240 U.S. 192 (1916), 138, United States v. Morrison

Docket Nº:No. 138
Citation:240 U.S. 192, 36 S.Ct. 326, 60 L.Ed. 599
Party Name:United States v. Morrison
Case Date:February 21, 1916
Court:United States Supreme Court

Page 192

240 U.S. 192 (1916)

36 S.Ct. 326, 60 L.Ed. 599

United States



No. 138

United States Supreme Court

February 21, 1916

Argued December 15, 1916




The State of Oregon did not, under § 4 of the Act of February 14, 1859, c. 33, 11 Stat. 383, take title to sections 16 and 36, thereby granted prior to survey, but, until defined by survey and title had vested in the state, Congress had power to dispose of them on compensating the state for the resulting deficiency.

Surveying the public lands is an administrative act, confided by statute

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to designated officers of the United States who have power to direct how the surveys shall be made, and, until all requirement shall have been fulfilled, a survey is not a completed official act.

Nothing in the Act of February 14, 1859, or in Rev.Stat., § 2275, as amended by the Act of February 28, 1891, operated to pass title to the State of Oregon of sections 16 and 36 at any intermediate stage of the survey, or imposed any limitations on the authority of Congress to dispose of such lands before title passed to the state upon a survey duly completed according to authorized regulations of the Land Department.

A survey is incomplete until formally approved by the Commissioner, and even though approved without modification, it does not so relate back to the date of the grant or of the field survey as to destroy the power of Congress to dispose of the land while unsurveyed.

Authority to establish the Cascade Range Forest Reservation, given to the President by the Acts of March 3, 1891, and June 4, 1897, included the power to make temporary withdrawals, and a properly made order of the Secretary of the Interior withdrawing lands must be regarded as an act of the President.

The disposition of public lands by the President under the authority of Congress is a disposition by Congress.

The exception in the proclamation of January 15, 1907, enlarging the Cascade Range Forest Reserve did not include sections 16 and 36 in townships in Oregon referred to in § 4 of the Enabling Act of 1859 but which had not been included in a completed survey.

The statutory provisions for forest reservations refer to any lands which are subject to disposition of Congress, whether surveyed or not.

Quaere whether a state may await the extinguishment of a forest reserve which includes lands granted, but title to which will not vest until completed survey, and, after such extinguishment, take the granted lands.

212 F. 29 reversed.

The facts, which involve the construction of provisions in federal statutes relating to sections 16 and 36 granted to the State of Oregon, are stated in the opinion.

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HUGHES, J., lead opinion

MR. JUSTICE HUGHES delivered the opinion of the Court.

The United States brought this suit to quiet title to lands in Section 16, Township 3 South, Range 6 East, Willamette Meridian, Oregon. By the Act of February 14, 1859 (c. 33, 11 Stat. 383), for the admission of Oregon into the Union, it was provided (§ 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. . . . 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 of the Enabling Act were accepted by the Legislative Assembly of the State of Oregon on June 3, 1859. 1 Lord's Oregon Laws, pp. 28, 29.

There was a stipulation of facts, in substance, as follows:

Prior to May 27, 1902, no survey of any kind had been made by the United States of the lands in question. On June 2, 1902, a filed survey was made under the direction of the United States Surveyor General of Oregon. This officer approved the survey on June 2, 1903, and on June 8, 1903, transmitted copies of plat of survey and field notes to the Commissioner of the General Land Office. On October 13, 1904, the Commissioner informed the surveyor general that the deputy had failed to describe

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the kind of instrument used in the execution of the work, or to record any polaris or solar observations at that time, and that a supplemental report would be necessary. Additional field notes were transmitted to the Commissioner on September 8, 1905. The Commissioner accepted the survey on January 31, 1906. In view of reports of illegal settlement, it was directed that no entries should be allowed until further permission, as the survey was accepted "for payment only." The plat was received in the local land office on February 7, 1906. On November 16, 1907, the suspension was revoked, and the Surveyor General of Oregon was directed to place the plat on file in the local land office, and it was filed accordingly in substantially the same form in which it had [36 S.Ct. 328] been accepted by the Surveyor General "without change or correction." On December 16, 1905, the Secretary of the Interior

temporarily withdrew for forestry purposes from all forms of disposition whatsoever, except under the mineral laws of the United States, all the vacant and unappropriated public lands

within described areas, which include the land in controversy. Notice of this withdrawal was given on December 19, 1905, to the register and receiver of the local land office. In taking this action, the Secretary of the Interior and the Commissioner described the lands "according to the rectangular system of government survey." On January 25, 1907, the President issued a proclamation enlarging the Cascade Range Forest Reserve so as to include the section sixteen in question and other lands. This proclamation, by its terms, excepted

all lands which at this date are embraced within any withdrawal or reservation for any use or purpose to which this reservation for forest uses is inconsistent.

34 Stat. 3270.

It was the contention of the government that, by reason of the withdrawal by executive order for forestry purposes prior to the acceptance of the survey by the

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Commissioner of the General Land Office, the title to the lands did not pass to the state under the school grant. The appellees claimed title under a conveyance from the state, its certificates of sales having been executed on October 10, 1906, and its deed on January, 9, 1907. Decree in favor of the United States (United States v. Cowlishaw, 202 F. 317) was reversed by the circuit court of appeals (Morrison v. United States, 212 F. 29), and the government appeals to this Court.

The first enactment for the sale of public lands in the western territory provided for setting apart section sixteen of every township for the maintenance of public schools (ordinance of 1785; Cooper v. Roberts, 18 How. 173, 177), and, in carrying out this policy, grants were made for common school purposes to each of the public land states admitted to the Union. Between the years 1802 and 1846, the grants were of every section sixteen,1 and, thereafter, of sections sixteen and thirty-six.2 In some instances, additional sections have been granted. In the case of Oregon, the following provision had been made in establishing the territorial government (Act of August 14, 1848, c. 177, § 20, 9 Stat. 323, 330):

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

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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 1850, Congress created the office of Surveyor General of the Public Lands in Oregon, and provided for survey and for donations to settlers (Act of September 27, 1850, c. 76, 9 Stat. 496), and this act provided (§ 9):

That no claim to a donation right . . . 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.

By the Act of February 19, 1851, c. 10 (9 Stat. 568), Congress authorized the Legislative Assemblies of the Territories of Oregon and Minnesota

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 . . . reserved in each township for the support of schools therein.

In 1853 (Act of January 7, 1853, c. 6, 10 Stat. 150), the Legislative Assembly of Oregon was authorized

in all cases where the sixteen or thirty-six sections, or any part thereof, shall be taken and occupied under the law making...

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