Boe v. Arnold

• Decision Date: 01 June 1909
• Parties: BOE v. ARNOLD.
• Court: Oregon Supreme Court

102 P. 290

54 Or. 52

BOE v. ARNOLD.

Supreme Court of Oregon

June 1, 1909

Appeal from Circuit Court, Malheur County; George E. Davis, Judge.

Action by Christ C. Boe against Hoyt Arnold. Judgment for defendant and plaintiff appeals. Affirmed.

Plaintiff brings ejectment against defendant to recover certain land situated in Malheur county. Defendant makes general denial and pleads the following separate defenses: (1) That he is in possession as lessee of A.N. Soliss, and that Soliss is the owner in fee of the demanded premises. (2) Act Cong. July 5 1866, c. 174, 14 Stat. 89, granting to the state of Oregon three sections of land per mile of road, to be selected within six miles on each side of said road, to aid in the construction of a wagon road from Albany to the eastern boundary of the state; and the further act of June 18, 1874 (18 Stat. 80, c. 305), providing that patent should issue to grantee of the state after the lands have been selected and approved, and alleges that the map of definite location of the eastern section of said road was filed July 10, 1871 that the demanded premises were within the limit prescribed by the act, and were selected by the Willamette Valley & Cascade Mountain Road Company September 27, 1886; that the Commissioner of the General Land Office is alleged to have been directed to withdraw the odd sections falling within the limits designated on an accompanying plat June 2, 1872, but such plat was not received by the local land office at La Grande until July 5, 1883; that on February 18, 1893, Josiah H. Chandler, predecessor in interest to defendant and from whom A.N. Soliss, defendant's lessor, deraigns title, filed his application for a homestead on said land, alleging continuous settlement since 1881. The answer also alleges a contest on the part of the company, a decision in favor of Chandler by the local land office, and successive appeals from that office to the Commissioner of the General Land Office and Secretary of the Interior, in all of which the decision of the local land office was affirmed, and, after notice to the company, was made final. It further alleges that neither said company nor any one in its behalf questioned said decision, but, on the contrary, said company and plaintiff herein, who is its grantee, acquiesced in the settlement, and received, without question, patent to all other lands contained in the selection list, from which the demanded premises had been stricken, and selected other lands in lieu of the lands in controversy, and secured patent and holds title to such other lands, and that said grant has been fully satisfied and patent issued and received therefor by plaintiff. (3) By way of estoppel defendant pleads substantially the same facts recited in his previous answer, and alleges that the property is of a greater value than $3,000; and that defendant will be greatly damaged if plaintiff is suffered to assert title to the demanded premises. (4) That he holds possession from A.N. Soliss, his lessor, alleging continuous settlement of the demanded premises by Josiah H. Chandler from 1881 to February 18, 1893, and that Chandler at the latter date filed his application for a homestead; that said application was contested by the Willamette Valley & Cascade Mountain Road Company; that Chandler was successful in said contest; that the company acquiesced in the same and selected other lands in lieu thereof, for which it received patent; that its grant is now fully satisfied; that the decision in favor of Chandler was granted April 24, 1895; that on December 26, 1904, final certificate was issued in favor of Chandler, which was recorded in the record of deeds for Malheur county March 7, 1905; that patent to the demanded premises was issued to the heirs of Chandler on March 5, 1906, which was recorded May 8, 1906, and alleges mesne conveyances from certain of said heirs to A.N. Soliss, defendant's lessor; and that Soliss was a purchaser without notice and in good faith of the demanded premises. (5) That adverse possession is and has been in Soliss and his grantors and predecessors in interest for more than 10 years next preceding the commencement of this action. To this there is a reply, denying all the matters therein, except certain matters of record.

F.M. Saxton, for appellant.

C.E.S. Wood, for respondent.

McBRIDE J. (after stating the facts as above).

The first question presented in this appeal is: Did the title to the lands lying within the six-mile limit of the Willamette Valley & Cascade Mountain Wagon Road grant pass upon the mere filing of the company's selection list, or did it pass upon the approval of such list by the Secretary of the Interior? It is not disputed that the company filed the map of definite location of its road as to that part of it along which the land in question is situated on July 10, 1871, and it satisfactorily appears that notice of withdrawal of said lands from entry or sale did not reach the local land office at La Grande until July 5, 1883. The evidence shows Chandler's settlement to have been instituted in 1881 and to have been continued to the present time by himself or his legal representatives, or their grantee. Now, if the approval of the company's selection list by the Secretary of the Interior was necessary to pass title to the land, plaintiff must fail in this action, as it is clear that the Secretary rejected and struck from such list the lands in controversy here, and that they were subsequently patented to the heirs of Chandler. The identical question involved in this action was considered by this court in the case of Altschul v. Clark, 39 Or. 315, 65 P. 991, which was an action involving the construction of the terms of this very grant. In that case it was held by the court that no title passed until the selection had been approved by the Secretary of the Interior. Counsel for plaintiff frankly admit in their brief that, if that case is to be upheld, they must fail in their present contention. That case was fully presented, and the opinion by Mr. Justice Wolverton shows careful research and consideration, and we are satisfied that it correctly states the law in relation to the grant in question, and therefore we still adhere to the doctrine therein announced, so far as it relates to the date that title passed from the United States to the wagon road company.

The recent decision in the case of the Eastern Oregon Land Co. v. Brosnan (C.C.) 147 F. 807, is greatly relied upon by counsel for plaintiff in their argument in this case, and some stress is laid upon the fact that Judge Wolverton who rendered the opinion in the case of Altschul v. Clark, after further investigation of the law on the federal bench, arrived at a different conclusion from that reached by him in that case. But the difference of a single phrase in the two acts makes the cases as wide apart as the poles. The granting clause in the act of Congress depended upon in the case of the Land Company v. Brosnan reads as follows: "There be and is hereby granted alternate sections of public land designated by odd numbers, three sections per mile on each side of said road." Act Feb. 25, 1867, c. 77, 14 Stat. 409. The grant for the Willamette Valley & Cascade Mountain Road reads: "There be and is hereby granted alternate sections of public land designated by odd numbers, three sections per mile to be selected within six miles of said road." In the first grant the law selects and designates. Nothing is left to fix the grant, but merely filing a map of definite location. It is a grant in place, a definite location of the road being sufficient to fix and identify it, and the learned judge very properly held that title passed upon such definite location. Altschul v. Clark, supra; Wisconsin R.R. Co. v. Price County, 133 U.S. 496, 10 Sup.Ct. 341, 33 L.Ed. 687. But in the grant under consideration the words "to be selected" are added to the word "designated." Here is no grant in place. Here some agency must select before the grant becomes fixed. Was it the intention of Congress that selections should be made and patent pass without any official supervision by the government in its own behalf or the interest of its citizens? We think not. Lands to the extent almost of empires have been granted to the very limit of profusion and recklessness to aid railroads and wagon roads, but it is inconceivable that it was the intention of Congress to make the recipient of so generous a grant as this the sole judge of what it had a right to take without a shadow of governmental supervision. The difference in the result reached in the case of Altschul v. Clark and Eastern Oregon Land Company v. Brosnan arises through a radical difference in the terms of the grant; one being a grant in place and the other a floating grant, dependent upon selection. The two decisions are consistent with each other and with the law in respect to the matters heretofore adverted to.

In addition to this, it appears from certified copies of the list of land selected and patented by the United States to the Willamette Valley & Cascade Mountain Wagon Road Company and its grantees, and by official communications of the Commissioner of the General Land Office and the Secretary of the Interior made in the regular course of business of their respective office, that this grant has been completely filled and the whole matter closed. Conceding, without deciding, that the oral testimony of Col. Wood, manager of the road company, all through these proceedings was not admissible, we think these official communications under the circumstances in which they were made, are admissible, and that, taken together, they show plaintiff's grantor has already received and accepted patent to all the lands required to fill up...