
.
lands
actly
brought
limits.
is ex-
within
That
ed, -however,
by
company
that:
done
which
what was
litigation in the Forest
about
“Nothing in this section shall be construed
decision is clear to
Reserve Case. The
effect
requiring any
reconvey
such carrier
assuming
grant
was deficient
the United States lands which have been
(which
matter
the court could
patented
it,
heretofore
certified
or to
presented),
on
record then
the
within the
determine
company
prevent
patents confirming
the issuance of
the
of the
was entitled to select lands
Secretary
title to such lands as the
pages 364-365, 61
[311
reserve.”
S.Ct. at
U.S. at
Interior shall find have been heretofore sold
pages 285-286]
by any
purchaser
such carrier to an innocent
preventing
for value or as
the issuance
It has been
noted at
outset
patents
to lands listed or selected
such
27, 1866,
topic
July
consti-
I that the Act of
carrier,
listing
or selection has hereto-
fully
Atlantic and Pacific Railroad Com-
finally
tuted the
approved by
fore been
Secretary of the Interior
to the extent that
road,
pany
post
military
subject
route and
patents may
the issuance of such
be author-
postal,
the United
the use of
States
pages
ized
law.” [
509 veyed comprising lands limits avail- New Mexico within the all of odd-num selection, able has bound bered sections within certain described aries. and to extent designated grant de and been a in since sometime Tile lands sold were prior 17, 1898, by section, township range, August al of scribed though and to the withdrawal 100,000 unsurveyed. part A of time which has at no been less than time lands were within the limits sold acres. grant part the limits. within the and 18, 1940, filed On December with Santa 1894, Subsequently, so and 1886 pursuant surveyed of the as were were much conveyed by then 321(b) Transportation Act of Section of the by and Pacific to Aztec Atlantic September 18, 1940, regulations and duly deed the lands recorded. the remainder 1905 Secretary prescribed thereunder, a release of sold, unsurveyed, and both description “any lands, all and claims of whatever by conveyed wore, quitclaim recorded, deed therein, compensation or interests reim- by Aztec Santa Fe as successor Atlantic lands or bursement therefor on account of so Pacific. sold and and conveyed Included granted, granted, interests to have claimed been 98,690.83 were Aztec acres [sic] claimed should been these and land the grant. suit. All of were are within any Congress act of the Fe Pacific Santa and Pacific limits of Atlantic any Company predecessor Railroad (A description, in the set forth any por- aid interest of the construction of given complaint, suit tion That of its railroad.” was ac- release margin.4) cepted approved and on 1, filing March lease Santa Fe also 1941. At the time of the re- filed with the In 1887 Atlantic Secretary, with filed Secretary of the Interior a selection certain compliance regulations prescribed with the lands limits of the within 321(b) Transporta- him under Section suit, pur- grant, including the lands in for the place 1949, pur- Act of a list of all innocent tion pose satisfying limits. losses Fe, whom or its chasers predecessor value to rejected by But selection was the Secre- Pacific, sold Atlantic tary upon ground lands were then unpatented lands within the limits of unsurveyed then therefore available Sep- prior Atlantic and Pacific other for selection. No selection 18, 1940, description with tember lands and Pacific has made Atlantic in suit list the name of sold. That included so an made in Santa Fe until Company descrip- Land & Cattle and a 26, 1942, application described. below June as above sold to that tion August 1898, 17, the lands in suit On set forth. of that Executive Proclamation 26, 1942, with filed Reserve, On June for the Black Mesa Forest date (now Office Commissioner the the General Land are now within what are included Bureau, Management) in the De- of Land Sitgreaves known Coconino National application partment Interior At time of withdrawal Forests. of, patent to, issuance of the selection prior times thereto and all sometime as lands sold to lands described above then the since September purchaser for value nocent exceeded sur- and Pacific Atlantic 1 Arizona, M. G. S. R. Area 1,862.08 N„ E., 5, 7, acres 13 R. 9 9........................ T. secs. 3, 9, 11, 15, 17, 19, 23, N„ E., 1, 5, 7, 13, 21, 14 9 T. R. secs. 10,993.07 31, 25, 27, 29, 33, ........ acres 35 35, 33, E%; (unsurveyed) N„ E„ acres .. R. 11 480.00 . T. 14 secs. SW% 15, 3, 7, 9, 17, 19, 21, 23, 1, 5, 11, 13, N„ E„ 12 T. 13 R. secs. 11,802.56 29, 31, 25, 27, 33, ......... acres 35 13 9, 23, 3, 15, 21, 25, 27, N„ 5, 7, 17, 19, E„ T. 14 R. 12 secs. 10,134.32 31, 33, 29, ............... acres 35 1,458.08 E-, 31, N., 15 12 ....................... acres T. R. secs. 33 3, 13, 17, 19, 1, 7, 9, 13, 15, 21, 23, N, E, 5, T. 13 13 secs. R. 11,849.78 27, 29, 31, 25, 33, ........ acres 35 3,439.44 19, 29, 31, E., 21, N., 14 .............. acres R. 13 secs. 33 T. 25, 5,736.51 N„ 19, 21, 23, 27, 29, 31, 33, E., . T. 13 14 . R. secs. 35 . . acres 31, 25, 29, 33, 5,717.59 N„ 19, 21, 23, 27, E„ . . . . T. 13 R. 15 acres secs. 35 21, 27, 7, 9, 11, 13, 15, 23, N., E„ 19, 25, 17, T. 12 R. 16 secs. 9,256.84 29, 31, 33, 35 ............... acres 9, 11, 13, 15, 23, 27, N„ 21, 25, E., 19', 12T. R. 17 secs. 8,465.20 31, 33, ............... acres , 7,469.47 N„ E„ 5, 7, 9, 11, 13, T. 30 R. secs. acres 5, 7, 9, 11, 13, 15, 17, N., E„ T. R. secs. 10,025.89 29, 31, 33, ............ acres 98,690.83
Total acres *12 18, 1940, by excepted the filed (b) of from release Santa Fe under Section 321 and 321(b) pursuant Santa Fe to Section Transportation Act of 1940. subject 1940, the to quired and patent Upon complaint in the lands ac- filing of the and place losses for the satisfaction of district court Santa Fe by and grant 27, July 1808. under the Act of answer, Government, filing without then an April notified On Commissioner rejec- Santa Fe and Aztec of the denial and tion of that judgment in summary filed a motion for upon application ground that upon ground its own that there favor identi- “the fied not been ascertained and land had any genuine acquired any interest was no issue as material so that the railroad convey prior specific land which it could was, fact and that there- the Government filing that, therefore, of its release and fore, judgment entitled a as matter a protected its is not under transferee Transpor- saving 321(b) To the of section law. Government’s motion clause May 1, 1943, tation Act.” On or about Santa were certain Santa Fe attached exhibits.5 Secretary appealed Fe of the Interior summary and Aztec also filed a motion for from the re- decision of the Commissioner January application. jecting On judgment upon in their own favor acting Secretary Assistant ground filed, namely pleadings Secretary, for the affirmed decision of the complaint, January 27, 1944, the Government’s motion for Commissioner. On Santa Secretary Fe a filed with the of the Interior summary judgment, exhibits at- February rehearing. motion for On thereto, tached showed that there was no that motion was denied Secre- the Assistant tary of the Interior. genuine issue as material fact therefore, that Santa Fe The lands are within the were, and Aztec in suit limits of the Atlantic and under entitled judgment granting, as a matter July the Act of non-mineral are law, prayed the relief for in their com- public lands, reserved, sold, granted, or lawfully appropriated, otherwise from The and are free plaint. Later, but hearing before on the pre-emption rights. or or other claims motions, two the Government affi- filed an withdrawal of such lands for forest davit stating for the purposes August that it was reason serve because on void the time withdrawal there of the opinion of the the release filed San- alleged above, large deficiency was, the a ta Fe on December 1940 barred the grant, lands were then and appropriated satisfy right of Santa Fe and Aztec to the lands in ever since been limits. The Santa release filed question, the Government had no reason pursuant 321(b) Trans- to Section of the January in its decisions February 8 and portation applicable ofAct 1940 is not expressly in suit because were ex- (the affirming rejec- decisions cepted therefrom, having been sold tion General Commissioner September 18, 1940, Aztec, innocent Land application Office of Santa purchaser tary suit Fe’s for value. The action the Secre- rejecting the selection of the lands the selection of and patent issuance of a application patent a thereto and the to the lands in suit—and denying Santa pur- Fe, in Aztec as Santa the interest of Fe’s motion was based an er- pass for rehearing) to chaser of upon, applicable laws, construction of the roneous ana that it had made no determination arbitrary beyond authority to, falsity the truth or allegation of the in violation of the vest- and was the ed rights Aztec and of Santa Fe and casts complaint of the the losses in to such lands. on their title cloud lands had exceeded prayed Fe and Aztec for a decree Santa within the limits of rejecting all enjoining Government since times August 17, 1898, before or the lands in suit and the allegation the selection question the lands in thereto, patent and direct- application public were non-mineral lands, not re- served, sold, granted, “to determine ing the lawfully otherwise appropriated, and free from pre-emption . . . to select the lands . . . rights, or other claims patent, the issuance of allega- tion that Aztec purchaser the . . . release” filed innocent regard without copies rejection, apparently copies to reconsider the The exhibits quitclaim opinion Fe’s contract of sale of the In- application rejecting deed to Aztec. Santa Fe’s terior Secretary’s copy patent, refusal *13 825, Forest the L.Ed. affidavit for such lands. value of case.) in suit the lands The fact that Reserve was, in stated further that the Government in a national for were withdrawn inclusion knowledge or consequence, without operate to defeat forest reserve did not as Santa Fe and Aztec rights had have as to form a belief formation sufficient to opinion (Here United cited lands. the the and, there- allegations the truth of those Ry. Co., 311 U.S. States v. Northern 264, Therefore, 210.) fore, denied same. the L.Ed. 61 S.Ct. Judge according to the court was of the view — to the district The case was submitted opinion “in the circumstances Groner’s —that proved complaint, on the described in the summary —if court on the two motions suit were the involved the trial —” judgment affidavit and the exhibits and selection, formality of a identified without the court denied the referred to. The district Fe at and as a result the Santa patent of a tached and the issuance granted motion of the Government and duty In a became terior. that of Santa Fe and Aztec and entered opinion (Here & St. Paul the cited Pacific, 11 S. final judgment Pacific v. Northern favor. The Gov- their upon, the case relied Ct. 35 L.Ed. appealed judgment ernment that then Supreme appears above, in its This that this court. court ruled case.) in the Forest Reserve properly Government’s motion denied ruling above. Then followed the described summary judgment but that in favor short, remanding thus court of Santa Fe and Aztec not shouíd have proceedings in the district case for further entered, and the court reversed accepted legal theory of Santa court same and remanded the case further complaint underlay which their proceedings opin- in accordance its with indemnity lands unnec- is selection of ion, if and when answer was filed up place essary deficiency fill when a Krug Government. v. Santa Fe Pac. exists; and court remanded Co., 1946, U.S.App.D.C. R. hearing case for a on opinion court, F.2d of this writ- deficiency of a fact as the existence stated, Groner, ten then Chief com- “in the circumstances described Justice decision, as reasons in substance plaint, It im- proved on the trial.” is —if following: effect the portant note that “the circumstances complaint,” alle- e., described in i. upon The Government its motion for sum mary argued judgment complaint respect had the district a gations of the .to upon appeal court —and insisted had —that above, deficiency, were, appears deficiency indemnity existence of a indemnity deficiency there been a had up place to make land losses was not material since made no selection up place fill from some- lands to land losses i of lauds and without selection had no terest August time the date conveyed which be Aztec. If could withdrawal, and “at all correct, times since” the Government was contention summary judgment its motion for should then have been 100,000 no had been than which at time less court; the district but continuing deficiency acres. It was this correct, if was not if the the contention theory upon which the case of Santa Fe and Aztec of Santa Fe and Aztec formal unnecessary deficiency when a selection was based, upon deficiency not then, correct, lands existed was the though period lesser than of time that described. summary judgment should not Government, in favor been entered Clearly, remand, under such a defi- judgment properly en could such neither ciency was shown Santa Fe and Aztec or Aztec —for the reason for Santa Fe tered that prevail. equally were to But it theory is clear was correct the Govern if their prepared to admit the fact of ment was deficiency that if such a was not shown the e., genuine deficiency, was a i. there issue a as to judgment Government was to have —be- And —ruled the court— was incor a material fact. dispute it was not in of the Government cause that Santa Fe the contention theory of Santa Fe and Aztec rect and had made no selection and court, rightly so the district correct —and was decided: general opinion by Judge Groner, its recognized is as a while true because necessary rule, to vest rule, is, a general that as in the ab- specific any right lands in a rail deficiency, necessary sence of a selection is long grantee, Court has road specific vest exception recognized is a where satisfy place land to under railroad the land stat- opinion (Here cited United land losses. foregoing utes. The limitations of Ry. Co., 256 Pac. U.S. Northern v. States plaint remand, put which rulings in issue were based, They answer. included became the law case. also facts relevant deficiency issue, relevant facts dis- After case to the the remand of the not, estoppel to an issue of which was trict court filed an answer the Government terms, complaint raised complaint Fe and Aztec. answer, which, appear below, but as will allegations admitted all answer *14 subject appeal. of contention on this complaint except allega- of fact in the the upon The agreed facts are relevant that deficiency, allegation tion as to a the to estoppel the issue of following: the were purchaser Aztec was a bona fide for value there was no trict nized in the as ever arisen subject lands in suit had arisen in Santa Fe which n and issue of lected. didnot were tions of the really could be ber cluded the lands tion of intended no suit were ment veyed. cases of the The entered veyance of the lands in suit to Aztec demnity come recordation say, the Fe to Aztec. But those that contract of swer. The answer Santa After alleged, right attaches Government, by relying deeds referred to in the put court. that where Fe some allegations of all of a the time of the law into lands intend All Government was transferred as as in issue had “sold” subject lands but sale as whether there was assertions that an upon between of those filing sale no complaint Payne and in arisen in to to deeds, on the of stipulation of facts was and interest facts limits satisfy suit, deny of the contract Aztec. the lands facts any specific denied suit Fe which the Government’s to Aztec. That law, its “conveyed” by the Government but admittedly general the answer contrary alleged in allegations and the the execution of asserted until Santa Fe and filed with denial, apparently agreed The Government an excess of only allegations i. contending Forest indemnity also the execution and had been sur- interest e., they the lands could be rule to raise land losses interest complaint. allegation upon in- the com- no selec- possible Septem- Reserve of are excess, allega- recog- enact- in Santa with- plicable lands were 16, 1931, con- dis- sale fact an- be- se- an in in therefore, be considered as available until such adverse March L.Ed. the the after duo and careful way Company (256 a ception of that case of United indemnity approved by Interior on December treat approved was sent to the law firm of Britton well in mind the States indemnity vacant limits 22, 1932, nevertheless included ern with the as follows: accepted rule, as available for the the said limits are of the Assistant adversely and Santa ment of the demnity question, the General Land Office submitted to the Pacific. That a statement of a “tentative Secretary of the Interior in ‘Lack of “Said “The same “In the On protest Interior), future land, indemnity company grant immediate selection. While it “theory Gray Washington, November them available in the 825]), pursuant as Fe. both Supreme Court, unsurveyed ruling disposal grant and not to future within lands available to fill the same and adjustment it has available adjustment to a statement of the and until in limits such as the with the Commissioner only potentially available, they limits which are vacant and survey of claim treating Britton and surveyed Railway Company applicable unsurveyed under which it was made” was place the Assistant Commissioner, remained available to the land that: July 27, 1866, or conclusion was limits. That States readjustment selection, addressed to the Secretary 30, 1931, indemnity ruling always takes company « * land losses charge against made, U.S. 51 indemnity of its in the disposed lands in the Interior of railroad was raised v. Northern * * those to which the and laid down place.’ [*] indemnity. in its decision in the lands consideration, having Gray and until 1931. On December the Commissioner of of the hold it is grant D. all lands unsurveyed, did not with the [*] readjustment Secretary [41 readjustment included a state- readjustment” an grant, in his C., representing readjustment lands the vacant to Atlantic and adjustment. thereafter and only proper (letter grant and this office grants “office are adversely approved by uniform Pacific Rail- disposed adjustment taking the North- the United within On March dispose connection the. subject indemnity indemnity report available approval may here “F” of the in- should, of the having letter” within grant ruled filed and and are the ap- ex- be as of to of nity March 31 of each tic and Pacific eral attached to the figures tions within the substance and of the Interior in the the of the to Atlantic and findings, including Bet forth in certain schedules A findings. Those schedules tion within the disturbing March deficiency reau of Land Grant.’ since December concluded that be made of the books and records of respect.” thereof. There man Joint in the same question are, (a) the On “In view of the place, Undersecretary caused, company, deficiency Land July 16, 12, 1872, Attorney General, facts, total in and as such it is against Ofiiee) other year Committee, limits. modifying truly available agreed Management (formerly area until 1947, grant; issue effect, Pacific make the vacant to ‘Hon. N. J. [*] from 1872 to is, therefore, 31, stipulation. They made certain administrative than to the the results of which foregoing disposed finding 1924, in annually lands available for selec- *15 were, [*] (b) disposals in satisfaction of losses these: Northern Pacific Land correctly response reaching limits of the Atlan- limits of the there had became Exhibit odd-numbered an examination to adjustment [*] to the unsurveyed proper with stating as of December no 1940, Undersecretary company; Sinnott, Band up showed as of is, to a adversely occasion respect adjustment effect for losses comprised of therefore, inclusive: them here finding, request to said indem- charge Chair- grant were findings Gen- sec- Bu- (c) no 24 in in to thereof surveys appears, a reference of the and an hibit 24 throughout terior refer to the dates of pendix. of and the and the Exhibit 24 is attached include an ment and spect figure, findings the Court may be withdrawn); unsurveyed (both (according While the the lands part appendix administrative vacant to total of stipulation figure shown in Exhibit Joint appendix of fact of of used stipulation Joint of July wit, 1,454,087.12 Santa Fe and Aztec agreement the lands in suit set forth in the the briefs of in Appendix. stipulation as the page make.” Appendix suit, [court’s] Undersecretary 16, stipulation) “may withdrawn).6 (d) thereto are as worded is a 204A it did findings findings 1947. basis completion to the administrative parties as to the correctness land losses. findings part did in both of include, for such ultimate (both Those the case. Ex- acres is appears is at in the not, may tabulates of the record margin.7 Those appendix the Govern- 24 with stipulation, of the In- of vacant and Joint request the same in page as above findings fact surveys record; adopted terms, figures not to used; dates Ap- But 204 settlement, pre-emption, 6. The term “vacant lands” as or other used lawful stipulation disposition. means lands not This should be borne in mind disposed persons reading opinion. of and the other 24 in Exhibit and this than railroad, g., e. virtue of homestead 321 7. Appendix “A” Arizona
Gila and River Salt Meridian plats survey
Official of Township Approval Range Filing Section Date Date Acres 5, 7, E., 28, N., 9 18, R. 9 secs. Feb. 1,862.08 T. 13 1935 Nov. 1936 1, 5, 7, 9, 3, N., E., 14 secs. R. 9 T. 11. 13, 15, 17, 19, 27, 21, 23, 29, 31, 33, 35 10,993.07 Feb. 1935 Nov. ; 33, E%; 35, N., (unsurveyed) R. 11 sees. 14T. SW% B„ 480.00 1, 3, 9, 11, N., E., secs. R. T. 21, 23, 25, 29, 31, 33, Oct. 11,802.56 1895 Nov. page 7Note continued on 17, 1898,. August less time also included stipulation of facts 100,000 than acres.” by the issue raised facts relevant which, The court made conclusions law allegation denial of the Government’s follows: pertinent, were as so far as here fide complaint Aztec a bona purchaser lands in suit. value of the August 17, “That the withdrawal was void in view I do not state those facts because Findings Fact, in . . . found view I take herein filing by Fe time that Pacific Santa claims need not district on that issue court further release of of of the construction lands its aid considered. 321(b) pursuant railroad, to Section The case was submitted to the district Act of ques- to select the lands Pacific had a agreed upon. c^urt on facts The court purchaser Aztec. of its tion interest findings made and conclusions fact deficiency in law. On as to the issue Pacific select “That apply the issuance said lands and up place make lands to patent thereto in the interest the Atlantic and said release.” is not barred found, substantially the court words of fact or con- findings made no complaint, that: respect issue clusions of law “Prior and at the time of the with- said estoppel, issue was but that such an *16 drawal, August 17, 1898, [of of the case is evi- volved in the decision purposes] and at all suit forest reserve including 1940, place times opinion thereafter denced unsatisfied losses grant in the limits of the topic opinion. to in of this ferred IV surveyed exceeded the within indemnity available judg- then entered The district court selection, to that extent there was and ment for in substance Sante Fe and Aztec deficiency in the has been since some N., E., 3, 5, 9, 15, ', 12 T. 14 R. secs. 1 17, 19, 21, 23, 25, 27, 29, 31, 33, 30, 10,134.32 9, 35 Oct. 1895 Mar. 1896 31, N., E., 30, 9, 1,458.80 T. 15 R. 12 secs. 33 Oct. 1895 1896 Mar. 5, E„ 1, 3, 7, 11, N., 9, 13 13 T. R. secs. 13, 15, 17, 19, 21, 23, 27, 25, 29, 31, 11,849.78 33, 30, 9, 35 1895 Mar. 1896 Oct. 19, 31, N„ E., 21, 29, 14T. R. 13 secs. 30, 3,439.44 9, 33 1896 Oct. 1895 Mar. E., 19, 21, 23, 25, N., R. 14 T. 13 secs. 29, 27, 31, 33, 20, 5,736.51 9, 35 1896 Oct. 1895 Jan. 322 E., 19, 23, 25, 21, N„ T. 13 R. 15 Secs. 27, 29, 33, 31, 20, 5,717.59 9, 35 1895 1896 Oct. Jan. 7, 9, 15, N„ E., 13, , 12 11 R. 16 secs. T. 17, 23, 19, 21, 31, 25, 27, 29, 33, 14, 2, 9,256.84 35 Oct. 1937 Oct. 1939 , 7, 13, 15, 3, E., 11, N., ! 12 17 secs. T. R. 23, 21, 31, 25, 27, 29, 33, 2, 14, 8,465.20 35 Oct. 1937 1939 Oct. 11, E„ 5, 9, 10, N., 7, R. T. 20 secs. 19, 13, 15, 17, Sept. 21, 19, 4, 7,469.47 23 1917 Nov. 1918 '5, 7, 9, 11, 13, E., N., secs. R. T. 21, 15, 17, 19, 25, 29, 27, 10,025.89 Nov. June
51o complaint. ap- place prayed given This unsatisfied time losses at a peal surveyed acreage taken. (cid:127) —with the then current and, necessary, with- unwithdrawn 'I length at the manner described light indemnity areas. In the drawn arose, in which the nature of the this case foregoing figures accredited court, first trial and the district decision in stipulation, 24 as briefs and Exhibit court, appeal the first in this correct no de- make clear there was proceeding the second and decision ficiency surveyed December lands after the district court I de- because think figures following: 1924. The show the scription necessary just to make clear what Fe, original claim of Santa questions should be considered on this losses, e., place i. the total was for appeal. take the view reduce I By acres. the end two, 1.454.087.12 question themselves to but 989,239.63 Sante Fe had already selected deficiency whether or not there was all acres —other than the lands in suit —in sat- times August since isfaction of its claim. That left 100,000 less than acres 464,847.49 a net claim of unsatisfied acres. up available to fill land losses There were available satisfaction of grant, Atlantic and Pacific and the the indemnify claim at the end of estoppel. acres of lands in the 167.632.33 368,419.41 unwithdrawn area and acres of Was the finding district court’s as to surveyed area, lands in the brief, correct ? As said in their 536,051.74 total of Thus, acres. the “appellees’ case stand must or fall on end of was an excess of sur- allegation complaint of their . veyed indemnity lands over the and on the finding of the District Court 71,204.25 claim for land losses of *17 . . . prior since to sometime proper acres. It is surveyed to count the date of the 1898 withdrawal there has lands in the withdrawn area because the deficiency been a in the Atlantic Pa-& surveyed area, lands in the unwithdrawn cific not 100,000 of less than acres.” acres, were less than the unsatis- 167.632.33 question The as to the correctness of the indemnity 464,847.49. fied claim of finding court’s must district be answered figures 99,637.- show for 1925 an excess of rulings, topic in view of the reviewed in acres; 1926, 157,745.23 04 acres; for for opinion, I of this of Supreme Court 158,967.48 1927, acres; 163,162.45 for in the Forest Reserve case of 1921 and acres; 1929, 161,524.95 for acres; 1936; for the Northern Pacific case 1940—the 173,615.39 acres; for 171,750.03 ruling, say, that is acres; that where the with- 1932, 203,034.81 for acres; for indemnity drawal lands leaves de- a acres; 1934, 213,245.17 for 206.633.12 ficiency satisfy place land losses the acres; 1935, 213,893.53 for acres; for withdrawal is void and the railroad 257,692.87 acres; 1937, 274,533.66 for recourse the lands within the with- acres; 275,013.66 for acres; area, drawn and the ruling 352,061.26 in ascer- acres; 367,089.83 acres. n taining amount available land years with- each of the 1925 inclu- satisfy place sive, limits to proper it to count surveyed only surveyed land losses lands are to be the withdrawn area because the question considered. as to the exist- lands in the unwithdrawn area deficiency is, therefore, ence of to be were less than the unsatisfied indemnity by comparing the answered current in- claim. I set forth in the margin table, demnity is, claim of the railroad —that its based on Exhibit 24 and the accepted 516 release, place until after execution figure 1,454,087.12 of total acres therefore, itself, acquired no which Santa Fe losses, process showing land terest, equitable or legal, either foregoing figures are reached.8 Hence, those lands were not suit. since establish that figures Thus subject deeds of sale with or contract but on deficiency, no 1924 has been Aztec, prior September e., had not 1° i. excess, contrary Aztec, 1940 been sold satisfy place. land losses under Santa saving not within the clause therefore rulings of Fe’s claim if the 321(b) of the Section case and the Forest Reserve acquired nothing that date. Since Santa requiring considera- Northern Pacific case convey Aztec, the issue it could and, required, if tion of both unwithdrawn purchaser Aztec bona fide was a whether respected, surveyed lands are the lands in suit"is immaterial for value of district, It follows that the decision district and need not be considered. The deficiency favor of court on the issue in with the decision is accord court’s was, Aztec a matter the case as laid down this law law, not correct. It from this follows described) opinion Judge Groner Santa Fe judgment in favor of topic opinion. The court II erroneous —for since there was solely determina- manded the case excess after 1924 losses, or not in the satisfy whether
lands to tion the Forest Reserve and Northern specific indemnity light of Fe of the n times since necessary acquisition decisions there at all in suit was of Pacific August 1898 disputé thereto; without losses, satisfy attempt that Santa Fe did to select opinion made clear no such de- (save attempt the lands abortive ficiency found the Government was to unsurveyed) were still 1887 when ' . 7 6 *18 years figures end of each 1 denote the mentioned. in column The designate 2, 3, 4, figures and 8 acres. in columns The figures the difference between in denote those columns and 3. column The figures figures 6. the sum of the columns denote in column figures figures between 7 and 8 denote difference column in col- in column umn pany complaint. a de- stated” in the there was prevail; lawfully pre- include, Aztec to Fe did not and could not ficiency were Santa included, have within that the name list vail. purchaser “right of Aztec se- as a district law of The conclusion of right apply lect” or of a “to for the issu- “right Fe Pacific court that the of Santa patent” ance of a lands not selected. The select” the lands suit and the attempted 1942, by selection of June apply for the 'Santa “to issuance legal- Santa Fe in the Aztec was interest of patent is not thereto in interest of Aztec ly ineffective—since a right to select by the said of December barred release” not saving within the clause of Section 18, 1940, is foundation in law. without 321(b). attempted of 1887 For, above, appears saving clause legally was also ineffective it is because 321(b) Section dispute without that the suit were 18, 1940, covers, September far so surveyed; at that time not and it was de- pertinent, only here “such lands as cided North- Secretary of the 'Interior shall find have ern Pacific case 1940 that no selection by any been sold heretofore such carrier to because, can unsurveyed be made of purchaser an innocent for value.” Santa surveyed, they public until are not lands. Fe, above, as said could not sell to Aztec attempt support Santa Fe and Aztec acquired lands to Fe had their contention that there has been a de- saving title. The clause of 321(b) Section ficiency satisfy nothing excepts contains from a release since 1924 comparing “right ap- select” “to current claim commencing with ply patent” for the issuance of to lands the end of 1924 with the surveyed current Moreover, release, pursu- selected. acreage lands, in unwitlidraum tois requirements ant to the 321(b), of Section say, leaving out surveyed of account the “any released and all claims whatever lands in the withdrawn area.9 'But the description therein, interests com- method is untenable give because fails to pensation or reimbursement therefor on ac- rulings effect to the in the Forest Reserve count of lands or granted, interests claimed case Northern Pacific case of 1940 granted, have been claimed [sic] surveyed the effect that where the should by any act of the in the unwithdrawn area are in- Congress to Santa Fe Pacific Railroad Com- satisfy place sufficient losses re- pany or to predecessor in in aid interest course be had to any portion construction of rail- its area. road.” language That is so broad as to re- lease It is to anything be noted further in the na- that while the *19 ture of “right a to select” lands district or a court’s of law conclusion that the “to apply patent” for the withdrawal August issuance void was lands not selected. is correct Santa filed with the that is so Fe reason that if only surveyed in Interior the time the re- unwith- lease filed merely was a “list all drawn area innocent counted are do for value purchasers any to whom Santa not said total at time after the withdrawal predeces- Pacific Company up Railroad or its sufficient amount to make sor, Company, Atlantic Railroad But this, and Pacific losses. it follows from un- any unpatented case, der the ruling had sold lands within in the Forest Reserve grant prior September the limits of its that recourse to the withdrawn was permissible description against with Government; of the lands so as and, sold, including the said list as above, the name is demonstrated once re- Company the Aztec Land and surveyed Cattle course to the withdrawn is description of the lands com- sold that acreage made and the thereof added to the merely comparing figures 9. method is that of The in column of footnote 8 with figures in column5. n surveyed Land Office the General Commissioner of acreage in unwitlidrawn and March demnity deficiency, on November but there is no area topic in II contrary of which are described excess, end after the upon to an opinion relevant agreed up facts make lands to taken estoppel. position In the issue of land losses. rulings Aztec as- in Fe and those —Santa IV the Interior was not sert—-the urge But Fe and Aztec .Santa until Northern overruled the second III) (described topic in foregoing method Supreme Court case in wherein is, indemnity lands counting available be con- could surveyed lands held that previous positions determining because inconsistent whether sidered as available it, open taken to the Government. deficiency existed at to what extent a surveyed argue “Thus,” say Santa Fe stated time. Santa Aztec properly be counted present cannot Aztec, withdrawn lands “it was not until indemnity lands computing successfully position the available appellees were in a in the Forest prior ground because decision involved on the claim the lands here in 1921 Government Reserve case invalidity the 1898 withdrawal.” rely “maintained permit decades now to To Government selection, and unavailable for position, counting was available ground rejected on the regularly selections long that “because the courts at last properly lands had that the selected that á which creates a held withdrawal Aztec Fe and invalid, . Santa deficiency withdrawn . is the with- therefore further that contend disregarded determining drawals must be given case itself “not deficiency” Forest Reserve whether ever was would Department per- be- urge full Land Aztec its be—so effect Santa Fe —“to that, in Secretary’s position present Secretary cause of the mit the [of Interior] existed, ascertaining advantage predecessors’ whether a to take his unsurveyed decision, in- wrongs.” take into he could account The district court in its demnity explained opinion, apparently as well in its respect . ..” In this Santa moved similar The . considerations.10 rulings of the refer Fe and contentions of Fe and Aztec thus charge opinion of the district rail- United States printed oral, reported company gift prophesy is with the but was road suggesting language assert the railroad the record. ignored estoppel should have is as follows: action “ further and should insisted on . . . The Government selecting nothing due under these lands 1921. To remained claims that permit original grant Pa- such a allow Atlantic & result would be to contention, advantage Company. the Government to take of its cific Railroad years proposi- many however, action on the own later turn based later — —was held the illegal.” since the action United tion that withdrawing erroneous States n Fe’s and Aztec’s on in 1898 must be deemed contention reserves forest subject phrased appeal on this as fol- reason of the been ineffective to have *20 Supreme ruling : in lows Court appellants pre- in “If were correct their could had Railroad viously lands, present that and has lost 'contention lands withdrawn these selected right right under a claim of as to which so the 1940 release. to its do regularly however, Government, selection was denied are now had with- “The regarded available, be as and contended after land in 1898 drawn right It have ruled selection is not do so. declined courts that a had it necessary accept for such selections of identification in cir- claims adjustment cumstances, put into then tho of rail- had the forest been lands which grants will have been turned until 1921 road was not It reserve. species game, ruling a an Supreme of shell absorb- a into rendered legerdemain legal ing position of kind where the was erroneous. the Government’s question “Surely, receives same different answers circumstances under those
519 affairs, management governmental of nomic outlined of the district recognized by 4 of gov- 2 Art. Cl. of and is Sec. effect, are, particular court in this in . the ernment . and while Constitution . leasing raising estoppel against an the Govern- seeking purchaser, of a is days’ thirty property on a of conditioned such ment. pur- a ease notice to terminate such lease in chaser jecting sub- is have the effect of found cannot finding There is no of fact the district property mu- such to taxation respect regular in the asserted of nicipality ...” in it situated which is rejection ground that page of selections on the [99 863] F.2d at properly selected with- In the Van Brocklin case drawn, is finding and there no fact Court said: respect of reliance hold do and cannot “The United States not may, rulings private property, administrative with reference a as monarch personal property purposes. and reve- All the unsurveyed regular But lands. even if such nues applied must held of the United States be rejection reliance be of selections and such pay pro- ... ‘to the debts general wel- assumed, is, view, vide for the common defence and my there no force ” [117 fare of the United States.’ U.S. estoppel Fe and contentions pages 158-159, page 674] 6 S.Ct. Aztec. disposition public generally If estoppel It is settled law that no can governmental is a the exercise of func- against the Government arise exer- tion, disposition such fortiori public governmental cise of a function promote, public interest, the de- distinguished proprietary as from a one. velopment of railroads is the exercise of a States, Light
Utah Power &
Co. v. United
governmental function.
37
61
S.Ct.
assumed, arguendo,
But even if it be
791;
Sanitary
cf.
L.Ed.
District
United
v.
disposition
public
exer-
is
States, 1925,
266
45
U.S.
S.Ct.
proprietary
cise of a
function
an
so that
352;
Am.Jur.,
States,
69 L.Ed.
United
estoppel
inapplicable
against
would not be
as
124, pp.
631-2.
authorities indicate
§
Government,
fact that
nevertheless the
disposition
holding
also that
the Government has
taken inconsistent
public
governmental
ais
function. positions
before
after 1921
to the
as
Tennessee, 1886,
Brocklin v.
Van
State of
counting
lands,
of withdrawn
and before
845;
U.S.
29 L.Ed.
counting
after
of un-
City
Springfield
States, Cir.,
v. United
estimating
the amount
1938,
since
as
out in
I
topic
less
time had been
opinion,
only
III
to count
times since” which at no
of this
surveyed
100,000
It was made clear
than
acres.
lands in the unwithdrawn in-
deficiency
demnity
if
was
But,
above
the remand that
such a
area alone.
as
demon-
strated,
prevail,
properly
shown Santa Fe and Aztec were to
that cannot
be done be-
deficiency
but
shown
cause under
that if
not
decision in the North-
such
judgment.
have
necessary
ern
the Government was to
Pacific case it became
indemnity
surveyed lands,
Counting
count
lands under the rules
sur-
veyed
stated
lands
unwithdrawn
there was an excess
area alone
place
lands
satisfy
are not
land losses
sufficient to
over
losses;
By
end
therefore,
surveyed
the end
lands
of 1940.
67,634.36
been
withdrawn
of the lands in suit had
area must be counted and when
acres
they
18, 1936,12,855.15
surveyed. By
are
November
deficiency
counted there is no
surveyed,
after the
had
end
additional acres
1924.
in suit
October
all of the lands
V
except
no con-
(concerning which
480 acres
per-
summary
In
and conclusion:
appears
made) had been sur-
tention
to be
acquisition
respecting
tinent rules of
law
veyed.
surveyed, the lands became
When
under railroad construction
lands
subject
there-
to selection. Santa
could
grants are,
Payne,
Forest
reflected
selections
filing
fore have commenced
'
cases,
Reserve, and
Pacific
Northern
these:
completed
same
If
there is an excess
Transportation
Act of
enactment of
railroad, in
over
order
September 18,
did
do so.
1940.
It
not
specific indemnity
that its
Hence,
acquired
no interest
attach,
identify
shall
must
in suit
there was no sale of
and therefore
selection;
if there is a
subject
lands to Aztec
could be the
which
are,
necessary
the lands
not
—all
(b)
saving
clause of Section
Government,
the railroad and the
between
Gov-
Act of
former’s claim.
“appropriated”
rely
estopped
upon the
ernment
amount of available
ascertaining the
rules
above reviewed. That Santa
of law
surveyed
lands, only
lands are to
demnity
misapprehended
Fe and Aztec
unsurveyed
being
be counted—
ultimately declared
those rules as
in the de-
Recourse,
counting
avail-
“public land.”
cision of the Northern
case
lands,
to be
is first
able
relieve them from the
there-
does not
force
areas;
but
(vacant)
unwithdrawn
Fe filed
as the
of. Had Santa
selections
satisfy
are insufficient
therein
Depart-
and had
lands were
may then be had
recourse
place land losses
Interior for
re-
ment of the
reason
withdrawals, in
open
them,
then,
jected
the courts were
indemnity lands to
deficiency of
aof
face
now,
validity
to test the
are
It
losses,
void.
being
place land
satisfy
jections.
case,
pre-
when
this
rules that
these
under
conclude, therefore, that the judgment
I
court,
was remanded
viously before
court in favor of
the district
Santa Fe
remand was
proceedings.
further
erroneous and
and Aztec is
should be re-
allegation of the com-
in view
made
judgment
versed and
favor of
Fe and
plaint of Santa
Aztec—
should be ordered entered.
pitched
case
their
allegation
—that
on
notes
v.
leave
Carthy,
“
valid
U.S.
L.Ed.
secured a
693:
had
that Wakelee
and
judgment
party gives
bankruptcy
‘Where a
a reason for
his
unaffected
conduct,
touching anything
accepted
and decision
proceedings.
this con
Wakelee
controversy,
cannot,
and, therefore,
involved in a
he
aft-
did
meritorious
tention
litigation
begun, change
opposition
er the
ground,
has
protest
his
his
when
put
discharge
his conduct
another
in bank
petition
of Davis
and different
He
ruptcy
consideration.
is not
Wakelee
dismissed. But
”
permitted
judgment
thus to mend his hold.’
brought
[156
on the
an action
690-691,