William J. Pengra v. J.F. Munz
From Lane Co Oregon
Revision as of 18:34, 6 November 2008
WILLIAM J. PENGRA v. J.F.MUNZ.
CIRCUIT COURT, DISTBICT OF OREGON.
FEBRUARY, 14, 1887.
1. CERTIFICATION BY THK SKCKKTABY or THE INTERIOR OF LANDS TO THE STATE, UNDKB SWAMP AND WAGON EOAD GBANTS.— On March 12, 1860 (12Stat3), congress granted the lands that were "wet and unfit for cultivation" within the limits of Oregon to the state, to be selected by the state from the lands thereafter surveyed " within two years from the adjournment of the legislature at the next session after notice by the secretary of the interior to the governor of the state that the surveys have been completed and confirmed," and then certified by the secretary of the interior, if found to come within the operation of the act, and patented to the state, on which the fee shall vest in the state. On July 2, 1864, congress granted to the state, to aid in the construction of a military wagon road from Eugene to the eastern boundary of the state the "alternate sections of the public lands, designated by odd numbers, for three sections in width on each side of said road," as the same may be located. On October 24, 1864, the legislature of the state transferred this grant to the Oregon Central Military Road company, who in due time constructed the road. On December 27, 1886, the survey of section twenty-one, in township thirty-six, of range fourteen east, of the Wallamet meridian, was duly confirmed, of which fact the governor of the state had due notice before the session of the legislature held in 1868. On April 18, 1871, the secretary of the interior, on the recommendation of the commissioner of the general land office, approved the selection of section twenty one, tinder the wagon road grant, and certified the same to said road company as the grantee of the state. On September 16, 1882, said section twenty- one was erroneously included in a list of lands then certified by the secretary to the state, under the swamp land act; and on January 4, 1883, the commissioner, as to said section twenty-one, recalled said certificate, as having been erroneously made, and notified the governor of the state thereof. On May 11, 1877, the defendant purchased the east half and the southwest quarter of section twenty-one, from the state land commissioners, under the act of October 26, 1870, for the sale of swamp lands, paying ninety-six dollars down, and the balance — four hundred and eighty dollars — on December 12, 1883, when he received a deed therefor from said commissioners. Held —
I. The swamp land act is a grant to the state on the condition precedent that the selection of lands thereunder is made within the time limited therein; and on failure to do so, the grant lapsed and became of no effect;
n. The legal title to land selected under the swamp land act does not vest in the state until a patent is issued therefor, which patent, when issued, relates back to the date of the grant; Hi. By section 2 of the act of 1860 the duty is devolved on the state to select the lands it claims under the swamp land act, and present the same for the consideration of the secretary of the interior, whose duty it is to ascertain and determine whether the selections are " wet and unfit for cultivation " within the meaning of said act; and his determination of the question of fact cannot be impeached or questioned elsewhere except in a court of equity for fraud or mistake other than an error of judgment; rv. It was also the duty of the secretary of the interior, by virtue of his general control over the subject of the disposition of the public lands, to ascertain and determine what lands inured to the state or its grantee, the wagon road company, under the wagon road grant of 1864, and when he determined that said section twenty-one inured to the wagon road company under said act, he thereby determined that it did not inure to the state under the swamp land grant;
V. The certification of section twenty-one to the state as swamp land by the secretary was a mere clerical error that the department had a right to correct, as it did; but the section having already been certified to the grantee of the state under the wagon road grant, such second certification was simply void and of no effect;
VI. The state having in effect procured section twenty-one to be certified to the plaintiff ' s grantor under the wagon road grant, the defendant, as the grantee of the state, is estopped, as against the plaintiff, to assert or maintain that said section ever inured to the state under the swamp land grant.
2. DAMAGES FOR WITHHOLDING REAL PBOFERTY. — A cause of action for damages for withholding the possession of real property may be joined with one for the possession of such property, but it must be separately stated, and the statement must contain all the facts necessary to support a separate action thereon.
3. TENANT CANNOT DENY His LANDLORD'S TITLE. — A tenant cannot, during hia term, nor during the possession taken or acquired under the lease, deny his landlord's title. Before DEADY, District Judge.
Mr. George H. Williams, Mr. Cyrus A. Dolph and Mr. Joseph Simon, for the plaintiff.
Mr. William H. Effinger and Mr. Edward Walson., for the defendant.
DEADY, J. This action is brought to recover the possession of the west half of section twenty-one, in township thirty-sixth south, of range "four teen east, of the Wallamet meridian.
It is alleged in the complaint that the plaintiff is the owner in fee of the premises, and is entitled to the possession thereof, which the defendant wrongfully withholds from him, to his damage one thousand dollars. 1887.] Opinion of the Court— Deady, J. And by way232 [Cir. Ct. PENGRA v. MXTNZ.
Opinion of the Court — Deady, J. [February, 1887.] Opinion of the Court— Deady, J. And by way of giving the court jurisdiction of an action between parties who do not appear to be citizens of different states, it is further alleged that the plaintiff derives title to the premises under the act of congress of July 2, 1884, entitled "An act granting lands to the state of Oregon to aid in the construction of a military road from Eugene to the eastern boundary of said state;" that the defendant claims to hold said premises under the act of congress of March 12, 1860, entitled "An act to extend the provisions of an act to enable the state of Arkansas and other states to reclaim the swamp lands within their limits, to Minnesota and Oregon, and for other purposes, " whereby the question arises, through which of these acts, the title to the land passed from the United States; and that the same exceeds in value the sum of five hundred dollars.
In his answer the defendant denies the allegations of the complaint concerning the ownership and right to the possession of the premises, and alleges that he is the owner of and entitled to the possession of the same; which allegations are controverted by the replication. The case was tried by the court without the intervention of a jury.
The evidence given on the trial consists of certain documents admitted under stipulation for their legal effect, and certain oral testimony concerning the value of the use and occupation of the premises and of a certain fence and ditch which the defendant claims to have constructed on the premises, and also on the question of whether the land is in fact swamp land or not, which oral evidence was received subject to objection for incompetency. The material facts on which the plaintiff founds his claim are these :
On July 2, 1864, congress, for the purpose of aiding "in the construction of a military road " from Eugene to the eastern boundary of the state, granted to the state the " alternate sections of the public lands, designated by odd numbers, for three sections in width, on each side of said road," to be disposed of by the legislature for such purpose. ( 13 Stats., 355.)
Opinion of the Court— Deady, J. [February, The act contains a proviso, reserving from its operation " all lands heretofore reserved to the United States by act of congress or other competent authority." Provision is also made in the act for the disposition of the land when and as often as the governor of the state ' ' shall certify to the secretary of the interior that any ten continuous miles " of the road are completed.
The road was to be completed within five years; and if not, the land then indisposed of was to revert to the United States. But by the act of March 3, 1869 (15 Stats., 338), the time for its completion was extended to July 2, 1872. On October 24, 1864 (Ses. L. 37), the state transferred the grant to the Oregon Central Military Road company for the purpose and " upon the condition and limitations" contained in the act of congress making the same.
On September 5, 1886, the township thirty-sixth south, range fourteen west, was surveyed and the survey approved on December 27th of the same year, of which the governor of the state had due notice before the meeting of the legislature in 1868.
On February 16, 1869, the road company filed with the governor of the state a map of the location and line of the road from Eugene to the eastern boundary of the state; and on January 12, 1870, the governor certified that the road as delineated on said map was completed, as required by the act of congress and the state legislature, which map and certificate were filed with the secretary of the interior on or before February 28, 1870.
On April 18, 1871, the commissioner of the general land office recommended for approval, a list of lands, numbered two and described as " lands 'in place ' granted to the state of Oregon " by the acts of congress of 1864 and 1869 aforesaid, " to aid in the construction of a military road "from Eugene to the eastern boundary of the state, which includes the aforesaid section twenty-one, " subject to any valid interfering rights which may have existed at the date of selection;" and on April 21st of the same year the secretary of the interior approved the selection, subject to the same qualification.
On June 2, 1871, the Oregon Central Military Road company conveyed the west half of said section twenty-one to B. J. Pengra, and the east half of the same to the California and Oregon Land company. Afterwards, and before the commencement of this action B. J. Pengra and wife conveyed said west half to the plaintiff herein. It is also specially admitted that the plaintiff has succeeded to and now owns all the estate and interest in said west half, that said company ever owned or held therein, prior to the commencement of this action.
By the act of June 18, 1874 (18 Stats. 80), it is in effect recited that congress had " granted " certain lands to the state of Oregon "to aid in the construction of certain military wagon roads " therein, and that there is no law for the issue of "formal patents " therefor; and in effect provides that whenever it appears " from the certificate of the governor," as provided in said acts, that any of said roads has been "constructed and completed " a patent shall issue to the state for said lands, or to any corporation to whom it may have transferred its interest therein, "as fast as the same shall under said grants be selected and certified." The defendant claims under the act of congress of March 12, 1860, extending the swamp land act of 1850 over Oregon; and the act of the state legislature of October 26, 1870, ( Ses. L. 54), providing for the selection and sale of swamp land " belonging " to the state. This act provides for the selection of such lands by the agents of the state and the sale of the same in unlimited quantities, at not less than one dollar per acre, the purchaser to pay twenty per centum of the price within ninety days after the selection is completed, and the balance on proof that the land "has been drained or otherwise made fit for cultivation;" and if such payment and proof of reclamation are not made within ten years from the time of the first payment, the land is to revert to the State. It is declared in the act "that all swamp land which has been successfully cultivated in either grass, the cereals or vegetables for three years shall be considered as finally reclaimed."
The premises are situated east of the Cascade mountains, on Sprague river, in Lake county. In 1872 the defendant settled on the adjoining section twenty-two, and on May 11, 1877, purchased the east half and the southwest quarter of section twenty-one of the state land commissioners, under the swamp land act, paying ninety-six dollars thereon, or twenty per centum of the price; and on December 12, 1883, paid said commissioners four hundred and eighty dollars, the balance of the purchase price, and obtained a deed from them for said portions of the section.
Between the date of his purchase from the state and the commencement of this action the defendant built a fence and cut a ditch across the north side of the section in connection with section twenty-two, and used the land for pasture and making hay from the wild grass. The defendant testifies that half a mile of this fence is on the east half of section twenty-one, and one-fourth of the ditch, and that they are worth one hundred dollars each. He also testifies that section twenty-one is more or less overflowed and swampy.
On September 14, 1882, the commissioner of the general land office submitted to the secretary of the interior for approval a list of lands numbered five, " inuring to the state of Oregon," under the swamp land acts of 1850-1860, which included said section twenty-one; and on September 16th said secretary approved the same.
On January 4, 1883, said commissioner wrote to the governor of the state, informing him that said section was " erroneously " included in said list five — the same having been theretofore "certified to the state for the Oregon Central Military Road company, under the act of July 2, 1864, and included in list numbered two, approved April 12, 1871." On June 25, 1880, the plaintiff took a lease of the north half of the section for one year from the California and Oregon Land company for eighty dollars.
By the act of March 12, 1860 (12 Stat. 3), the swamp land act of 1850 was extended over Oregon, with a proviso that the selections from the then surveyed lands shall be made within two years from the adjournment of the legislature, at its next session after March 12, 1860; and as to all lands thereafter surveyed, "within two years from such adjournment, at the next session, after notice by the secretary of the interior to the governor of the state that the surveys have been completed and confirmed." The swamp land act has been said to be a grant in. pre- >'(--;(/!. But it does not pass the legal title. Before that vests in the state, the secretary must ascertain and determine what lands come within its operation — are "wet and unfit for cultivation " — and cause a patent to issue to the state therefor. This patent, when issued, may, and doubtless does, relate back to the passage of the act, and in this sense only is it a grant in presenti. Until the patent issues, the legal title is in the United States. And the determination of the question, what are and what are not swamp lands within the purview of the act rests with the secretary of the interior, and his decision, unless impeached for fraud or mistake other than an error of judgment, is final. (French v. Fyan, 93 U. S. 170.) The case of the Bailway Company v. Smith, 9 Wall. 95, only holds that in case the secretary fails to determine the question of whether a subdivision was swamp or not that the state or its grantee might, when sued for the possession of the same, prove the character of the land when material to the defense. And in that case the grant to the plaintiff expressly excluded therefrom the lands previously granted to the state by the swamp land act of 1850, so that the fact of the lands being swamp was itself sufficient to defeat the plaintiff 's claim, and might therefore be proven by parol as a defense to its action to recover possession, in the absence of any determination of the question by the secretary of the interior. But the reservation in this wagon road grant is only of lands theretofore " reserved to the United States," which does not include lands otherwise disposed of by the United States. However, the grant for the wagon road being subsequent in point of time to that of the swamp land, the former cannot attach to any land within the operation of the latter, unless the same has reverted to the United States for want of selection within the time limited.
