29 F. 830 | U.S. Cir. Ct. | 1887
This action is brought to recover the possession of the W. I of section 21, in township 36 S., of range 14 E. of the Wallamet meridian.
It is alleged in the complaint that the plaintiff is the owner in tee of the promises, and is entitled to the possession thereof, which the defendant wrongfully withholds from him, to his damage $1,000. And, by way of giving the court jurisdiction of an action between parties who do not appear to be citizens of different states, it is further alleged that the plaintiff derives title to the premises under the act of congress of July 2, 1864, entitled “An act granting lands to the state of Oregon to aid in the construction of a military road from Eugene to the eastern boundary of said state;” that the defendant claims to hold said premises under the act of congress of March 12, 1860, entitled “An act to extend the provisions of an act to enable the state of Arkansas and other stales to reclaim the swamp lands witldn their limits, to Minnesota and Oregon, and for other purposes,” whereby the question arises through which of these acts the title of the land passed from the United States; and that the same exceeds in value the sum of $500.
In his answer the defendant denies the allegations of the complaint concerning the ownership and right to the possession of the promises, and alleges that he is the owner of and entitled to the possession of the same; which allegations are controverted by the replication.
The case was tried by the court without the intervention of a jury.
The evidence given on the trial consists of certain documents admitted, under stipulation, for their legal effect, and certain oral testimony concerning the value of the use and occupation of the premises, and of a certain fence and ditch which the defendant claims to have constructed on the promises, and also on the question of whether the land is in fact swamp land or not, which oral evidence was received subject to objections for incompetency.
The material facts on which the plaintiff founds.his claim are these:
On July 2, 1864, congress, for the purpose of aiding “in the construc
By the act of June 18, 1874, (18 St. 80,) it is, in effect, recited that congress had “granted,” certain lands to the state of Oregon “to aid in the construction of certain military wagon roads” therein, and that there is no law for the issue of “formal patents” therefor; and in effect provides that whenever it appears “from the certificate of the governor” as provided in said acts, that any of said roads has been “constructed and completed,” a patent shall issue to the state for said lands, or to any corpora
The defendant claims under the act of congress of March 12,1860, extending the swamp-land act of 1850 over Oregon; and the act of the state legislature of October 26, 1870, (Soss. Laws, 54,) providing lor the selection and sale of swamp land “belonging” to the state. This act provides for the selection of such lands by the agents of the state, and the sale of the same in unlimited quantities, at not less than one dollar per acre, the purchaser to pay 20 per centum of the price within 90 days after the selection is completed, and the balance on proof that the land “has been drained, or otherwise made fit for cultivation;” and, if such payment and proof of reclamation are not made within 10 years from the time of the first payment, the land is to revert to the state. It is declared in the act “that all swamp land which has been successfully cultivated in either grass, the cereals, or vegetables for three years shall be considered as fully reclaimed.”
The premises are situated east of the Cascade mountains, on Sprague river, in Lake county. In 1872 the defendant settled on the adjoining section 22, and on May 11, 1877, purchased the E. } and the S. W. & of section 21, of the state land commissioners, under the swamp-land act, paying 896 thereon, or 20 per centum of the price; and on December 12,1883, paid said commissioners §480, the balance of the purchase price, and obtained a deed from them for said portions of the section. .Between the date of his purchase from the state and the commencement of this action the defendant built a fence and out a ditch across the north side of the section, in connection with section 22, and used the land for pasture, and making hay from the wild grass. The defendant testifies that a half mile of this fence is on the east half of section 21, and one-fourtli of the ditch, and that they arc worth 8100 each. He also testifies that section 21 is more or less overflowed and swampy.
On September 14, 1882, the commissioner of the general land-office submitted to the secretary of the interior for approval a list of lands, numbered 5, “inuring to the state of Oregon” under the swamp-land acts of 1850, and 1860, which included said section 21; and on September 16th said secretary approved the same. On January 4,1883, said commissioner wrote to the governor of the state, informing him that said .section was “erroneously” included in said list 5, the same having been theretofore “certified to the state for the Oregon Central Military Itoad Company, under the act of July 2, 1864, and included in list numbered 2, approved April 12, 1871.” On June 25, 1880, the plaintiff took a lease of the north half of the section for one year from the California & Oregon Land Company for $80.
By the act of March 12, 1860, (12 St. 3,) the swamp-land act of 1850 was extended over Oregon, with a proviso that the selections from the then surveyed lands shall he made within two years from the adjournment of the legislature at its next session after March 3 2, 1860; and, as to all lands thereafter surveyed, “within two years from such adjournment at the next session, after notice by the secretary of the interior to
The swamp-land act has been said to be a grant in prsssenti. But it does not pass the legal title. Before that- vests in the state, the secretary must ascertain and determine what lands come within its operation, —are “wet and unfit for cultivation,”—and cause a patent to issue to the state therefor. This patent, when issued, may, and doubtless does, relate back to the passage of the act, and in this sense only is it a grant in prsssenti. Until the patent issues, the legal title is in the United States; and the determination of the question, what are and are not swamp lands within the purview of the act, rests with the secretary of the interior, and his decision, unless impeached for fraud or mistake other than an error of judgment, is final. French v. Fyan, 93 U. S. 170.
The case of Railway Co. v. Smith, 9 Wall. 95, only holds that in case the secretary fails to determine the question of whether a subdivision was swamp or not, that the state or its grantee might, when sued for the possession of the same, prove the character of the land, when material to the defense. And in that case the grant to the plaintiff expressly excluded therefrom the lands previously granted to the state by the swampland act of 1850, so that the fact of the lands being swamp was itself sufficient to defeat the plaintiff’s claim, and might therefore be proven by parol, as a defense to its action to recover possession, in the absence of any determination of the question by the secretary of the interior.
But the reservation in this wagon-road grant is only of lands theretofore “reserved to the United States,” which does not include lands otherwise disposed of by the United States. However, the grant for the wagon road being subsequent in point of time to that of the swamp land, the former cannot attach to any land within the operation of the latter, unless the same has reverted to the United States for want of selection within the time limited.
The provision (section 2, Act 1860) limiting the time within which the selections must be made, after notice to the governor “that the surveys have been completed and confirmed,” is not in the original swampland act. It was first made a part thereof, so to speak, when the latter was extended to Oregon. In my judgment, the purport and effect of the section is to devolve on the state the duty of making the selections in the first instance; whereupon it becomes the duty of the secretary to ascertain and determine whether such selections are “wet and unfit for cultivation,” within the meaning and terms of the act. But if the selection is not made within the time prescribed, the grant reverts to the United States. The selection within the time is a condition precedent.
The wagon-road grant was a grant in prsssenti of all the odd-numbered sections on either side of the road, and, as soon as the line of the same was designated, it attached to such sections, and took effect from the date of the act, subject to the condition that the roadpvas completed within the time limited. Shulenberg v. Harriman, 21 Wall. 60. This condition having been long since'duty performed, the grant became absolute in favor of the road company, the grantee of the state. The approval
As has been shown by the terms of the swamp-land act, the fee of any tract of land does not pass to the state until the secretary has ascertained that it comes within its operation, and causes a patent to issue therefor. The official certificate that the land is swamp only gives the state an equity or right to a patent. Such an interest cannot be set up as a defense in this action against the prima facie legal title of the plaintiff. But admitting that the listing of the land as swamp vests the foe in the state, and that the patent thereon is a mere formal matter, which follows 'of course, the listing of section 21 as swamp land in 1882, more than three years after the same was certified to the state under the wagon-road grant, did not change or affect the rights of the parties. Bne-h listing, even if it had been deliberate and. intentional, in the face of the fact that the land had already been duly listed to the state under the wagon-road grant, was simply void. Smith v. Ewing, 28 Fed. Rep. 741. But the truth is, it was a mere mistake,-—-probably a clerical misprision,—-which the department corrected as soon as attention was called to it by the register and receiver of the proper iand-oííico. The power to correct such a mistake is necessarily implied from the power to approvo the selection, and is supported by authority. Carroll v. Safford, 3 How. 460; LeRoy v. Clayton, 2 Sawy. 493; Bell v. Hearne, 19 How. 252. And as the act which constituted the mistake was void, and the right to the land had already been duly ascertained and sot forth, the result would bo the same if it never had been corrected.
The authority to determine to which of the two grants to the state this section 21 properly belonged was vested in the secretary of the interior, generally, by section 441 of the Itcvised Statutes, which gave him supervision—final control—-of the public business relating to the public lands, and specially' and particularly as to the grant of swamp land, by the act making the same. In awarding this section to the wagon-road grant, or rather approving of its selection thereunder, the secretary must, in legal contemplation, have doeided that it was not swam]). The decision, so far as it appears, was duly' made, in the regular course of business, in the administration of the law relating to the subject, and with the evidence contained in the public survey's as to the character of the land before him or within his official reach. The decision that the land belonged to the wagon-road grant was, in legal effect, also a decision that it did not belong to the swamp-land grant. The latter conclusion, under the circumstances, is a necessary element of the former. Nor can this con
The state was the grantee in both these grants. It accepted the land as part .of the wagon-road grant, or allowed its grantee or agent to do so. At least there is no evidence that it ever selected this section under the swamp-land grant, and presented it for certification as part thereof. And while this may have been done, it is morally certain that it rvas not done until after the premises were certified to the grantee of the state under the wagon-road grant, nor until the grant had lapsed, for want of selection, within the time prescribed. The non-action of the state in this matter probably arose from the fact that it was thought best that the land should go to the construction of the wagon road, which was then regarded as a meritorious enterprise. For long after this swampland 'grant was made no interest ivas taken in it, nor was it generally understood that there was any considerable quantity of land in the state to which it was at all applicable. For 10 years the state took no steps to secure any land under it, preferring, as it appears, to make its selections under the grants for the benefit of roads and schools. The fact that some portions of these selections were damp enough to be called swamp was no objection to them, but often a recommendation; and in my judgment, it would have been -well if that policy had bean continued. But, be that as it may, in the meantime this land was formally selected and certified to the state as wagon-road land, with its acquiescence, if not active concurrence, and it is now estopped, as against the plaintiff, to deny that the premises are included in such grant, or to assert that it acquired them under the swamp-land grant. And if the state is so es-topped, só is its grantee, the defendant.
The defendant defends for the whole of the ^V. of section 21, but it does not appear, from his own showing, that he has any claim to the N. -2 thereof. His purchase from the state only includes the E. £ and the S. W. i of the section. But the claim of the defendant to be the owner of any part of the premises on the facts proven must fail on either of the following grounds: (1) At and before the defendant’s purchase from the state under the swamp-land grant, the right of the state thereunder had lapsed and become of no effect. (2) The land was already certified to the grantee of the state under the wagon-road grant by the secretary of the interior, which certification is a final decision of the question as to the character of the land, and the grant under which it properly belonged, by a tribunal having exclusive jurisdiction of the same. (3) The defendant, as the grantee of the state, against the plaintiff, is estopped to assert or maintain that the premises inured to the state under the
In conclusion, I find that the plaintiff is the owner of the land in fee, and entitled to the possession thereof. But no damages can be received for the occupation of the premises under the allegation in tho complaint that the defendant wrongfully withholds the possession of the same-from the plaintiff, to his damage 81,000. An action to recover damages for the wrongful occupation of real property is the equivalent of the eonunon-law of action of trespass for mesne profits. A cause of action for damages for withholding the possession of real property may be-joined with one to recover such possession. But it must bo separately stated, and the statement must contain facts sufficient to support a separate action thereon. Ordinarily, only nominal damages can be recovered oil the ad damnum clause for an ouster, in an action to recover possession of real property. Wythe v. Myers, 3 Sawy. 598; Larned v. Hudson 57 N. Y. 151.
The evidence as to the value of the rents and profits of the land was-admitted on the trial, subject to the objection that the complaint contained no statement of a cause of action therefor. The ruling on this-point makes! it unnecessary to consider the character or value of the improvements put on the land by the defendant. The plaintiff can recover nothing for rents and profits, and therefore there is nothing to set off’ the value of the improvements against. Probably this result is not materially unjust to either party.
In support of my conclusions in this case, I refer generally to Cahn v. Barnes, 7 Sawy. 48, 5 Fed. Rep. 326. The important questions involved herein were considered in that. I have gone carefully over the ground again, in the light of the able and exhaustive argument of counsel for the defendant, but find no cause to change my opinion on the subject.
There must he a finding for tho plaintiff that he is the owner of the premises, and entitled to the possession thereof.