Bell v. Apache Maid Cattle Co., 8433.

• Decision Date: 23 February 1938
• Docket Number: No. 8433.,8433.
• Parties: BELL v. APACHE MAID CATTLE CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

94 F.2d 847 (1938)

BELL v. APACHE MAID CATTLE CO. et al.

No. 8433.

Circuit Court of Appeals, Ninth Circuit.

February 23, 1938.

Norris & Patterson, and W. E. Patterson, all of Prescott, Ariz., and Strouss & Salmon, Charles L. Strouss, and Riney B. Salmon, all of Phoenix, Ariz., for appellant.

James E. Babbitt, Wilson, Wood & Compton, C. B. Wilson, Chandler M. Wood, Orinn C. Compton, and Chas. B. Wilson, Jr., all of Flagstaff, Ariz., for appellees.

Before GARRECHT, MATHEWS, and HANEY, Circuit Judges.

GARRECHT, Circuit Judge.

The appellant with leave of court filed an amended bill of complaint which appellees moved to dismiss upon the grounds that said amended bill (a) did not state facts sufficient to constitute a cause of action at law or in equity, (b) was wholly without equity, (c) did not state facts sufficient to entitle plaintiff to relief by way of specific performance of the contract alleged, (d) did not state facts sufficient to entitle plaintiff to any relief, (e) upon its face shows that the contract alleged was the basis of the action is illegal, void, and unenforceable, and (f) that it appears from said amended bill that the cause of action is stale.

The motion of appellees to dismiss the amended bill of complaint was granted by the court below and a decree of dismissal was entered from which this appeal is taken.

In addition to the facts vesting the court with jurisdiction, the material allegations of the amended complaint set forth that prior to January 31, 1931, the appellant was the owner of certain real property adjacent to, and certain improvements on, the Coconino National Forest in Arizona, and was the owner of 40 head of cattle ranging and running on said forest under permits from the United States Forestry Service.

That at the same time the appellees were the owners of 283 acres of patented land adjacent to, and improvements on, said National Forest, and possessed the right under permits from the United States Forestry Service to graze 3,174 head of cattle on said National Forest.

That on or about January 31, 1931, the appellant entered into an agreement with the appellees whereby, "subject to the consent and approval of the United States Forestry Service and the officials thereof * * * defendants would sell, convey and deliver to plaintiff appellant herein their said patented lands and the said improvements on said Forest, together with sufficient range and area on said Forest to graze, run and maintain throughout the year no less than 960 head of cattle net by relinquishing from their said permit on said Forest sufficient range and area to so graze, run and maintain said number of cattle; and that the plaintiff appellant herein would purchase the same and pay to defendants appellees herein therefor the sum of $16.00 per head for said cattle, the sum of $4700 for improvements, and the sum of $2830 for said patented land, or a total of $22,890."

Continuing, the amended complaint alleges:

"That at the time of entering into said contract and prior thereto said Forest Service had, unknown to the plaintiff, informed defendant, Apache Maid Cattle Company, that it would be required to reduce its number of cattle and grazing preference because of the overgrazed condition of said Forest; and at the time of entering into said contract, defendants, and each of them, well knew and understood that unless defendants fully met and absorbed the reduction required by said Forest Service out of other of their said cattle running on said Forest the requirements of said Forest Service would extend to and affect the relinquishment of range for the grazing and running of 960 head of cattle to be acquired by plaintiff pursuant to said contract, by greatly reducing the number of cattle said plaintiff would actually be permitted to graze, run or maintain on said Forest, and defendants further knew and understood at said time that, in order for said defendants to comply fully with the terms of said contract and to relinquish to plaintiff sufficient range and area on said Forest to graze and run 960 head of cattle and to cause same to be allotted to him by said Forestry Service, they would in fact have to relinquish many more than said number, all of which was unknown to plaintiff, and all of which was at all times concealed by the defendants from the plaintiff."

The complaint then alleges that the plaintiff paid to defendants the total amount provided to be paid by said contract and otherwise fully performed all of its terms; and in reliance upon the contract plaintiff expended a large sum of money in the erection of fences, developments of water, and installation of other necessary improvements on the range and area on said Forest Reserve relinquished by defendants to graze and maintain 960 actual head of cattle.

The complaint further alleges:

"That said defendants on their part conveyed said patented land and said improvements in this amended complaint mentioned to plaintiff as required by the terms of said contract and pretended to relinquish sufficient range on said Forest to graze, run and maintain 960 head of cattle, and defendants advised and informed plaintiff that they had executed the necessary instruments whereby said Forest Service did allot to him range and area on said Forest sufficient to graze, run and maintain 960 head of cattle, net, as provided in said contract, but, due to said reduction in the number of defendants' cattle running on said Forest, as so ordered by said Forest...