26 Wash. 668 | Wash. | 1901
The opinion of the court was delivered by
This was an action brought by the state of Washington to recover from the appellant the possession of a certain tract of land lying in King county. In its complaint the state alleges, in substance, that it is seized in fee, entitled to the possession, and was on the 12th day of March, 1893, in possession, of the land in controversy, and that the apj>ellant, on the date named, without right or title, entered into the possession of the land, ousted the state therefrom, and unlawfully retains possession thereof. The answer is a general denial. At the trial the facts were stipulated, and appear in the findings of fact made by the trial court. These findings are as follows:
“(1) That the north half of the southwest quarter and the northwest quarter of the southwest quarter of section 3, township 25 north, range 4 east, is of the value of twenty thousand dollars, and was selected by Philip H. Lewis, as agent for King county, Washington territory, by filing a list of this and other lands, designated as Hist Ko. 2 of indemnity school selection,’ at the land office at Olympia, Washington territory, May 24, 1870, under an act of congress approved March 2, 1853, and an act of congress approved Pebruary 26, 1859, which said selection was approved by Secretary C. Delano January 27, 1872. (2) March 13, '1893, Anton Johanson made application to enter the land aforesaid under the homestead laws, and at that time made a settlement thereon. He has ever since*670 lived on said land. His application was rejected by the local land office, and subsequently appealed to the commissioner of the general land office, and finally to the secretary of the interior, who, on December 18, 1895, decided adversely to Anton Johansen.”
The sole question presented by the record therefore is, has the state such title to the lands in controversy as will enable it to recover possession from one who has entered into its possession without right % And in considering this question it must be borne in mind that in this state it is not an essential prerequisite to the right of recovery in this form of action that the claimant show a legal title. While the action is in form assimilated to the old action of ejectment, it is in its nature a statutory action, in which the rights of the respective claimants, both legal and equitable, are tried and determined, and the superior title, whether legal or equitable, is allowed to prevail. Bal. Code, §§ 5500, 5508. The state asserts title to the land under the several acts of congress reserving for its use and granting to it certain parts of the public domain for the support of its common schools. The first of these is found in the act creating the territory of Washington. Act Congress, March 2, 1853 (10 St. at Large, 172). By § 20 of that act it is provided:
“That when the lands in said territory shall be surveyed under the direction of the government of the Hnited States, preparatory to bringing the same into market or otherwise disposing thereof, sections numbered sixteen and thirty-six in each township in said territory shall be, and the same are hereby, reserved for the purpose of being applied to common schools in said territory. And in all cases where said sections sixteen and thirty-six, or either or any of them, shall be occupied by actual settlers prior to survey thereof, the county commissioners of'the counties in which said sections so occupied as aforesaid are situated, be, and they are hereby, authorized to locate other lands to an equal*671 amount in sections, or fractional sections, as the case may be, within their respective counties, in lieu of said sections so occupied as aforesaid.”
The next is the act of February 26, 1859 (11 St. at Large, 385). That act was applicable to all of the territories. It enacted that where settlements were made with a view to pre-emption upon the public lands in advance of the surveys which should be found to have been made upon sections 16 or 36, such lands should be subject to the pre-emption claims of the settlers; and that other lands of like quality should be reserved for the use of the common schools, to be selected “in accordance with the principles of adjustment and the provisions of the act of congress of May 20, 1826.” Lastly, by act of February 22, 1889 (25 St. at Large, 676), enabling the people of the territory of Washington to form a constitution and state government, “and to be admitted into the Union on an equal footing with the original states.” By the tenth section of the latter act it is provided:
“That upon the admission of each of said states into the Union, sections numbered sixteen and thirty-six in every township of said proposed states, and where such sections, or any part thereof, have been sold or otherwise disposed of by or under the authority of any act of congress, other lands equivalent thereto, in legal subdivisions of not less than pne quarter section, and as contiguous as may be to the section in lieu of which the same is taken, are hereby granted to said states for the support of common schools, such indemnity lands to be selected within said states in such manner as the legislature may provide, with the approval of the secretary of the interior; provided, that the sixteenth and thirty-sixth sections embraced in permanent reservations for national purposes shall not, at any time, be subject to the grants nor to the indemnity provisions of this act, nor shall any lands embraced in Indian, military, or other reservations of any character be subject to the*672 grants or to the indemnity provisions of this act, until the reservation shall have been extinguished and such lands be restored to, and become a part of, the public domain.”
And by § 4 of the act it was provided that the convention elected to frame a constitution should provide by ordinance irrevocable without the consent of the United States and the people of the state, that provision be made for the establishment and maintenance of a system of public schools free from sectarian control, which should he open to all the children of the state. This requirement was complied with by making the provision a part of the fundamental law. Constitution, art. 26, subd. 4. The contention of the appellant is that the acts of March 2, 1853, and February 26, 1859, did no more than reserve from entry under the land laws of the United States the several tracts of lands therein described, and, as the tenth section of the enabling act, granting lands to the state for the use of its common schools, described only sections 16 and 36 thereof, it was not intended that lands theretofore selected and reserved in lieu of lands lost by reason of settlements made prior to the extension of the surveys, should pass to the state by virtue of the grant contained therein; and hence, whether these selected lieu lands are still reserved from entry by qualified settlers under the existing laws of the United States, or whether they are a part of public domain subject to such entry can make no difference in the result of this case, as the title thereto, and consequent right of control thereof, is still within the United States, and the state has no such title, either legal or equitable, as will enable it to maintain an action to recover possession.
Looking for a moment to the history of these reservations for and grants of the public domain by the general government for the use of the public schools, we find that the practice originated in the earliest times. It is said by the su
“The appropriation of public lands for that object became a fundamental principle, by the ordinance of 1787, which settled terms of compact between the people and states of the Northwestern Territory and the original states, unalterable except by consent. . . . This principle was extended, first, by congressional enactment (1 Stats, at Large, 550, § 6), and afterwards, in 1802, by compact between the United States and Georgia to the Southwestern Territory. The earliest development of this article, in practical legislation, is to be found in the organization of the state of Ohio, and the adjustment of its civil policy, according to the ordinance, preparatory to its admission to the Union. Proposals were made to the inhabitants of theincipient state to become a sovereign community, and to accept certain articles as the conditions of union, which, being accepted, were to become obligatory upon the United States. The first of these articles is ‘that the section No. 16 in every township, and where such section has been sold, granted, or disposed of, other lands equivalent thereto and most contiguous to the same, shall he granted to the inhabitants of such township, for the use of schools.’ ”
That the government has steadily adhered to this policy, an examination of the several acts admitting states into the Union will show. But whether there can be found in the several acts of congress above cited, relating to the territory and state of Washington, a compact between the United States and the state “unalterable except by consent,” by which the state is entitled to a grant of the lands in controversy from the United States, if such grant was not made by the enabling act, may be doubted; yet it cannot be doubted that the purpose of such rese?:;ations was that
We conclude, therefore, that the lands in controversy passed to the state by virtue of the grant contained in the enabling act, and that the judgment appealed from must stand affirmed. It is so ordered.
Deavis, O. J., and Dunbar, Anders and White, JJ., concur.