273 F. 469 | 9th Cir. | 1921
The Timber Company sued Muck and wife to settle a confused and disputed boundary line of a strip of land along the Willamette river, Oregon. Muck has had possession for several years, and claims under right to enter the land as a homestead, while the Timber Company contends that its lands extend to the river. From a decree in favor of the Timber Company, Muck appealed.
The Timber Company owns a tract which was a part of two' donation ■ land claims appropriated in 1855 by James Loomis and James John, respectively, and patented in 1866. Muck’s contention is that the surveyed westerly boundary of the donation claims running along the river did not coincide with the meander line of the river, and that there is a strip of vacant land subject to homestead entry. The land office rejected Muck’s application, on the ground that the records of the land office did not show a lotting of the tract applied for, and that the field notes and record of surveys of the donation claim showed no' vacant land between the west line of the claims and the Willamette river, and because, according to the field notes of the survey of the claims, the right bank of the Willamette river is the boundary thereof from the northwest corner of the Loomis to the southeast corner of the Johns claim, “and it is so shown on the plat of the township approved September 25, 1862.” On appeal from the decision of the Commissioner, the Secretary of the Interior affirmed the ruling) of the Commissioner, saying:
“The plat of survey of the donation land claims was filed in 1862. Prior to that time James Loomis had filed his application for 640 acres of land, which application described the lines by courses and distances, starting from a point on the bank of the Willamette river and running to the same point after following out certain boundary along the meanders of the river bank of the Willamette river to the place of beginning. The John claim commenced at a similar point, and running to the Willamette river, thence southeasterly along the said river to the place of beginning.”
The Secretary held-that the application showed that it was the intention of the donation land claims to appropriate the land up. to the banks of the Willamette river; that, in surveying out the claims, courses and distances were followed, but according to the records of the General Land Office the courses and distances correspond with the meander line of the Willamette river; that the survey had been in existence for nearly 50 years, and:—
“although instructions were subsequently issued to the Surveyor General to survey out any other vacant public land into lots that were made fractional*471 in this township, the alleged vacant government land in this township, the alleged vacant government land applied for by Muck was never returned as government land, nor has it ever been platted in a tract or lot.”
The Secretary cited Railroad Co. v. Schurmeir, 74 U. S. (7 Wall.) 272, 19 L. Ed. 74, in support of the view that the water course, not the meander line as actually run on the land, is the boundary. On motion for rehearing the Secretary re-examined the field notes, and after quoting from them abided by his former decision that the river was the boundary line of the donation claims. Subsequent attempt to open the question with the Rand Department by application for a survey of the alleged vacant tract was unsuccessful. Rehearing was applied for and former decisions were reaffirmed. Then a “petition for the exercise of supervisory authority” was filed with the Department of the Interior, and again the former rulings were affirmed.
Appellant now insists that the records disclose that, the Rand Department officials have misconstrued the language of the patents and of the field notes of the surveys upon which the patents are based, and that they have erroneously treated the original donation land notifications of Roomis and John as muniments of title. It is also argued that the decisions of the land officials were not competent evidence, and that the officials were without jurisdiction to grant away any estate that the United States may have had in the lands not included within the patents.
The interpretation of the survey notes became a question of fact, and the effect of the decisions of the Interior Department is conclusive in this proceeding. Gardner v. Bonestell, 180 U. S. 362, 21 Sup.
It was also insisted in that case that the last survey was a mere compilation, and not an actual resurvey, and that it included a large body of lands on the one side, which were not in fact within the boundaries of the tract of which judicial possession had been given, and excluded, on the other side, a large body which was within such boundaries, and which included the lands in controversy. But the court held that the Land Department, in a case within its jurisdiction of questions of fact-, having found and adjudged that the land in litigation was outside the exterior boundaries of the grant, the finding was a matter of fact an'd based on testimony, and that such determination concluded the courts. St. Clair County v. Lovingston, 23 Wall. 46, 23 L. Ed. 59.
- Inasmuch as appellants claim only by a possessory right, it is not entirely clear that Muck is an “owner” of the tract in his possession and that the statutory remedy is available to the> Timber Company. On the other hand, Muck claimed a right to acquire ownership, and the contest is one to.settle a boundary line, and not one to try title. Besides this, there is an allegation in the complaint, and some testimony tending to support the allegation, that defendant or his agents wrongfully and fraudulently attempted to destroy certain original witness trees and to efface original markings, and did mark other trees so as
We find no error, and affirm the decree.
Affirmed.