United States v. 2,271.29, ACRES, ETC.

• Decision Date: 15 November 1928
• Docket Number: No. 190.,190.
• Citation: 31 F.2d 617
• Parties: UNITED STATES v. 2,271.29 ACRES, MORE OR LESS, OF LAND IN LA CROSSE, TREMPELEAU, VERNON, AND GRANT COUNTIES, WIS., et al.
• Court: U.S. District Court — Western District of Wisconsin

31 F.2d 617 (1928)

UNITED STATES v. 2,271.29 ACRES, MORE OR LESS, OF LAND IN LA CROSSE, TREMPELEAU, VERNON, AND GRANT COUNTIES, WIS., et al.

No. 190.

District Court, W. D. Wisconsin.

November 15, 1928.

Stanley M. Ryan, of Janesville, Wis., and John A. Murphy, Sp. Asst. U. S. Atty., of Winona, Minn., for the United States.

John W. Reynolds, Atty. Gen., and Michael J. Dunn, Asst. Atty. Gen., for the State of Wisconsin.

LUSE, District Judge.

Proceedings to condemn certain lands in Grant, La Crosse, Trempeleau, and Vernon counties, Wisconsin, for the "Upper Mississippi Wild Life and Fish Refuge," provided for by the Act of Congress of June 7, 1924 (43 Stat. at Large, 650 16 USCA §§ 721-731). The Attorney General for the state of Wisconsin moves to dismiss: (1) Because the petition does not state facts warranting the relief sought; and (2) this court lacks jurisdiction.

While proceedings for the exercise of eminent domain are considered law actions (Strong, J., in Kohl v. U. S., 91 U. S. 367, 23 L. Ed. 449; Franzen v. Ry. Co. (C. C. A.) 278 F. 371), no objection is made to the method of raising the points made by the state, and its motion will therefore be deemed a demurrer and treated as such.

The second ground of demurrer may be disposed of with little discussion. The contention of respondent the state of Wisconsin is that the petition misjoins two causes of action: One to condemn lands, which is conceded to be within this court's jurisdiction; the other, because of the prayer for an order permitting persons having conflicting claims to the land to file appropriate pleadings asserting such claims and to pursue the funds paid into court, and have their rights in the funds determined, without further concern to the United States, the proceedings are in the nature of proceedings to quiet title, and, as conflicting claims may arise between claimants having no diversity of citizenship, this court has no jurisdiction. The contention involves several propositions, but all are met by the proposition that the court has undoubted jurisdiction of the condemnation proceedings and to receive the funds awarded for lands into its registry, and as an incident thereof to determine which, of adverse claimants, such funds should be paid to, regardless of diversity of citizenship, or the amount in controversy, between such claimants. True, as was held in United States v. Eisenbeis (C. C. A.) 112 F. 190, under certain circumstances, such jurisdiction would not be deemed exclusive of that of state courts, but concurrent therewith; but that presents no valid reason, as I see it, why this court has not complete jurisdiction of the matter. The second ground of demurrer will be overruled.

The first ground of demurrer requires more extended discussion. The second, third, and fourth sections of the Act of June 7, 1924, read as follows:

"Sec. 2. The Secretary of Agriculture is authorized and directed to acquire by purchase, gift, or lease, such areas of land, or of land and water, situated between Rock Island, Illinois, and Wabasha, Minnesota, on either side of or upon islands in the Mississippi River which are subject to overflow by such river and which are not used for agricultural purposes, as he determines suitable for the purposes of this act.

"Sec. 3. Any such area, when acquired in accordance with the provisions of this act, shall become a part of the Upper Mississippi River Wild Life and Fish Refuge (hereinafter in this act referred to as the `refuge'). The refuge shall be established and maintained (a) as a refuge and breeding place for migratory birds included in the terms of the convention between the United States and Great Britain for the protection of migratory birds, concluded August 16, 1916; and (b) to such extent as the Secretary of Agriculture may by regulations prescribe, as a refuge and breeding place for other wild birds, game animals, fur-bearing animals, and for the conservation of wild flowers and aquatic plants; and (c) to such extent as the Secretary of Commerce may by regulations prescribe as a refuge and breeding place for fish and other aquatic animal life.

"Sec. 4. (a) No such area shall be acquired by the Secretary of Agriculture until the Legislature of each State in which is situated any part of the areas to be acquired under this act has consented to the acquisition of such part by the United States for the purposes of this act, and, except in the case of a lease, no payment shall be made by the United States for any such area until title thereto is satisfactory to the Attorney General and is vested in the United States.

"(b) The existence of a right of way, easement, or other reservation or exception in respect of such area shall not be a bar to its acquisition (1) if the Secretary of Agriculture determines that any such reservation or exception will in no manner interfere with the use of the area for the purposes of this act; or (2) if in the deed or other conveyance it is stipulated that any reservation or exception in respect of such area, in favor of the person from whom the United States receives title, shall be subject to regulations prescribed under authority of this act."

Pursuant to the foregoing the Wisconsin Legislature in 1925 passed an act, now section 1.035 of the Wis. Stats. of 1927, reading as follows:

"1.035. Wild Life and Fish Refuge by United States. (1) The state of Wisconsin hereby consents that the government of the United States may acquire in this state, in any manner, such areas of land, or of land and water, as the United States may deem necessary for the establishment of the `Upper Mississippi River Wild Life and Fish Refuge,' in accordance with the act of Congress approved June 7, 1924: Provided, that the states of Illinois, Iowa and Minnesota grant a like consent, and all rights respectively reserved by said states, in addition to the reservation herein made, are hereby reserved to the state of Wisconsin; and provided, further, that any acquisition by the government of the United States of land, or of land and water, shall first be approved by the Governor, on the advice of the conservation commissioner.

"(2) The consent hereby given is upon the condition that the United States shall not, by an act of Congress or by regulation of any department, prevent the state and its agents from going upon the navigable waters within or adjoining any area of land, or land and water, so acquired by the United States, for the purpose of rescuing or obtaining fish therefrom; and the state shall have the right to construct and operate fish hatcheries and fish rescue stations adjacent to the areas so acquired by the United States; and the navigable waters leading into the Mississippi and the carrying places between the same, and the navigable lakes, sloughs and ponds within or adjoining such areas, shall remain common highways for navigation and portaging, and the use thereof, as well to the inhabitants of this state as to the citizens of the United States, shall not be denied.

"(3) The legal title to and the custody and protection of the fish in the navigable waters leading into the Mississippi river and in the navigable lakes, sloughs and ponds within or adjoining such areas in this state, is vested in the state, for the purpose of regulating the enjoyment, use, disposition and conservation thereof.

"(4) The state retains jurisdiction in and over such areas so far that civil process in all cases, and such criminal process as may issue under the authority of the state against any persons charged with the commission of any offense within or without such areas, may be executed thereon in like manner as if this consent had not been given. (1925, c. 170; 1925, c. 454, s. 1.)"

Approval of the acquisition of the lands in question by the United States has, according to the petition, been accorded by the Governor of Wisconsin, on the advice of the conservation commissioner.

The state's first claim is that this legislative consent is violative of the state Constitution:

First, because La Crosse, Trempeleau, and Vernon counties each has an area less than 900 square miles, and there has been no compliance with section 7, art. 13, of the Wisconsin Constitution. That section reads: "No county with an area of 900 square miles or less shall be divided or have any parts stricken therefrom without submitting the question to a vote of the people of the county, nor unless a majority of all the legal voters of the county voting on the question shall vote for the same."

Second, because the state holds and controls navigable waters in trust for its people, and may not delegate such trust to another sovereignty, and it is under similar nondelegable obligation to its people with respect to game animals, fowl, and fish.

It is not to be denied that the national government may acquire lands necessary or convenient for the exercise of its powers, within any of the states, and that neither the consent of the states nor of individuals is necessary. Kohl v. United States, 91 U. S. 367, 23 L. Ed. 449. And in view of paragraph 2, art. 6, of the federal Constitution, it seems clear that, if we assume power in the government to establish a refuge such as is contemplated here, the states' consent is not necessary, except as it is made so by the act of Congress, and except that exclusive political jurisdiction might not accrue to the government in its absence. Article 1, § 8, par. 17, Const. U. S.; and see Ft. Leavenworth R. R. v. Lowe, 114 U. S. page 531, 5 S. Ct. 995, 29 L. Ed. 264.

However, the "Refuge" Act expressly provides: "No such area shall be acquired by the Secretary of Agriculture until the Legislature of each state * * * has consented * * * to the acquisition * * * for the purposes of this act." Section 4. The consent required is presumably a valid consent, within the constitutional powers of the Legislature. And hence the validity of the consent of the Wisconsin Legislature is a...