United States v. Kern River Co.

264 F. 412 | 9th Cir. | 1920

RUDKIN, District Judge

(after stating the facts as above). [1] From the foregoing statement it seems quite apparent that the appellees are operating and maintaining a canal used solely for the purpose of generating, manufacturing, and distributing electric power, over a public forest reserve of the United States, without obtaining the necessary permit from the Secretary of the Interior, and without authority of law. We say this is quite apparent, because under the original act of 1891 the right of way could only be obtained for purposes of irrigation, and under the amendment of 1898 the right was not extended so as to include general power purposes; for whatever construction the words “may be used for purposes of a public nature” in the latter act might receive, if standing alone, these general words are limited and qualified by the specific provision “or for the development of power, as subsidiary to the main purpose of irrigation,” so that it is entirely manifest that a right of way for a canal for the development of power can only be obtained under the amendment of 1898, when such development is subsidiary to the main purpose of irrigation, and no such case is presented here. Has, then, the government no standing in a court of equity to prevent such usurpation. The appellees claim not, first, because a suit of this nature will not lie without express legislative authority therefor; second, because the suit is barred by section 8 of the Act of March 3, 1891 (Comp. St. §§ 4992, 3114); and, lastly, because this court must accept the finding of the court below that the approval of the maps and location for the canal were not obtained through fraud or mistake.

[2] 1. In answer to the first objection it is only necessary to say that this is not a suit to declare a forfeiture of a land grant for breach of condition, but the ordinary suit to set aside the approval of the Secretary of the Interior on the ground of fraud and mistake, like the familiar suits prosecuted every day to set aside patents obtained by similar means. As said by the Supreme Court in Noble v. Union River Logging Co., 147 U. S. 165, 13 Sup. Ct. 271, 37 L. Ed. 123, in reference to a grant of a right of way for railway purposes:

"The railroad company became at once vested with the right of property in these lands, of which they can only be deprived by proceedings taken directly for that purpose. If it were made to appear that the right of way had been obtained by fraud, a bill would doubtless lie by the United States for the cancellation and annulment of an approval thus obtained.”

There is another ground upon which the jurisdiction of a court of equity may perhaps be sustained. If we should assume that the appel-lees acquired a right of way for a canal for irrigating purposes and for the development of power subsidiary thereto, an injunction would seem to be an appropriate remedy to prevent the continuing and threatened use of the right of way thus obtained for other and different purposes and for purposes not authorized by law.

[3, 4] 2. Nor is the suit barred'by the statute of limitations. The statute upon which the appellees rely provides:

“That suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the iDassage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents.” Gomp. St. § 5114.

The term “patent,” when applied to a grant of public lands, has a well-defined meaning. Thus section 458 of the Revised Statutes (Comp. St. § 705) provides:

“All patents issuing from the General Land Office shall be issued in the name of the United States, and be signed by the President, and countersigned by the Recorder of the General Land Office; and shall be recorded in the office, in books to be kept for the purpose.”

It is a well-established rule that statutes of limitations do not run against the sovereign, in the absence of some express statutory provision to the contrary, and if the statute is made applicable to a class of suits only it will not be extended to other cases by implication. It was well known to Congress that grants of public lands are not always made by patent. Indeed, the grant of the right of way in question made by the same act is of that character. And had Congress intended that the bar of the statute should apply, not only to patents, but to all legislative grants, it would have so provided in express terms. Again, if this be treated merely as a suit to restrain the unauthorized use or occupation of the forest reserve, the statute can have no application.

[5, 6] 3. The rule invoked by the appellees that an appellate court will not disturb the findings of the trial court on disputed questions of fact, unless it is clearly manifest that there is no substantial evidence to support them, has little or no application to a case submitted on bill and answer and an agreed statement of facts. Furthermore, there is little room for controversy over the facts in this case. It is apparent that the power company was attempting throughout to obtain a permanent right of way for a canal to be used for power purposes, under an act of Congress which granted no such right. When the first application was made, the Commissioner of the General Rand Office called attention to the two acts, the one granting a right of way for irrigation purposes, and the other for power purposes, and ruled that an application based on the two acts would not be approved. To overcome this objection, doubtless, the proper officers of the power company certified “that the right of way for said canal was desired solely for the purposes prescribed by the aforesaid acts,” referring back to the acts of 1891 and 1898. This certificate was essentially and un-qualifiedly false. When the amended application was filed, attention was again called to the fact that the application could not be made under the act of March 3, 1891, unless the canal as shown by the amended survey was desired for the purposes of irrigation only. To overcome this objection the officers of the power company again certified :

“That the map has been prepared to be filed for the approval of the Secretary of the Interior in order that the company might obtain the benefits of sections 18 to 21, inclusive, of the act of Congress approved March 3, 1891. entitled ‘An act to repeal timber culture laws, and for other purposes,’ and section 2 of the act of Congress approved May 11, 1898, and that the right of way described on said map was desired for public purposes.”

This certificate, while somewhat ambiguous, was doubtless intended to and did convey to the department the impression that the right of way was authorized by the acts referred to, and was likewise false.

[7] For these reasons, the charge of fraud, in our opinion, is fully sustained'; but, if we should accept the appellees’ view of the case, and find that the approval of the Secretary was given with full knowledge of all the facts, it would not avail them, because in that event the Secretary simply exceeded his authority, and the validity of his approval may well be challenged in a suit of this kind. Thus, in United States v. Poland, 251 U. S. 221, 40 Sup. Ct. 127, 64 L. Ed., decided January 5, 1920, the Supreme Court held that patents issued for more than 160 acres in a single body in the territory of Alaska under soldiers’ additional homestead rights, were void, notwithstanding there was no fraud and the patents issued with full knowledge of all the facts.

For the foregoing reasons, wc are of opinion that the court below erred, and that the decree should be reversed, with instructions to enter a decYee in favor of the United States, canceling the orders approving the maps and location for the right of way, and enjoining the appellees from further maintaining their canal on the forest reserve. The operation of the injunction should be suspended for a reasonable time, however, to enable the appellees to make application to the proper department for such permit or right as is authorized by law.