596 F.2d 349 (9th Cir. 1979), 77-2388, Town of Greenhorn v. Baker County, Oregon

Docket Nº:77-2388.
Citation:596 F.2d 349
Party Name:TOWN OF GREENHORN, an Oregon Municipal Corporation, Gail L. Poyser, Miles F. Potter, Lillian Potter and Guy Miller, Plaintiffs-Appellees, v. BAKER COUNTY, OREGON, Defendant-Appellant.
Case Date:April 20, 1979
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 349

596 F.2d 349 (9th Cir. 1979)

TOWN OF GREENHORN, an Oregon Municipal Corporation, Gail L.

Poyser, Miles F. Potter, Lillian Potter and Guy

Miller, Plaintiffs-Appellees,


BAKER COUNTY, OREGON, Defendant-Appellant.

No. 77-2388.

United States Court of Appeals, Ninth Circuit

April 20, 1979

Rehearing Denied May 22, 1979.

Jesse R. Himmelsbach, Jr., Baker, Or., for defendant-appellant.

John C. Caldwell, Oregon City, Or., for plaintiffs-appellees.

Appeal from the United States District Court for the District of Oregon.

Before WRIGHT and ANDERSON, Circuit Judges, and McNICHOLS, District Judge. [*]

EUGENE A. WRIGHT, Circuit Judge:

Baker County appeals from a judgment declaring that it has no interest in disputed property within the Town of Greenhorn, Oregon, and appointing a successor trustee to the property pursuant to 43 U.S.C. § 718 (1970), the Townsite Act. Because the case does not present a federal question, the district court lacked jurisdiction. We reverse.


The Townsite Act, 43 U.S.C. § 718 (1970), 1 provided that when public lands had been settled and occupied as a town site, if the town was incorporated, its corporate authorities had the right to enter the land at the proper land office "in trust for the several use and benefit of the occupants thereof, according to their respective interests."

Greenhorn was a thriving town during Eastern Oregon's mining boom in the 1800's. It was incorporated in 1903 2 and, in 1912, Simeon Richardson, as mayor of Greenhorn, procured a patent in trust under

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§ 718. He conveyed a few lots to the occupants in accordance with the statute, but the property subject to this suit was unoccupied and remained in trust.

Greenhorn eventually became a ghost town. In 1954, Richardson executed a quitclaim deed of his interest in Greenhorn to Baker County, but delivered the deed to his niece, not to county officials. When he died in 1955, his niece took the deed to the county judge of Baker County, who recorded it.

In the 1960's, several families resettled in Greenhorn, although no one lives there permanently. 3 Some property owners in Greenhorn decided to reorganize a government for the town. 4 No one had been elected since Richardson left Greenhorn in the 1940's. Those elected officials, together with other property owners, brought this action 5 seeking

(1) a declaration that the deed by Richardson to the county was invalid;

(2) a declaration that the county has no interest in the land;

(3) appointment of a trustee of the land described in the deed (as a successor to Richardson). 6

The district court did not decide whether the deed was valid or validly delivered. It held that, assuming the validity of the deed, Baker County would only "hold the land in trust for the benefit of the occupants of Greenhorn."

The court determined that Baker County had interests adverse to those of the trust beneficiaries 7 and concluded that a successor trustee should be appointed because Baker County's status as trustee "would present a classical example of a conflict of interest which a court of equity will redress." It also declared that the county has no interest in the disputed property.


This court recently reviewed the issue of federal question jurisdiction in Keaukaha-Panaewa Com. v. Hawaiian Homes Comm'n., 588 F.2d 1216 (9th Cir. 1978). There, plaintiffs argued that the defendant, charged with administering lands held in trust for native Hawaiians, had violated both the Hawaiian Homes Commission Act, Pub.L. No. 67-34, 42 Stat. 108 (1921), which created the Commission, and the Hawaii Admission Act, Pub.L. No. 86-3, 73 Stat. 4

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(1959), which transferred title to the lands in question to the state of Hawaii.

The court found that "two discrete issues" were involved: "whether there exists (1) a private cause of action, and (2) federal question jurisdiction." 588 F.2d at 1220. Each is an "equally lethal potential obstacle" to claims based on a federal statute. Id. at 1224. As to the Admission Act claims, the court found that there was no private right of action. As to the Commission Act claims, it found that there was no federal question jurisdiction.

Here, there is also a threshold question whether the Townsite Act creates a private cause of action for plaintiffs such as these. The Act does not expressly provide that "a private party . . . can enforce duties and obligations imposed by the Act; . . . ." National Railroad Passenger Corp. v. National Ass'n of Railroad Passengers, 414 U.S. 453, 456, 94 S.Ct. 690, 692, 38 L.Ed.2d 646 (1974). We need not reach this issue because we find that there is no federal question jurisdiction.


The district court found that the case arose under the following provisions of the Townsite Act:

§ 718. Entry of town authorities in trust for occupants.

Whenever any portion of the public lands have been or may be settled upon and occupied as a...

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