Osborne v. United States
Decision Date | 24 November 1944 |
Docket Number | No. 10755.,10755. |
Citation | 145 F.2d 892 |
Parties | OSBORNE et al. v. UNITED STATES. |
Court | U.S. Court of Appeals — Ninth Circuit |
Woolf & Shute, of Phoenix, Ariz., for appellants.
Norman M. Littell, Asst. Atty. Gen., Frank E. Flynn, U. S. Atty., and Charles A. Carson, Sp. Atty., Dept. of Justice, all of Phoenix, Ariz., and Vernon L. Wilkinson and S. Billingsley Hill, Attys., Dept. of Justice, both of Washington, D. C., for appellee.
Before DENMAN, STEPHENS, and HEALY, Circuit judges.
The Osbornes, appellants herein, were in possession of a contiguous area of stock grazing land consisting of land owned by them, land leased by them, and land in the Kaibab National Forest under permit (36 Code of Federal Regulations, § 231.9) issued to them. Before the institution of this litigation the national forest land under permit was declared appropriated for military purposes.1 All of such contiguous lands, except certain rights therein which need not here be noticed, were included in one eminent domain proceeding filed in the district court by the government, and the government promptly took possession.
At the trial the Osbornes sought to prove, and by proffered instructions sought to have the jury instructed to award them, damages for the value of their grazing privileges covering the national forest land taken and as well damages for severance. The court rejected such proof and such proffered instructions, and the Osbornes appeal claiming reversible error.
The error claimed does not in any manner refer to the court's rejection of proof but refers solely to the refusal of the court to give a proffered instruction and to the instruction given the jury concerning compensation and variance damages regarding the lands under the grazing permit. The government makes no point upon this score and submits the decision of the appeal upon the jury instruction points.
It was the theory of the government at the trial, and is here, that the grazing privileges were mere licenses, revokable at will without legal right to compel compensation, and that the Osbornes' only recourse is to proceed under the Act of July 9, 1942, C. 500, 56 Stat. 654, 43 U.S.C.A. § 315q. The trial court took this view of the problem. In § 315q it is provided that holders of grazing permits losing the license by government taking shall be paid such amounts "* * * as the head of the department * * * using the lands shall determine to be fair and reasonable * * *" and that "* * * such payments shall be deemed payment in full * * *" and that "* * * nothing herein in the Act contained shall be construed to create any liability not now existing against the United States."2 On the other hand appellants, admitting the statutory right to apply to the Secretary of War for relief under such Act, claim that they acquired property by the issuance to them of the grazing permit and that they may rightly claim just compensation in the condemnation suit. They claim that the Secretary of War by the complaint did submit the fixing of such damages to the court in the instant case. The Osbornes assert that they will be deprived of the benefits of the Fifth Amendment to the Constitution unless they are allowed their day in court upon the issue of compensation. The benefit of that right, say appellants, quoting from United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 279, 87 L.Ed. 336:
Of course, if 56 Stat. 654, 43 U.S.C.A. § 315q, is appellants' exclusive legal remedy, they cannot succeed in their appeal. It would appear that Congress understood the statute to constitute the sole remedy for those having their permit revoked as the Assistant Attorney General recommending its passage said: H.Rep. No. 2290, 77th Cong., 2d Sess. And the remarks of Senator Murdock in regard to the meaning of the proposed Act when it was being considered for enactment (88 Cong.Rec. 5594), and of Representative Robinson in this same regard (88 Cong. Rec. 5652), indicate that the view-point of these members of the Congress corresponds with that of the Assistant Attorney General.
We digress at this juncture to sketch briefly the applicable legal history of stock grazing on the public lands of the United States. In the pioneer or "emigrant" days of western America immense areas of unappropriated and otherwise unused territory were freely used by stockmen for grazing. The government not only refrained from objecting to this practice but in various ways encouraged it and in time this privilege, to use the words of the Supreme Court in Buford v. Houtz, 133 U.S. 320, 326, 10 S.Ct. 305, 307, 33 L. Ed. 618, became "* * * an implied license, growing out of the custom of nearly a hundred years * * *." This license was held to be the basis of various rights as between the licensee and other private individuals but not as between the licensee and the government. The same idea is expressed in Light v. United States, 220 U.S. 523, 535, 31 S.Ct. 485, 487, 55 L.Ed. 570, wherein, after reciting the practice, it is said: The principle expressed in Buford v. Houtz, supra, as reasserted in the Light case and again in Omaechevarria v. Idaho, 246 U.S. 343, 352, 38 S.Ct. 323, 327, 62 L.Ed. 763, is applied to grazing privileges in national forest regulations, for both the Light and the Omaechevarria cases concern grazing within national forests. In the last cited case it is said: See Shannon v. United States, 9 Cir., 160 F. 870, 873; Bell v. Apache Maid Cattle Co., 9 Cir., 94 F.2d 847.3
Later the Congress (Title 43 U.S.C.A. §§ 315 and 315b) authorized the creation of grazing districts upon the public domain but not including areas within national forests and provided for the issuance of permits with a maximum duration of ten years and quoting from § 315b, Title 43, U.S.C.A., declared "* * * but the creation of a grazing district or the issuance of a permit pursuant to the provisions providing therefor shall not create any right, title, interest, or estate in or to the lands."
It may well be added for clarity that no specific provision is made by Congress for the issuance of permits for stock grazing in national forests and that it is assumed in the cases that the general right of grazing on public lands continues after they have been declared within a forest reserve subject to the authorization to the Secretary of Agriculture to make regulations for the preservation and care of the growth in the forests.
Under the last above referred to power a regulation (36 Code of Federal Regulations, § 231.9) was promulgated, providing in general terms that the grazing of stock within national forests is made subject to rules and regulations, which may be established. The next following section prescribes certain terms for grazing, and we quote the applicable part:
It will be noted that the above quoted section of the Regulation contains the following: ...
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