Baer v. Moran Bros. Co.

• Decision Date: 01 August 1891
• Parties: BAER v. MORAN BROS. CO.
• Court: Washington Supreme Court

27 P. 470

2 Wash. 608

BAER v. MORAN BROS. CO.

Supreme Court of Washington

August 1, 1891

Appeal from superior court, King county.

Action in ejectment by Milton L. Baer against the Moran Bros Company, a corporation. Judgment for defendant. Plaintiff appeals. Affirmed.

Beriah Brown, Jr., for appellant.

J C. Haines, for respondent.

STILES J.

The appellant brought ejectment for the following described real estate in King county, viz.: "Beginning at a point 688 feet south, and 660 feet west, of the east one-quarter post of section six, township twenty-four north, range four east W. M.; thence west one hundred and fifty feet; thence south two hundred and ten feet; thence east one hundred and fifty feet; thence north two hundred and ten feet, to place of beginning,-being the premises covered by Moran Brothers Company's foundry and machine-shop." The complaint showed the plaintiff's ownership of Valentine scrip E No. 199, for 40 acres, and that on the 23d day of September, 1889, "he duly selected the following described tract of unsurveyed land for location thereunder, to-wit: Beginning at a point one hundred and sixty rods south of the north-east corner of section six, township twenty-four north, range four east, W. M.; thence west eighty rods; thence south eighty rods; thence east eighty rods; thence north eighty rods, to the place of beginning,-containing 40 acres,-which said tract of land, when surveyed, will conform to the general system of the United States land surveys, and will be known and designated as the 'north-east quarter of south-east quarter of section six, township twenty-four north, range four east, W. M."' The complaint then proceeds: "(12) That this plaintiff selected the said tract of land in the manner following, to-wit: On the said 23d day of September, 1889, this plaintiff filed with the register and receiver of the United States land-office at Seattle, Washington, a notification that in pursuance of the act of congress approved April 5, 1872, the said plaintiff had selected the said tract of land, [describing it,] together with an affidavit of this plaintiff to the effect that the said tract of land was not mineral in character, and at the said time and place the said plaintiff filed with the said register and receiver of said United States land-office the said piece of scrip, numbered E, No. 199, for cancellation, and tendered to said receiver the sum of two dollars, being the amount of fees allowed by law to the register and receiver of United States land-offices in the Territory of Washington, on the entry of forty acres of land with Valentine scrip. (13) That the said tract of land so selected by said plaintiff was, at the time of its selection by said plaintiff, unoccupied and unappropriated public land of the United States, not mineral, in this: that the said tract of land was situated in the Territory of Washington, was a portion of the tide-flats, was covered and uncovered by the flow and ebb of the tide,-uncovered at ordinary low tide, and was covered with water at ordinary high tide,-and had never been set apart by the United States for any particular use; that the said tract, or any portion thereof, was not in the possession of any person claiming or intending to claim any title thereto under or in pursuance of any statute or treaty of the United States, and the said tracts were not chiefly or at all valuable for mineral, and that the Indian right of occupancy thereto had been extinguished." A general demurrer to the complaint was sustained in the court below, and, on the plaintiff's refusal to plead further, judgment was rendered for the defendant, dismissing the action. The appellant contends: (1) That the "Act for the relief of Thomas B. Valentine" was a grant upon conditions which have been strictly performed, whereby the title vested; citing Rutherford v. Greene's Heirs, 2 Wheat. 198, and other cases involving the construction of congressional donations of public lands. For the purposes of this decision, the proposition may be accepted without discussion. (2) That on the 23d day of September, 1889, the tract in question was public land of the United States, (Washington then being a territory,) and that congress could at all times up to that date dispose of it as it saw fit; citing Insurance Co. v. Canter, 1 Pet. 542; Goodtitle v. Kibbe, 9 How. 471; Case v. Toftus, 39 F. Rep. 733. This point, also, may be admitted for the sake of the argument. (3) That said tract, not having been reserved by competent authority, or not occupied in good faith by intending claimants under the United States land laws, was subject to selection by Valentine or his assigns in satisfaction of his grant. Upon this proposition the issue in the case is made, and upon its determination the appeal will succeed or fail.

The act of April 5, 1872, (17 St. at Large, 649,) commonly known as the "Valentine Scrip Act," authorized Thomas B. Valentine, or his legal representatives, in lieu of lands claimed by him in the Rancho Arroyo de San Antonio, in the county of Sonoma, Cal., to select and have patents for an equal quantity of the unoccupied and unappropriated public lands of the United States, not mineral, and in tracts not less than the subdivisions provided for in the United States land laws, and, if unsurveyed when taken, to conform, when surveyed, to the general system of United States land surveys. The complaint, as above quoted, contains allegations which negative any claim that this tract was occupied or appropriated in pursuance of any statute or treaty of the United States, or was mineral in character, or had been reserved or was subject to an Indian title. These allegations, and the pro forma admissions under the first and second points, strip the case of every defense except that the tract in question was not "public lands," within the meaning of the act of 1872. In our view it was not such land, and for the following reasons:

1. The complaint shows that it is a portion of the tide-flats, is covered and uncovered by the flow and ebb of the tide, being uncovered at ordinary low tide, and covered at ordinary high tide; and by reference to the public surveys we find that it is a portion of the bottom of Elliott bay, an arm of the sea, in front of the city of Seattle.

2. Within the meaning of the acts of congress, and the policy thereby clearly established from the earliest times, the decisions of courts, and the general understanding,...