231 F. 525 | S.D. Cal. | 1916
This is a suit brought by the assignee of the locators of a placer claim upon supposedly public lands to quiet the title thereto, cancel a patent issued by the state of California to defendants’ grantor, and for an accounting for gas and petroleum extracted by defendants. The lands affected are very valuable oil properties situate in the Fullerton oil fields. Defendants have moved to dismiss.
Originally the land was a part of the public domain, and was in 1868 listed, and thereby conveyed, to the state of California, as land in lieu of a certain thirty-sixth section given to the state under general grant for school purposes. The acts of Congress specially providing for, or relating to, such grant and listing to the state are indicated in the margin.
Without going into 'the details of the matters set out in the bill of complaint, it may be said that plaintiff, whose assignors made their entry, location, and discovery on the land in question in 1913, complains that the land in 1868, at the time of its listing to the state, was mineral land, and was known to be such by the applicant therefor and
The principal contention in the case is that, as mineral lands were reserved from grant to the state, either as primary or as lieu lands, the listing and grant to the state of such mineral lands, known to be mineral at the time both by the applicant therefor and by the United States surveyor general for the slate, constituted such a fraud on the government so gross and palpable as to render absolutely void the conveyance thus sought to be effectuated.
I3ut plaintiff, recognizing the force of the Burke Case, contends that the judgment of the Land Department was absolutely void under the decisions in Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. 1228, 31 L. Ed. 844, and Sherman v. Buick, 93 U. S. 209, 23 L. Ed. 849. An examination discloses, however, that the land in both those cases was not subject to the jurisdiction of the Land Department at the time of its attempted disposition thereby; it had already passed out of the government and was owned by private parties; the asserted jurisdiction to deal with it was wanting, and in consequence, that fact being shown, any judgment rendered in virtue thereof was absolutely without support and void. The case is essentially different, however, when a jurisdiction does exist and a judgment within the competency of the tribunal is rendered. In such an event, mere error, however gross, and fraud, howsoever induced, cannot suffice to convert the proceeding into an absolute nullity; the judgment is still an adjudication entitled to respect until set aside by direct attack in some manner recognized by the law. Noble v. Union River Logging Co., 147 U. S. 165, 13 Sup. Ct. 271, 37 L. Ed. 123. Since the Burke Case, supra, discussion as to the right of one in plaintiff’s situation to have such an adjudication set aside is completely foreclosed.
The statute providing for lieu land selections (Act Feb. 26, 1859, 11 Stats. at Large, 385) makes provision for the listing of lieu lands to the state in cases wherein the sixteenth or thirty-sixth sections have been pre-empted and also—
'“to compensate deficiencies for school purposes where said ^sections 16 or 36 are fractional in quantity or where one or both are wanting, by reason of the township being fractional, or from any natural cause whatever.”
There is no allegation that the township in which the base lands above referred to were situate was not fractional, and in view of the allegation that the portion of the thirty-sixth section referred to in the complaint was in the'Pacific Ocean, it is perfectly apparent that the section was either fractional or was entirely wanting; consequently the township must have been fractional. In either event, ample justification for the listing of the land in controversy as lieu land would have existed. In addition, in this, as in the matters referred to hereinabove, as to plaintiff, the judgment of the Land Department as to the necessity for a lieu land selection must be held conclusive.
In so far as these facts merely serve to emphasize and aggravate Shanklin’s fraud as hereinabove referred to, they do not suffice to change the legal situation confronting plaintiff. In this connection, however, plaintiff contends that, in virtue of section 452 of the Revised Statutes (Comp. St. 1913, § 698), the conveyance to Shanklin, he being at the lime United States surveyor general for California, was ipso facto null and void. The section relied upon reads as follows:
“Tlie officers, clerks and employes In the General Land Office are prohibited from directly or Indirectly purchasing or becoming interested in the purchase of any of the public lands; and any person who violates this section shall forthwith be removed from his office.”
It is not clear that the section refers at all to the surveyor general for a state; there may he some doubt as to whether such officer is an employé “in the General Rand Office.” Passing that, however, neither that section, nor any other to which my attention has been called, purports to render void any purchase made under the interdicted circumstances. The only penalty prescribed is removal from office. The conveyance to Shanklin came from the state of California and not from the government, and the court should, I think, particularly as against third persons, be slow to adjudge such a conveyance absolutely void. Patents, either of state or federal origin, ought not to rest upon such an insecure basis.
The motions to dismiss are granted.