103 F. 568 | U.S. Circuit Court for the District of Southern California | 1900
The act of congress of June 4, 1897, entitled “An act making appropriations for sundry civil expenses of the government for the fiscal year ending June thirtieth, eighteen hundred and ninety-eight, and for other purposes,” contains, among other things, various provisions in respect to forest reservations, commencing with the declaration that:
“No public Corest reservation shall be esiablished, except to improve and protect the forest within the reservation, or for the purpose of securing favorable conditions of water flows and to furnish a continuous supply of limber for the use and necessities of the citizens of the United States; but it is not the purpose or intent of these provisions, or of the act providing for such reservations, to authorize the inclusion therein of lands more valuable for the mineral therein or for agricultural purposes than for forest purposes,’’ — and including this provision: “That in cases in which a tract covered by an unperfected bona fide claim, or by a patent, is included within the limits of a. public: forest reservation, the settler or owner thereof may, if he desires to do so, relinquish the iract to the government and may select in lien thereof a tract of vacant land open to settlement not exceeding in area the tract covered by his claim or patent; and no'charge shall be made in such cases for making the entry of record or issuing the patent to cover the tract selected; provided further, that in eases of unperfected claims the requirements of the laws respecting settlement, residence, improvements and so forth are complied wiih on the new claims, credit being allowed for the time spent on the relinquished claims.” 30 Stat 11, 35, 36.
Tbe present is a suit in equity to quiet the complainant’s alleged title to lots 1 and 5 of the fractional X W. of section 4, township 4 X., range 18 Wv San Bernardino base and meridian, situated in Ventura county, Cal., alleged to have been acquired by the complainant’s predecessor in interest, one J. B. Johnston, who is alleged to have selected the land under the above provisions of the act of June 4. 1897, in exchange for patented land within a forest reserve surrendered by said Johnston to the government. The. bill Includes a prayer for an injunction enjoining the defendants from the commission of their alleged unlawful threatened acts of entering upon the lands in controversy and boring for and extracting any oil that may be found therein. Upon reading the bill an order was made requiring the defendants to show cause why an injunction should not, be granted as prayed for by the complainant, and why the temporary restraining order granted by the court should not be continued pending the litigation. In response to the order to show cause the defendants appeared and filed a demurrer to the bill, as also a verified answer thereto. The complainant, claiming that the answer raised no material issue of fact, moved for judgment on the pleadings, which motion was, by the stipulation of counsel for the respective parties, heard with the demurrer and the order to show cause. From the pleadings it appears that on the 20th day of January, 1900, Johnston was the owner in fee simple, free of any lien or incumbrance, of lot 2 in section 5 of township 4 X, range 15 W., San Bernardino base and meridian, situated in Los
The great importance that the oil industry has already assumed in this state, the enormous value of oil-producing lands, and the consequent avidity with which they are sought, coupled with the fact that the present suit will serve as a precedent for others now pending, has induced the court to take the case up out of its order, and to give to the questions presented careful consideration, to the end that the law upon the subject may be speedily settled, and the way indicated by which the title to such lands may be acquired, and the important industry referred to encouraged and developed. In the case of Gird v Oil Co. (C. C.) 60 Fed. 531, 532, this court pointed out that the government title to oil-bearing lands can only be acquired, under existing laws, pursuant to the provisions of the mining laws relating to placer claims. And in the very recent case of Nevada-Sierra Oil Co. v. Home Oil Co. (C. C.) 98 Fed. 673, it was here decided, as it had been many times before by other courts, as well as by the land department of the United States, that mere indications, however strong, are not sufficient to answer the requirements of the statute of the United States relating to placer as well as lode claims, which requires, as one of the essential conditions to the making of a valid location of unappropriated public land of the United States under the mining laws, a discovery of mineral within the limits of the claim. That decision seems to have occasioned surprise among those seeking to acquire from the government lands supposed to contain oil although it was, as was shown in the opinion delivered at the time, in strict accord with the provisions of the statute, and is abundantly supported by the authorities. Davis’ Adm’r v. Weibbold, 139 U. S. 507, 522, 11 Sup. Ct. 628. 35 L. Ed. 238; Dughi v. Harkins, 2 Land Dec. Dep. Int. 721; Cleghorn v. Bird, 4 Land Dec. Dep. Int. 478; Commissioners v. Alexander, 5 Land Dec. Dep. Int. 126; and numerous cases cited in Davis’ Adm’r v. Weibbold. It is a matter of common knowledge that, in consequence of the decision in the case of Nevada-Sierra Oil Co. v. Home Oil Co., strenuous efforts were made by strong and influential organizations to induce congress at its last session to dispense with the necessity of an actual discovery of oil as a basis of acquiring such lands under the placer mining laws, and to provide that certain indications of the existence of such mineral should be sufficient evidence of the mineral character of the land; but all of these efforts wore unsuccessful, and the law remains the same in that respect as before. Applying the law to the facts as made to appear by the pleadings in the present case, it is clear that, the location of the lands in controversy by the predecessors in interest of the defendants in October, 1899, under the
The statute in question is a plain standing offer on the part of the government to exchange any of its land lhat is vacant and open to settlement for a like quantity of similar land within a forest reservation, for which it had previously issued a patent, or to which an unperfected bona ñde claim had been acquired, provided that in cases of unperfected claims the requirements of the laws respecting settlement, residence, improvements, and so forth, are complied with on the new claims, credit being allowed for the time spent on the relinquished claims; the owner of or settler on the tract within the reservation, in the event of his acceptance of the offer, being required to relinquish his tract to the government, in consideration of which he is given the right to select in lieu thereof a tract of vacant land open to settlement, not exceeding in area the tract covered by his patent or claim, as the case may be, with the further provision that no charge shall be made for making the entry of record, or issuing the patent to cover the tract selected. Prom these provisions it is clear that, in such cases of exchange, title is to be given by the government for title received, and in cases of unperfected claims the claimant is to occupy a precisely similar status in respect to the tract selected that he did regarding that relinquished. In all cases the land authorized to be selected in lieu of that relinquished is required to be vacant and open to settlement. When? Manifestly, at the date of selection. It is upon its then character and condition that the selector has the right, and is bound, to act. Before making his selectibn he must inform himself of the character and condition of the traed desired, but it would be wholly unreasonable to say that he is required to make a selection based upon what may be disclosed in that regard in the future. The right to select is by the statute given to the party invited by the government to make the exchange, without other condition than that
“Under an act of congress which authorized it to be done, Uthe, by directing his land warrant to be located upon this land and delivering up the warrant, and by the proceedings of the land office upon that location, which resulted in issuing a patent to him for the land, had acquired an equitable title to the land, or what may be called a vested interest in it, prior to the passage of the swamp land act by congress. He had done what by the act of congress of 1817 (9 Stat. 123), entitled him to the land on which his warrant was located. Ho had delivered up the land warrant, — -the evidence of his claim against the government. He had received in exchange for it the certificate of the receiver and register of the land office, and these entitled him lo a patent after such delay as was necessary to ascertain the fact that the land had been granted to no one else, and that all his proceedings wore regular, which facts were to bo determined by the commissioner of the general land office, and which were determined in his favor. He had paid for this land. He had paid hy the delivering np and cancellation of his land warrant. He had received the certificate of the register and receiver of the land office at Chicago, which, hy the laws of nearly all the Western states,, have been made equivalent to the title to the land in actions of ejectment, though tlie strict legal title remained in the Untied States at the date of the passage of the swamp land act. Are we to suppose that congress intended to give to the state of Illinois the land which it had already, by a contract for which value was received, promised to convey to Dtlie? As the grant to the states of the swamp land within their jurisdiction was a gratuity, although accompanied with a trust for the r'eclamaiion of said land, it is not easily to' be supposed that congress intended to be thus generous at the expense of parties who had vested rights in any of th.e lands so donated, derived from the United States.”
It is true that in the case just cited a certificate had been issued by the register and receiver of the local land office in lieu of the land warrant surrendered, while here nothing more was done by the register and receiver of the local land office than to receive the deed for the relinquished land, together with the certificate of title thereto, and to accept and file the selection of the tract selected in lieu thereof. But in the present case nothing more was required to be done. The statute makes no provision for the issuance of any certificate by the register and receiver to the selector, or for the issuance to him of any other instrument than a patent. It is well settled that in purchases of land from the government, where one has paid the full purchase price and done all that he is called upon to do hy the terms of the statute, he has acquired an equitable title to the property bought. In Benson Mining & Smelting Co. v. Alta Mining & Smelting Co., 145 U. S. 428, 12 Sup. Ct. 877, 36 L. Ed. 762, it was sought to defeat the title of a mining claimant to his mine, after he had paid the complete purchase price therefor and received a certificate of purchase, hy showing that he had not complied with the terms of the United States statute which requires that not less than $100 worth of labor he performed or 'improvements made each year “until a patent has been issued therefor.” The supreme court, in denying the soundness of the proposition, said:
“It is a general mile in respect to the sales of real estate that when a purchaser has paid the full purchase price his equitable rights are complete, and*576 there is nothing left in the vendor hut the naked legal title, which he holds in trust for the purchaser. And this general rule of real-estate law has been repeatedly applied by this court to the administration of the affairs of the land department of the government; and the ruling has been uniform that whenever, in cash sales, the price has been paid, or, in other cases, all the conditions of entry performed, the full equitable title has passed, and only the naked legal title remains in the government, in trust for the other party, in whom are vested all the rights and obligations of ownership.”
To the same effect are Simonds v. Wagner, 101 U. S. 261, 25 L. Ed. 910; U. S. v. Hughes, 11 How. 568, 13 L. Ed. 809; Wirth v. Branson, 98 U. S. 118, 25 L. Ed. 86; Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. 95, 29 L. Ed. 423; Colorado Coal & Iron Co. v. U. S., 123 U. S. 307, 8 Sup. Ct. 131, 31 L. Ed. 182; Davis’ Adm’r v. Weibbold, 139 U. S. 524,11 Sup. Ct. 628, 35 L. Ed. 238. In Re Jack, 7 Land Dec. Dep. Int. 570, and Bea v. Stephenson, 15 Land Dec. Dep. Int. 37, it was held that when a homesteader has completed his entry and made final proof, and final certificate has issued, a subsequent mineral discovery cannot affect his title, and a hearing regarding the same will not be ordered. In Reid v. Lavalle, 26 Land Dec. Dep. Int. 100, it was said by the secretary:
“The only questions properly before the land office in this proceeding are those which relate to the actual known character of the land in controversy at the date of cash entry No. 269. If the land was then known to be valuable chiefly for its mineral contents, it was not subject to such entry. * * * The defendant’s representations could not relieve the land department of its duty to determine the actual known character of the land at the date of the cash entiy. * * * If the land was not mineral in character when Lavelle made his cash entry therefor, and if he is shown to have possessed the necessary qualifications, and to have fully complied with the homestead laws up to that time, his entry must stand.”
So in respect to school lands. Under the school-land grant from congress it has been many times held that, unless they contain known mineral at the date of the survey, title thereto passes to the state, and subsequent discovery of mineral in profitable quantities could not devest the state of its title. Saunders v. Mining Co., 125 Cal. 159, 57 Pac. 656; Ivanhoe Min. Co. v. Keystone Consol. Min. Co., 102 U. S. 175, 26 L. Ed. 126; In re Miner, 9 Land Dec. Dep. Int. 408; Barringer & A. Mines & M. 527. See, also, Shaw v. Kellogg, 170 U. S. 312, 18 Sup. Ct. 632, 42 L. Ed. 1052. And in respect to state lieu selections the law is settled that the rights of the parties claiming them are to be determined by the facts as known to exist at the date of the selection. McCreery v. Haskell, 119 U. S. 327, 7 Sup. Ct. 176, 30 L. Ed. 408; Howell v. Slauson, 83 Cal. 546, 23 Pac. 692; Milling Co. v. Morgan, 106 Cal. 416, 39 Pac. 802. In Wirth v. Branson, 98 U. S. 118, 25 L. Ed. 86, the supreme court declared:
“A party who has complied with, all the terms and conditions which entitle him to a patent for a particular tract of land acquires a vested interest therein, and is to be regarded as the equitable owner thereof while his entry or location remains in full force and effect.”
See, also, Whitney v. Morrow, 112 U. S. 695, 5 Sup. Ct. 333, 28 L. Ed. 871; Edwards v. Elliott, 21 Wall. 539, 22 L. Ed. 488; Cornelius v. Kessel, 128 U. S. 456, 9 Sup. Ct. 122, 32 L. Ed. 482, in which latter tase the court said:
*577 “The power of supervision possessed by the commissioner of the general land office over the acts of the register and receiver of the local land offices in the disposition of the public lands undoubtedly authorizes him to correct and annul entries of land allowed by them where the lands are not subject to entry, or the parties do not possess the qualifications required, or have previously entered all that the law permits. The exercise of this power is necessary to the due administration of the land department If an investigation of the validity of such entries were required in the courts of law before tliey could be canceled, the necessary delays attending the examination would greatly impair, if not destroy, the efficiency of the department. But the power of supervision and correction is not an unlimited or an arbitrary power. It can be exerted only when the entry was made upon false testimony or without authority of law. It cannot he exercised so as to deprive any person of land lawfully entered and paid for. By such entry and payment the purchaser secures a rested Interest In the property, and a right to a patent therefor, and can no more be deprived of It by order of the commissioner than he can be deprived by such order of any other legally acquired 'property. Any attempted deprivation in that way of such interest will be corrected whenever the matter is presented so that the judiciary can act upon it.”
The decisions oí the land department are to the same effect. See In re Abercrombie, 6 Land Dec. Dep. Int. 693; Harnish v. Wallace, 13 Land Dec. Dep. Int. 108; In re Miner, 9 Land Dec. Dep. Int. 408; In re Laney, Id. 83; In re Plymouth Lode, 12 Land Dec. dep. Int. 513.
As has been said, the question that remains open to inquiry by the land department up to the issuance of patent is whether or not the selected land was vacant and open to settlement at the time of its selection. Vacant public lands are open to settlement under the laws relating to that subject when they contain no “known salines or mines” (Act -8ept. 4,1841; 5 Slat. 455; Rev. St. § 2258), whether of gold, silver, petroleum, or any other mineral. The law as to what constitutes a “known mine,” under the statutes relating to the settlement of public lands, is also thoroughly well established. In the case of Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. 95, 29 L. Ed. 423, the legislation on the subject was reviewed at length. It was there held that no title from the United States to land known at the time of sale to be valuable for its minerals, of gold, silver, cinnabar, or copper, can be obtained under the pre-emption or homestead laws, or the town-site laws, or in any other way than as prescribed by the laws especially authorizing the sale of such lands, except in the states of'Michigan. Wisconsin. Minnesota, Missouri, and Kansas. The court say (page 404, 135 U. S., page 100, 6 Sup. Ct., and page 426, 29 L. Ed.):
“We say ‘land known at the time to he valuable for its minerals.’ as there are vast tracts of public land in which minerals of different kinds are found, but not in such quantity as to justify expenditures in the effort to extract them. It is not to such lands that the term ‘mineral,’ in the sense of the statute, is applicable. * * * We also say lands ‘known’ at the time of their sale to be thus valuable, in order to avoid any possible conclusion against the validity of titles which may he issued for other kinds of Land, in which, years afterwards, rich deposits of minerals may be discovered. It is quite possible that lands settled upon as suitable only for agricultural purposes, entered by the settler and patented by the government under 1he pre-emption laws, may he found, years after patent has been issued, to contain valuable minerals. Indeed, this has often happened. We therefore use the term ‘known’ to be valuable at the time of sale, to prevent any doubt being cast upon titles to lands afterwards found to be different in their mineral character from what was supposed when the entry of them was made and the patent issued.”
“That where any tracts embracing coal beds or coal fields constituting portions of the public domain, and which as ‘mines’ are excluded from the preemption act of 1841 (5 Stat. 455), and which under past legislation are not liable to ordinary private entry, it shall and may be lawful for the president to cause such tracts, in suitable legal subdivisions, to be offered at public sale to the highest bidder, after public notice of not less than three months, at a minimum price of twenty dollars per acre; and any lands not thus disposed of shall thereafter be liable to private entry at said minimum,” — the court said: “We hold, therefore, that to constitute the exemption contemplated by the pre-emption act, under the head of ‘known mines,’ there should be upon the land ascertained coal deposits of such an extent and value as to make the land more valuable to be worked as a coal mine under the conditions existing at the time than for merely agricultural purposes. The cireuinstance that there are surface indications of the existence of veins of coal does not constitute a mine. It does not even prove that the land will ever be, under any conditions, sufficiently valuable on account of its coal deposits to be worked as a mine*. A change in the conditions occurring subsequently to the sale, whereby new discoveries are made, or by means whereof it may become profitable to work the veins as mines, cannot affect the title as it passed at the time of the sale. The question must be determined according to the facts in existence at the time of the sale. If upon the premises at that time there were not' actual ‘known mines’ capable of being profitably worked for their product, so as to make the land more valuable for mining than for agriculture, a title to them acquired under the pre-emption act cannot be successfully assailed.”
See, also, Davis’ Adm’r v. Weibbold, 139 U. S. 524, 11 Sup. Ct. 628, 35 L. Ed. 238; Railroad Co. v. Valentine, 11 Land Dec. Dep. Int. 238.
Nor is it of any importance, in view of the provisions of tbe statute under consideration, that tbe selection bere in question may bave been made in tbe bope of finding oil in the land. Tbe statute conferring tbe right of 'selection does not make that right in any way depend upon tbe intent with which it is made. Mining Co. v. Reynolds, 124 U. S. 374, 8 Sup. Ct. 598, 31 L. Ed. 466; Sullivan v. Mining Co., 143 U. S. 431, 12 Sup. Ct. 555, 36 L. Ed. 214. Should doubt exist as to tbe character of any of tbe public lands standing upon tbe books of tbe local land offices as open to settlement, to which no valid right has attached, it is undoubtedly within tbe power of tbe officers of tbe general land office to withdraw them from settlement or sale pending an inquiry as to their true character. And such action, it is understood, has recently been taken by tbe land department in respect to some of tbe public lands in California, whose surface indications and tbe character of adjacent lands tended to show that they are oil lands. Lands so withdrawn are, of course, not open to settlement, and there
The case as presented showing that the complainant has an equity in the land in controversy which may ripen into a perfect legal title, it is entitled to the interposition of a court of equity to protect that right as against trespassers who confessedly threaten to enter thereon and to despoil the property of its chief, if not its only, value. In the case of Railroad Co. v. Hussey, 15 U. S. App. 391, 9 C. C. A. 463, 61 Fed. 231, there was a grant to the railroad company by congress of certain alternate odd numbered sections of public land, not mineral, to distinguish which from lands retained by the government a survey was essential; and in its absence the defendant, Hussey, without any right, entered within the grant limits and proceeded to cut down, destroy, and carry away a large amount of timber standing and growing upon what, when surveyed, would be odd-numbered sections, as well as_ what would, upon survey, prove to be even-numbered sections, of the lands within the grant limits. One of the contentions on the part of the railroad company in that case was that prior to the survey the railroad company and the government occupied the position of tenants in common of all of the lands situated within the grant limits. While denying the correctness of that position, the circuit court of appeals for this circuit, said:
“But, because it cannot be properly held that the complainant and the United States are. prior to its survey, tenants in common ol‘ the entire body of lands within the limits of the grant to the railroad company, does it necessarily follow that a trespasser may with impunity go upon the lands and cut down and destroy or carry away the timber growing upon them? The bill shows that the lands in question are valuable only for the timber that grows upon them. To cut down, destroy, or carry away tlie timber thereon is therefore, essentially, to destroy and take away the very substance of the estate. That an injunction will be awarded, in behalf of one showing the necessary interest in the property, to prevent such waste and destruction, is thoroughly settled. Erhardt v. Boaro, 113 U. S. 537, 5 Sup. Ct. 565, 28 L. Ed. 1116. It is apparent that the complainant has no adequate remedy at law. It cannot maintain an action for damages for the cutting of any tree or tree? upon the lands in question, or any 'other action at law, for the reason that it would be essential to the maintenance of such an action for the plaintiff to show that the particular tree or trees for the cutting of which damages were claimed, or other relief was asked, came from the land of the plaintiff; and this, as has been seen, is impossible to be shown in advance of the government survey. Yet the bill shows that the defendant, without any right or authority whatever, — in other words, as a mere trespasser, — has entered upon the body of unsurveyed lands within the limits of the grant to the complainant, and for purposes of speculation and sale has commenced to cut down the timber thereon, and to manufacture the same Into saw logs, lumber, etc., and has so cut 850,000 feet of saw log's, and will, unless restrained, continue those illegal acts, and thus remove the very thing which constitutes the*580 chief, if not the only, valué of the lands. Every tree already felled by the defendant, and every tree intended to be cut. by him, in the prosecution of his undertaking, necessarily impairs the value of the complainant’s interest in its grant; ■ for .the condition of the lands within the grant limits necessarily renders it uncertain and impossible to ascertain how many of such trees have been or will be cut from the lands belonging to the complainant. This very uncertainty would seem to vest in such grantees the right to protect the whole as against a mere trespasser and wrongdoer. .* * * The bill in the present case alleges that the acts complained of are committed by the defendant upon what, when surveyed, will be odd-numbered sections, as well as what will be even-numbered sections, of the lands within the grant limits. The case is a novel one, it must be admitted; but where so great a wrong is being perpetrated, as must be taken to be true for the purposes of the present decision, and the party seeking to prevent the wrong has no adequate remedy at law, equity, we think, will afford the remedy. '“Ubi jus, ibi remedium,’ is the maxim which forms the root of all equitable decisions; and, responding to the objection that certain orders issued in the case of Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co. (C. C.) 54 Fed. 746, 751, were without precedent, the court said: ‘Every just order or rule known to equity courts was born of some emergency, to meet some new conditions, and was therefore, in its time, without a precedent. If based on sound principles, and beneficent results follow their enforcement, affording necessary relief to the one party without imposing illegal burdens on the other, new remedies and unprecedented orders are not unwelcome aids to the chancellor to meet the constantly varying demands for equitable relief.’ ”
It results from wliat has been said that, until it shall be determined by the land department that the tract of land in controversy was not vacant and open to settlement at the time of its selection by the predecessor in interest of the complainant, an equity in that tract exists in the complainant, which a court of equity should protect against such acts as are here threatened and complained of. Accordingly a decree will be entered in favor of the complainant, with a provision, however, to the effect that should the land department of the government, at any time prior to the issuance of a patent for the selected tract, determine that the land was not vacant and open to settlement at the time of its selection, the operation of the decree shall thereupon cease.
