United States v. Morrison

• Decision Date: 21 February 1916
• Docket Number: No. 138,138
• Parties: UNITED STATES, Appt., v. W. J. MORRISON, Finley Morrison, and the Sligh Furniture Company
• Court: U.S. Supreme Court

240 U.S. 192

36 S.Ct. 326

60 L.Ed. 599

UNITED STATES, Appt.,

v W. J. MORRISON, Finley Morrison, and the Sligh Furniture Company.

No. 138.

Argued December 16, 1915.

Decided February 21, 1916.

Mr. Richard Sleight for appellees W. J. and Finley Morrison.

Messrs. Mark Norris and Oscar E. Waer for appellee, Sligh Furniture Company.

[Argument of Counsel from pages 193-194 intentionally omitted] Assistant Attorney General Knaebel, Attorney General Gregory, and Messrs. Andrieus A. Jones and S. W. Williams for appellant.

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, chap. 33 (11 Stat. at L. 383, Comp. Stat. 1913, § 6799 (42)), 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 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 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. at L. 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 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 Fed. 317) was reversed by the circuit court of appeals (Morrison v. United States, 128 C. C. A. 485, 212 Fed. 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 16 of every township for the maintenance of public schools (ordinance of 1785; Cooper v. Roberts, 18 How. 173, 177, 15 L. ed. 338, 339); 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 16,¹ and, thereafter, of sections 16 and 36.² 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, chap. 177, § 20, 9 Stat. at L. 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 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, chap. 76, 9 Stat. at L. 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, chap. 10 (9 Stat. at L. 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, chap. 6, 10 Stat. at L. 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 donations of land to actual settlers' to select, 'in lieu thereof, an equal quantity of any unoccupied land in sections, or fractional sections, as the case may be.' And these provisions were followed in 1859 by the proposition of the enabling act (supra) accepted by the state of Oregon that these sections 'in every township of public lands' within the 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.'

Prior to survey, the designated sections were undefined and the lands were unidentified. It is insisted by the appellees that there was a grant in prcesenti, under which the state acquired a vested right in the lands, subject only to identification which would relate back to the date of the grant, and that 'any sale or disposal' subsequent to that date 'was illegal and void.' It will be observed, however, that the language used is not that of a present grant. The expression is 'shall be granted,' and these words are used both with respect to the described sections and to the undefined indemnity lands which would be received in compensation for losses. In the latter case, there was obviously no present grant, and none, we think, was intended in the former. Attention is called to the words 'herein granted' in the proviso of the enabling act, but this is a mere reference to what precedes, and does not change, or purport to change, the terms of the donation. It must have been manifest to Congress, executing this definite policy with respect to the vast area of the public lands, that not improbably a long period would elapse in the case of numerous townships before surveys would be completed. Not only was it inevitable that upon survey there would be found to be fractional townships in which there would be either no section sixteen, or thirty-six, or only a portion of one or the other, but in various instances there might be prior claims, or actual settlements, or it might appear before surveys were had that there were important public interests which, in the judgment of Congress, should be subserved by some other disposition of lands of a particular character. On the other hand, it was not important to the state that it should receive specific lands, if suitable indemnity were given. It was in this situation that, in making its school grants to the public-land states, Congress provided that the described sections, or equivalent lands if the former in whole or in part had 'been sold or otherwise been disposed of,' should be granted. Whether or not provision had already been made for the sale or disposition of public lands within the borders of the state at the time of its admission, the language of the school grant was substantially the same. And we think that its import is...