United States v. Fullard-Leo

Decision Date14 October 1946
Docket NumberNo. 10912.,10912.
PartiesUNITED STATES v. FULLARD-LEO et al.
CourtU.S. Court of Appeals — Ninth Circuit

J. Edward Williams, Acting Head, Lands Div., Dept. of justice, and Roger P. Marquis, Atty., Dept. of Justice, both of Washington, D. C., for appellant.

A. G. M. Robertson, of Honolulu, Hawaii (Robertson, Castle & Anthony, of Honolulu, Hawaii, of counsel), for appellees Leslie Fullard-Leo and Ellen Fullard-Leo.

E. H. Beebe, of Honolulu, Hawaii (Smith, Wild, Beebe & Cades, of Honolulu, Hawaii, of counsel), for appellees Mary Ellen Cooper and others.

Before GARRECHT, DENMAN, MATHEWS, STEPHENS, HEALY, BONE, and ORR, Circuit Judges.

Writ of Certiorari Granted October 14, 1946. See 67 S.Ct. 100.

HEALY, Circuit Judge.

This suit was brought by the United States in the federal court for Hawaii to quiet title to Palmyra Island. The case has been twice tried, and the present appeal marks its second appearance in this court. Originally the District Court entered a judgment of dismissal because of insufficiency of the proof to exhibit title in the United States. This court reversed, United States v. Fullard-Leo, 9 Cir., 133 F.2d 743; and on remand the defendants (appellees) were permitted to amend their answers and a second trial was had,1 the outcome of which was a judgment quieting title in the defendants. From this judgment the government appeals. Because of the novelty and importance of some of the questions presented and the division of opinion among the judges when the case was here before, it was this time ordered heard before the court sitting en banc.

The parties stipulated below that the evidence taken on the first trial should be considered on the second. Some additional evidence was introduced, relating for the most part to specific acts of occupancy and efforts to develop the resources of the Island by appellees and their predecessors in interest over scattered intervals of time from 1885 to the late 1930's. This evidence tends to amplify the original showing of actual possession and claim of ownership during the period mentioned. The bulk of the evidence bearing upon the contested issue of title was developed on the original trial; and since the factual background of the case was fully discussed in the majority and dissenting opinions of this court on the first appeal we shall not undertake again to go over that ground. Hence the discussion which follows must be read in light of the former opinions.

On the basis of the record before it the District Court presumed that a grant, now lost, issued to Bent and Wilkinson by which the Hawaiian monarchy parted with its title to the Island. The court further determined that the Land Court had jurisdiction to entertain Cooper's petition to register his title; and that the disclaimer filed by the Territory in the Cooper proceeding was valid and binding not only on it but upon the United States, as was the decree entered by the Land Court in that proceeding. In effect, the decision was that the government failed to sustain its claim of title; that appellees have presumptive title; and that in any event the decree of the Land Court was conclusive of the matter.

Notwithstanding our decision on the former appeal we have authority, if we choose to exercise it, to re-examine the several aspects of the case. "In the absence of statute the phrase, `law of the case,' as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power," Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152. Cf., also, Cochran v. M & M Transp. Co., 1 Cir., 110 F.2d 519, 521; Electrical Research Products v. Gross, 9 Cir., 120 F.2d 301, 308. While the power to re-examine questions previously determined should be sparingly exercised, there are occasions when justice requires that course. We think this is one of those occasions. The view of the case expressed in the minority opinion on the former appeal appears to the court as presently constituted to be the just view and it is thought that it should prevail.

1. The facts are reminiscent of those involved in Carino v. Insular Government of the Philippine Islands, 212 U.S. 449, 29 S.Ct. 334, 336, 53 L.Ed. 594, and they demand a like method of approach. That case was a proceeding on the application of a private claimant for the registration of title to a tract of land in the Philippines. The United States, having taken possession of the property for military purposes, opposed the application. The applicant and his predecessors had been in possession, according to the custom of the country, for more than fifty years and had been recognized as owners by the Igorots. No document of title, however, had issued from the Spanish Crown. It was in substance the contention of the government, and appears to have been the holding of the Philippine courts to which the cause was appealed, that Spain had title to all the land in the Philippines except so far as it saw fit to permit the acquisition of private titles; that there was no prescription against the Crown; and since the United States had succeeded to the Spanish title, of necessity the land was the property of the government.

Notwithstanding the apparent logic of this position the Supreme Court reversed the judgment against the applicant. It observed that the acquisition of the Philippines by America was not for the purpose of acquiring the lands occupied by the inhabitants, but, to the contrary, the Organic Act, 32 Stat. 691, expressly declared that property rights were to be administered for the benefit of the inhabitants. It thought that whatever the law might be upon the various points urged by the United States, "every presumption is and ought to be against the Government in a case like the present." The benefit of doubts and ambiguities, it was said, ought, as a matter of justice, be given the applicant.

As regards Hawaii in like manner, despoilment was not the aim of annexation. It was the purpose of Congress, as expressed in the Organic Act, to leave the ceded public lands in the control of the Territory to be administered by it for the benefit of its people. There is in this benign program no proper place for advantaging the United States at the expense of the inhabitants on grounds which, though having the semblance of legality, affront the sense of justice. Nothing occurs to us to be more at war with the policy than the assertion of title by the United States, in doubtful cases, to land long occupied by local inhabitants in good faith under claim of right, more particularly in instances where the occupancy and claim originated long prior to annexation and were acquiesced in by the then Hawaiian government. In such a situation the occupant is entitled to the benefit of every presumption and to have all doubts resolved in his favor.

2. In its former opinion this court held inadmissible the presumption of a grant in favor of the private occupants, observing that "while there was some evidence of their possession, there is no proof that it was adverse, exclusive or uninterrupted" 133 F.2d 747 within the rule relating to the presumption of lost grants. The statement, we think, fails to take adequate account of the record. It is undisputed that the latter fifty years of the occupancy, from 1885 on, was adverse; and while the evidence touching the earlier period is scanty and inconclusive nevertheless the inference may fairly be drawn from it that the occupancy was adverse from the beginning. That the possession was exclusive and uninterrupted is evidenced by the fact that it was never intruded upon or disturbed by any other claimant, governmental or private.2 It is notable that this consistent recognition by government of the rightfulness of the ancient possession finally culminated in a formal disclaimer of title by the Territory.

The presumption of a lost grant is not necessarily restricted to situations in which a court or jury may believe there actually was a grant. Grants are often presumed for the mere purpose and from a principle of quieting possession. Fletcher v. Fuller, 120 U.S. 534, 7 S.Ct. 667, 30 L. Ed. 759; United States v. Chavez, 175 U. S. 509, 20 S.Ct. 159, 44 L.Ed. 255. In the present case, however, as will more fully appear from the discussion in the dissenting opinion on the first appeal, 133 F.2d 748, 749, there is evidence from which one may reasonably conclude that there was a grant of an informal nature from the monarchy to Bent and Wilkinson, that is to say, an express acquiescence in a claim of possessory title put forward by the two men who brought about the annexation of the Island. Their petition or "representation" concerning Palmyra has been lost and we can not know the purport of it. It may well be that if its contents were known a reading of it in conjunction with the resolution and other official action taken upon the granting of it would spell out a concession or recognition of ownership tantamount to a grant in fee simple.

The local decisions support the view that a lost grant may here be presumed. Consult In re Title of Kioloku, 25 Haw. 357, where, on analogous facts, the court indulged the presumption as against a claim of title put forward by the Territory. And in the Cooper proceeding the Land Court, on the identical facts now before us, entered a decree confirming Cooper's title. While no opinion was written in the case, presumably the decree was predicated on the presumption of a lost grant.3 In the absence of manifest error the federal courts are obliged to follow these local decisions. Cf. Waialua Agricultural Co. v. Christian, 305 U.S. 91, 109, 59 S.Ct. 21, 30, 83 L.Ed. 60.

3. The decisions on the original trial and appeal gave no consideration to the effect of the decree of the Hawaiian...

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