Swendig v. Washington Water Power Co., 281 F. 900

Swendig v. Washington Water Power Co.

281 F. 900 | 9th Cir. | 1922

ROSS, Circuit Judge

(after stating the facts as above). Not only did the appellants,.at the time that they settled upon their respective tracts of land, have actual notice of the existence and operation of the appellee’s transmission and telephone lines and incidental patrol road, but they are properly chargeable with actual knowledge of the law under and by authority of which those lines were constructed and were being operated, and of the right of the appellee to continue to operate them until the permission to do so should be revoked by the Secretary of the Interior, for the statute, as will be seen, in terms so declares. It expressly provides that the power conferred upon the Secretary should be exercised “under general regulations to be fixed by him,” of which latter the appellants must be held to have had notice. And the statute itself declares that any permission given by the Secretary under the provisions of the act—

“may be revoked by him or his successor in his discretion, and shall not be held to confer any right, or easement, or interest in, to, or over any public land, reservation, or park.”

*903The question, therefore, we have to decide, is whether the permits under which the appellee constructed and for years maintained its costly plant were legally terminated by the issuance of the government’s patents to the appellants. It is conceded, or seems to be conceded, by counsel for the appellants, that, had the patents in terms excepted the permits that had been theretofore granted by the Secretary of the Interior in pursuance of the act of Congress that has been referred to, the previously existing rights of the appellee would not have been affected.

The government could not grant, by patent or otherwise, what it did not own, nor anything more “than it owned. It owned the fee of the lands upon and over which the appellee’s plant was constructed and was being operated, subject to the terms and conditions expressly declared in the statute and the regulations of the Interior Department under and pursuant to which such plant was constructed and was being operated, of which record evidence all parties, including the appellants, settlers, and patentees, had full notice. The permission granted to the appellee was subject to revocation at any time by the then Secretary of the Interior or his successor; but that was the sole condition to the continuous existence of the rights of way granted, and that reserved power on the part of the grantor was never exercised prior to the issuance of the patents to the appellants, nor since, so far as appears. Whether the rights of way could be revoked by the present or any other successor of the then Secretary is not for consideration in the present case.

We see no force in the contention of the counsel for the appellants that the grants of rights of way to the appellee were mere licenses. The espediente which formed the basis of the claim in De Haro v. United States, 5 Wall. 599, 18 L. Ed. 681, was, as held by the Supreme Court (5 Wall. 622 et seq., 18 L. Ed. 681), nothing more, nor was it intended to be anything more, than a permit to pasture certain land temporarily-until the ejidos were measured; in other words, a mere permissive temporary occupation of land fpr grazing purposes, which the Supreme Court said in its opinion (5 Wall. 627, 18 L. Ed. 681)—

“the Governor was willing should he in writing, instead of by parol, to enable the licensees to enjoy their possession with greater security. And this leads us to a consideration of the law on the subject of licenses.”

The court then proceeded to declare the law, saying

“There is a. clear distinction between the effect of a license to enter lands, uncoupled with an interest, and a grant. A grant passes some estate' of greater or less degree, must he in writing and is irrevocable, unless it contains words of revocation; whereas, a license is a personal privilege, can be conferred by parol or in writing, conveys no estate or inteiest, and is revocante at the pleasure of the party making it. There are also other incidents attaching to a license. It is an authority to do a lawful act, whic-h. without it, would be unlawful, and while it remains unrevoked is a justification for the acts which it authorizes to be done. It ceases with the death of either party, and cannot be transferred or alienated by the licensee, because it is a personal matter, and is limited to the original parties to it. A sale of the lands by the owner instantly works its revocation, and in no sense is it properly descendible to heirs. These are familiar and well-established principles of law, hardly requiring a citation of authorities for their vindica*904tion; but, if they are needed, they will be found collected in the notes to 2 Hare & Wallace’s American Leading Oases, commencing on page 376. We are not aware of any difference between the civil and common law on this subject.”

It would hardly be contended that the appellee could not have at any time transferred or conveyed its power and telephone lines, with all incidental rights pertaining thereto, to some other company or person, or that its rights in the premises would not have passed to its creditors in the event it had been unsuccessful in its business.

We see no merit in the appeal, and accordingly the decree is affirmed.