Morrison v. United States

• Decision Date: 02 February 1914
• Docket Number: 2295.
• Citation: 212 F. 29
• Parties: MORRISON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

212 F. 29

MORRISON et al. v. UNITED STATES.

No. 2295.

United States Court of Appeals, Ninth Circuit.

February 2, 1914

Mark Norris, of Grand Rapids, Mich., and R. Sleight, of Portland Or., for appellants.

Clarence L. Reames, U.S. Atty., and Everett A. Johnson, Asst. U.S Atty., both of Portland, Or.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

The sole question in this case is whether the lands here in controversy, which constitute a part of section 16, township 3 south, range 6 east of the Willamette meridian, in the state of Oregon, passed to that state, and through it to its grantees, prior to the attempted withdrawal of the said lands from any disposition by the executive department of the government.

The act of Congress of August 14, 1848 (9 Stat. 323, c. 177,) entitled 'An act to establish the territorial government of Oregon,' provided in its twentieth section:

'That when the lands in the said territory shall be surveyed under the direction of the government of the United States, preparatory to bringing the same into market, sections numbered sixteen and thirty-six in each township in said territory shall be, and the same is hereby, reserved for the purpose of being applied to schools in said territory, and in the states and territories hereafter to be erected out of the same.'

In the act of Congress of September 27, 1850 (9 Stat. 496, c. 76), entitled 'An act to create the office of Surveyor General of the Public Lands in Oregon, and to provide for the survey, and to make donations to settlers of the said public lands,' it was provided, among other things:

'Sec. 3. That if, in the opinion of the Secretary of the Interior, it be preferable, the surveys in said territory shall be made after what is known as the goedetic method, under such regulations, and upon such terms, as may be provided by the Secretary of the Interior or other department having charge of the surveys of the public lands, and that said goedetic surveys shall be followed by topographical surveys, as Congress may from time to time authorize and direct; but if the present mode of survey be adhered to, then it shall be the duty of said surveyor to cause a base line and meridian to be surveyed, marked, and established, in the usual manner, at or near the mouth of the Willamette river; and he shall also cause to be surveyed, in townships and sections, in the usual manner, and in accordance with the laws of the United States, which may be in force, the district of country lying between the summit of the Cascade Mountains and the Pacific Ocean, and south and north of the Columbia river: Provided, however, that none other than township lines shall be run where the land is deemed unfit for cultivation. That no deputy surveyor shall charge for any line except such as may be actually run and marked, nor for any line not necessary to be run; and that the whole cost of surveying shall not exceed the rate of eight dollars per mile, for every mile and part of mile actually surveyed and marked'

-- and after making certain donations of public lands to certain specifically described settlers, declared, in its ninth section, as follows:

'That no claim to a donation right under the provisions of this act, upon sections sixteen or thirty-six, shall be valid or allowed, if the residence and cultivation upon which the same is founded shall have commenced after the survey of the same; nor shall such claim attach to any tract or parcel of land selected for a military post, or within one mile thereof, or to any other land reserved for governmental purposes, unless the residence and cultivation thereof shall have commenced previous to the selection or reservation of the same for such purposes.'

By its act of February 19, 1851 (9 Stat. 568, c. 10), entitled 'An act to authorize the legislative assemblies of the territories of Oregon and Minnesota to take charge of the school lands in said territories, and for other purposes,' Congress enacted:

'That the Governors and legislative assemblies of the territories of Oregon and Minnesota be, and they are hereby, authorized to make such laws and needful regulations as they shall deem most expedient to protect from injury and waste sections numbered sixteen and thirty-six in said territories, reserved in each township for the support of schools therein.'

By its act of February 14, 1859 (11 Stat. 383, c. 33), entitled 'An act for the admission of Oregon into the Union,' Congress provided, among other things, as follows:

'Sec. 4. That the following propositions be, and the same are hereby, offered, to the said people of Oregon for their free acceptance or rejection, which, if accepted, shall be obligatory on the United States and upon the said state of Oregon, to wit: First, 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. Second, that seventy-two sections of land shall be set apart and reserved for the use and support of a state university, to be selected by the Governor of said state, subject to the approval of the Commissioner of the General Land Office, and to be appropriated and applied in such manner as the Legislature of said state may prescribe for the purpose aforesaid, but for no other purpose. Third. That ten entire sections of land, to be selected by the Governor of said state, in legal subdivisions, shall be granted to said state for the purpose of completing the public buildings, or for the erection of others at the seat of government, under the direction of the Legislature thereof. Fourth. That all salt springs within said state, not exceeding twelve in number, with six sections of land adjoining, or as contiguous as may be to each, shall be granted to said state for its use, the same to be selected by the Governor thereof within one year after the admission of said state, and when so selected, to be used or disposed of on such terms, conditions and regulations as the Legislature shall direct: Provided, that no salt spring or land, the right whereof is now vested in any individual or individuals, or which may be hereafter confirmed or adjudged to any individual or individuals, shall be this article be granted to said state. Fifth. That five per centum of the net proceeds of sales of all public lands lying within said state which shall be sold by Congress after the admission of said state into the Union, after deducting all the expenses incident to the same, shall be paid to said state, for the purpose of making public roads and internal improvements, as the Legislature shall direct: Provided, that the foregoing propositions, hereinbefore offered, are on the condition that the people of Oregon shall provide by an ordinance, irrevocable without the consent of the United States, that said state shall never interfere with the primary disposal of the soil within the same by the United States, or with any regulations Congress may find necessary for securing the title in said soil to bona fide purchasers thereof; and that in no case shall nonresident proprietors be taxed higher than residents. Sixth. And that the said state shall never tax the lands or the property of the United States in said state: Provided, however, that in case any of the lands herein granted to the state of Oregon have heretofore been confirmed to the territory of Oregon for the purposes specified in this act, the amount so confirmed shall be deducted from the quantity specified in this act.'

The propositions specifically stated in section 4 of the act of February 14, 1859, as well as the aforesaid acts respecting the school sections, were, according to the stipulation of facts entered into by and between the respective parties to the present case, accepted by an act of the legislative assembly of the state of Oregon of June 3, 1859 (Laws, 1st Extra Sess. p. 36).

The stipulation shows these further facts: Prior to May 27, 1902, the lands in controversy were unsurveyed. On that day a field survey of their east boundary was made, and on June 2d following the north, west, and south boundaries thereof were surveyed, and the said section 16 subdivided according to the rules of the Land Office for surveying the lands of the government. This field survey was approved by the United States Surveyor General for the state of Oregon June 2, 1903, and on the 8th of the same month that officer transmitted copies of the plat of the survey and field notes to the Commissioner of the General Land Office at Washington, which 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 day accordingly filed in that office. Shortly prior to the acceptance by the Commissioner of the survey mentioned, to wit, on the 16th day of December, 1905, the Secretary of the Interior made an order temporarily withdrawing, for forestry purposes, from al forms of disposition whatsoever except under the mineral laws of the United States--

'all the vacant and unappropriated public lands within the areas specifically described in that certain letter of the Commissioner of the General Land Office, of date December 12, 1905, to the Secretary of the Interior, including all of township three (3) south, range six (6) east of the Willamette meridian.'

In December, 1905, a telegram was sent by the Commissioner of the General Land Office to the register and receiver of the United...