Union Land & Stock Co. v. United States

257 F. 635 | 9th Cir. | 1919

GIRBERT, Circuit Judge

(after stating the facts as above). [1] The appellant contends that the bill should have been dismissed for want of equity, for the reason that it is brought to declare a forfeiture, and cites Horsburg v. Baker, 1 Pet. 232, 236, 7 L. Ed. 125, and Marshall v. Vicksburg, 15 Wall. 146, 149, 21 L. Ed. 121. In the latter case it was said:

“Equity never, under any circumstances, lends its aid to enforce a forfeiture or penalty, or anything in the nature of either.”

But the rule thus stated has not always been adhered to in the absolute form in which it is expressed. Thus in Henderson v. Carbondale Coal & Coke Co., 140 U. S. 25, 11 Sup. Ct. 691, 35 L. Ed. 332, Mr. Justice Brewer said:

“Forfeitures are never favored. Equity always leans against them, and only decrees in their favor when there is full, clear, and strict proof of a legal right thereto.”

The reason for the rule is that forfeitures are regarded as harsh and oppressive, and the rule has been held not to apply to cases in which forfeiture is imposed by statute and where public interests are to be subserved thereby. In Farnsworth v. Minn. & Pac. R. R. Co., 92 U. S. 49, 68 (23 L. Ed. 530), it was said:

“But there can be no leaning of the court against a forfeiture which is intended to secure the construction of a work, in which the public is interested, where compensation cannot be made for the default of the party, nor where the forfeiture is imposed by positive law.”

It is to be added that the Supreme Court has entertained jurisdiction of suits in equity to forfeit land grants in numerous cases, among which may be mentioned United States v. California, etc., Land Co., 148 U. S. 31, 13 Sup. Ct. 458, 37 L. Ed. 354; United States v. Oregon, etc., Railroad, 164 U. S. 526, 17 Sup. Ct. 165, 41 L. Ed. 541; United States v. Tennessee & Coosa Railroad, 176 U. S. 242, 20 Sup. Ct. 370, 44 L. Ed. 452; Oregon & Cal. R. R. v. United States, 238 U. S. 393, 35 Sup. Ct. 908, 59 L. Ed. 1360. It is true that in those cases forfeiture was not the only relief sought. One of them was a suit to quiet title. In others, the aid of equity was sought to declare forfeiture, and to cancel patents or certificates or to obtain injunctive relief. The present case is in itá essential features a suit to quiet title. The relief sought, in addition to forfeiture, is that the appellant be estopped from asserting any right, title, or interest in the lands, and that all title rights therein be reinvested in the appellee. We think the motion to dismiss was properly denied.

[2] It is contended that there is no authority for the prosecution of the suit, and United States v. Washington Improvement & D. Co. (C. C.) 189 Fed. 674, is cited. In that case, in construing a congressional grant for a railway, telegraph, and telephone line through the Colville Indian reservation, with a proviso that the rights therein granted should he forfeited by the grantee unless 25 miles of the railroad should be constructed within two years after the passage of the act, and a further reservation to Congress of power to alter, amend, or repeal the act in whole or in part, Judge Rudkin held that a court of equity had no inherent power to decree a forfeiture of the land grant and that the United States could not maintain a suit to recover the land for breach of a condition subsequent, unless Congress had declared a forfeiture or had given express authority for the institution of the suit.

There are some grounds of distinction between that case and this. That was a case of a special grant to a specific grantee, with a reservation of power in Congress to alter, amend, or repeal the same. Here the grant of rights is a general one. It opens the lands of the United States to the occupation of various and numerous applicants. By a general and permanent statute it provides the steps which they must take to acquire the rights contemplated by the grant. The forfeiture clause is as follows:

“Provided that if any section of said canal or ditch shall not be completed ■within five years after the location of said section the rights herein granted shall be forfeited as to any uncompleted section of said canal, ditch or reservoir, to the extent that the. same is not completed at the date of the forfeiture.”

It is not to be supposed, we think, that Congress intended that the United States should have no remedy for the failure of an applicant to complete his canal, ditch, or reservoir within the time limited, unless Congress intervened and by a special act either declared the right f.orfeited or gave express authority to institute a suit to recover the land.

In United States v. Whitney (C. C.) 176 Fed. 593, Judge Dietrich, in construing the law which is involved here, held that a failure to comply with the requirements of the statute of itself operated to divest the grantee of title and revest it in the government, and that a declaration of forfeiture might be either by act of Congress or by an appropriate judicial proceeding. With that view we agree, and although, aside from the two cases cited, we find no decision directly involving the question here presented, we think the decisions of the Supreme Court, as reviewed in Spokane, etc., Ry. v. Wash. & Gt. Nor. Ry., 219 U. S. 166, 174, 31 Sup. Ct. 182, 184 (55 L. Ed. 159), which establish the doctrine that, where the conditions of the grant are subsequent, “the title cannot be forfeited, except upon proper proceedings by the government, judicial in their character, or an act of Congress competent for that purpose,” are sufficient in their scope to justify the suit here brought at the instance of the Attorney General, which is a proper proceeding by the government, judicial in its character, and appropriate for the purpose of declaring a forfeiture.

[3, 4] The appellant contends that there was no authority in law or equity to hold its rights for cancellation, and in view of the language of section 20 of the act contends that the court was limited in its judgment to declaring a forfeiture of that portion of the reservoir which had not been utilized, and refers to, the fact, recited in the stipulation, that the reservoir mentioned in the hill is one of a series of three, which are all used in connection with each other. It would seem that the appellant’s position is that the decree forfeits the ground occupied by all three reservoirs. There is nothing in the record to show this. The bill alleged that the appellant’s application called for a reservoir site covering approximately 469 acres, with a dam at the outlet 50 feet in height, with a base width of 270 feet, a length on top of 230 feet, and a length at the bottom of 80 feet, calculated to store, when completed, water over the entire acreage of the reservoir. The record does not indicate upon what land the other two reservoirs are located. The decree makes no reference to them. If they are located upon the 469-acre tract, they have been constructed and maintained without authority of law, so far as the record advises us.

We do not agree with counsel for the appellant that section 18 of the Act (Comp. St. § 4934) confers a right independently of the provisions of section 19 (section 4935). Those two sections are obviously to be construed together. Nor do we find merit in the contention that to declare forfeiture it was necessary for the appellee to prove that a dam higher than 23 feet could have been practically used, or that there was sufficient water to have filled a larger reservoir. If the contrary were true, it was for the appellant to show it. It made' no effort to amend its application, so as to justify the construction and maintenance of a dam of 23 feet, and when it was notified and cited to relinquish the reservoir site, or to show cause why judicial proceedings should not be instituted to cancel the grant for the failure to build the same in accordance with the application, it made no showing of cause, and no effort to amend its application.

The decree is affirmed.