United States v. Cowlishaw

• Decision Date: 13 January 1913
• Docket Number: 3,866.
• Citation: 202 F. 317
• Parties: UNITED STATES v. COWLISHAW et al.
• Court: U.S. District Court — District of Oregon

202 F. 317

UNITED STATES v. COWLISHAW et al.

No. 3,866.

United States District Court, D. Oregon.

January 13, 1913

John McCourt, U.S. Atty., and Robert F. Maguire, Asst. U.S. Atty.

R Sleight, of Portland, Or., for defendants.

WOLVERTON District Judge.

This is a suit to quiet the title to certain lands in the plaintiff against the claim of ownership and right to possession of the defendants. The lands are a part of school section No. 16, in township 3 S., range 6 E., of the Willamette meridian.

The facts as stipulated by counsel are as follows: Prior to May 27, 1902, the lands were unsurveyed lands of the United States. On that date a field survey of the east boundary of said lands was made, and on June 2d the north, west, and south boundaries were surveyed, and section 16 subdivided according to the rules of the Land Office in surveying the lands of the government. This field survey was approved by the United States Surveyor General of the state of Oregon June 2, 1903, and on June 8th that officer transmitted copies of the plat of survey and field notes to the Commissioner of the General Land Office at Washington, D.C., and the survey was accepted by the Commissioner January 31, 1906. On November 16, 1907, the Commissioner directed the Surveyor General to place a plat of the survey in the field in the local land office of the United States at Portland, Or which was on the same date accordingly filed in that office. On December 16, 1905, the Secretary of the Interior, by order, temporarily withdrew for forestry purposes, from all forms of disposition whatsoever, except under the mineral laws of the United States, all vacant and unappropriated public lands within a certain specifically described area including said township 3 S., range 6 E., W.M., and the local land office was duly notified of such order. On January 25, 1907, the President of the United States issued a proclamation enlarging the Cascade Range Forest Reserve to include such lands, which, among other things, provided that all lands which at said date were embraced within any withdrawal or reservation for any use or purpose to which said reservation for forest uses was inconsistent were excepted from the force and effect of such proclamation.

On October 10, 1906, the state of Oregon, in pursuance of the laws for the disposal of lands owned by it, executed a certificate of sale to Robert F. Louden for the S.E. 1/4 of said section 16, and to Alvina S. Louden a certificate for the S. 1/2 of the N.E. 1/4 and the N.W. 1/4 of the N.W. 1/4 of said section; and they thereafter assigned and transferred said certificates of sale to Finley and W. J. morrison. On January 9, 1907, the state of Oregon, on surrender of the certificates of sale, executed to these latter purchasers a deed granting and conveying to them the lands described. On July 12, 1910, Finley and W. J. Morrison conveyed to the defendant Sligh Furniture Company.

Under the facts as thus stipulated, it is claimed by the government that at the time the state exercised authority to sell and dispose of such lands they were not school lands, but were the property of the government, and not subject to sale by the state. The defendants controvert this position, and claim to have acquired the fee-simple title in regular course. The question thus presented depends upon the proper construction of the clause in the enabling act of Congress for the admission of the state of Oregon into the Union, approved February 14, 1859 (Act Feb. 14, 1859, c. 33, 11 Stat. 383), pertaining to school lands, which reads as follows:

'That sections numbered sixteen and thirty-six in every township of public lands in said state, and where either of said sections, or any part thereof, has been sold or otherwise been disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to said state for the use of schools.'

The grant was accepted by the Legislative Assembly of the state June 3, 1859. The language of the act is 'shall be granted.' This has never been construed, that I am aware of, as a grant in praesenti, but it rather looks to the future, as depending on some future act or event, and as not to become effective until such act or event has taken place or happened. It is manifest that the act is not a grant of all sections 16 and 36 within the territorial limits of the state; for it provides that if such sections, or any part thereof, have been sold or otherwise disposed of other lands equivalent thereto, and as contiguous as may be, shall be granted. This again raises the inquiry as to when the grant is to become effective as an actual transfer of the lands to the state. As to the lands to be granted in the place of the school sections, or any part thereof, sold or otherwise disposed of, it is very plain that there could be no passing of title until they were identified by some approved method of selection from the public domain. In construing a similar statute (the enabling act of the state of Nevada, which employed the words 'shall be and are hereby granted'), the Supreme Court was led to observe that:

'Her people were not interested in getting the identical sections 16 and 36 in every township. Indeed, it could not be known until after a survey where they would fall, and a grant of quantity put her in as good a condition as the other states which had received the benefit of this bounty. A grant, operating at once, and attaching prior to the surveys by the United States, would deprive Congress of the power of disposing of any part of the lands in Nevada until they were segregated from those granted. ' Heydenfeldt v. Daney Gold, etc., Co., 93 U.S. 634, 638 (23 L.Ed. 995).

In that case the state of Nevada issued a patent to plaintiff's predecessor July 14, 1868. The defendant claimed under a patent from the United States, issued March 2, 1874, under the act of Congress of July 26, 1866, as amended by an act approved July 9, 1870, and the act of May 10, 1872, relating to the development of the mining resources of the United States. The land in controversy was mineral land, and the defendant's grantors and predecessors had entered upon the same for mining purposes in 1867, prior to the survey or approval of the survey of the school section in which it was located, and had claimed the same in conformity with the laws and customs of miners in that locality. The enabling act for the admission of the state into the Union was adopted March 21, 1864. So it appears in that case that the land in dispute was entered upon for mining purposes subsequent to the adoption of the enabling act, at a time prior to a survey of the school section, but before the grant by the state to plaintiff's predecessor; and the question was fairly presented whether the title passed to the state at the time of its admission into the Union, or at some future time, namely, the time of its...