Cheney v. Minidoka County

• Decision Date: 05 November 1914
• Citation: 144 P. 343,26 Idaho 471
• Parties: R. L. CHENEY, Respondent, v. MINIDOKA COUNTY et al., Appellants
• Court: Idaho Supreme Court

144 P. 343

26 Idaho 471

R. L. CHENEY, Respondent, v. MINIDOKA COUNTY et al., Appellants

Supreme Court of Idaho

November 5, 1914

PUBLIC LANDS-RECLAMATION ACT-CONSTITUTIONAL AND STATUTORY LAW-HOMESTEAD ENTRYMAN-INTEREST OF ENTRYMAN-PROOF OF RESIDENCE AND CULTIVATION-TAXATION.

1. Where a homestead entryman of land included within a government reclamation project presents proof to the proper government officer that he has complied with the law in relation to residence and cultivation of said land and secures a certificate from the United States that his proof has been accepted, further residence on the land is not required in order to obtain final certificate and patent, and patent will issue upon proof that at least one-half of the irrigable area in the entry as finally adjusted has been reclaimed and that all the charges and fees and commissions due on account thereof have been paid to the proper receiving officer of the government.

2. Where such entryman, in addition to establishing his residence on, and cultivation of, such land, has paid the United States five annual instalments on his water right amounting to $11 per acre, as provided by the reclamation act and the rulings of the Secretary of the Interior thereunder and the entryman still owes the United States five annual instalments in payment of what is known as the construction charge for the irrigation canals and other works constructed by the United States for the purpose of furnishing water to the land entered, he has an equitable interest in such land which is "property" within the meaning of that word as used in the constitution and laws of this state, and the matter then rests wholly with the entryman whether he will make the deferred payments and the additional proof required by said reclamation act.

3. Under the provisions of secs. 2, 3 and 5, art. 7 of the state constitution, and sec. 1, Sess. Laws 1913, p. 173, all "property" within the state is liable to taxation unless expressly exempted.

4. Under said reclamation act, where a person has so far complied with the provisions of said law as to residence and cultivation of the land for more than five years, he can complete his title at any time by making final proof and paying the deferred payments on his water right and the fees provided by law to be paid. Under said act the government simply retains title as security for the pay- ment of the money owing on the purchase price of the water right for such land.

5. Held, under the facts of this case, that plaintiff's interest in said lands is "property," and subject to taxation.

6. The possessory right referred to in secs. 4554 et seq., Rev. Codes, is a squatter's right on public lands, and there is a clear distinction between such right and the right acquired by a formal homestead or other entry of public land under the laws of the United States.

7. When public land is surveyed by the government and filed upon by a qualified entryman it ceases to be public land, and if such entryman complies with the law and thereafter makes proper final proof and payments, he is entitled to a patent.

8. When such entryman makes his proof of residence and cultivation and there only remains the lien of the government for deferred payments on the water right for such land, the entryman's interest in such land is taxable.

9. The interest of the entryman in such land can be sold at delinquent tax sale and the lien of such sale foreclosed and the title thereto obtained, under the provisions of the present revenue law, chap. 58, Laws of 1913, p. 173.

10. Nothing that the taxing authorities have done or could do can or will affect the lien, rights or interests of the United States in such land for the deferred payments on the water right.

APPEAL from the District Court of the Fourth Judicial District for Minidoka County. Hon. C. O. Stockslager, Judge.

Action to restrain Minidoka County from levying and collecting taxes on certain lands in said county. Demurrer to the complaint overruled and judgment and decree entered in favor of the plaintiff. Reversed.

Cause remanded, with directions. Costs awarded to defendants.

Sweeley & Sweeley and H. B. Redford, for Appellants.

All property is liable to taxation unless expressly exempted. (Salisbury v. Lane, 7 Idaho 370, 63 P. 383.) And when a claim of exemption is made, it must clearly appear, and the party claiming it must be able to point out some provision of law plainly giving the exemption. (People v. Coleman, 135 N.Y. 231, 31 N.E. 1022; note to Herrick & Stevens v. Sargent & Lahr, 132 Am. St. 293, and cases cited.)

The term "property" as applied to land comprehends every species of title, inchoate or complete. It is supposed to embrace those rights which lie in contract--those which are executory as well as those which are executed. (Soulard v. United States, 4 Pet. (U.S.) 511, 7 L.Ed. 938; King v. Gotz, 70 Cal. 236, 11 P. 656.)

The interest of the settler is recognized as property by the statutes of the United States, which permit him to sell and mortgage.

And the fact that the government has some interest in the property is no reason why taxes on the interest of the settler cannot to be laid. (Baltimore Shipbuilding etc. Co. v. Baltimore, 195 U.S. 375, 25 S.Ct. 50, 49 L.Ed. 242, and cases cited.)

A similar question is presented by the taxation of what is known as Carey act lands prior to the issuance of a patent and was determined by the case of Bothwell v. Bingham County, 24 Idaho 125, 132 P. 972.

He who has the right to property and is not excluded from its enjoyment shall not be permitted to use the legal title of the government to escape his just share of taxation. (Northern P. R. Co. v. Patterson, 154 U.S. 130, 14 S.Ct. 977, 38 L.Ed. 934; Maish v. Territory of Arizona, 164 U.S. 599, 609, 17 S.Ct. 193, 41 L.Ed. 567, 571; Northern P. R. Co. v. Myers, 172 U.S. 589, 601, 19 S.Ct. 276, 43 L.Ed. 564, 568; Stearns v. Minnesota, 179 U.S. 223, 21 S.Ct. 73, 45 L.Ed. 162.)

Where a person has so far complied with the provisions of the homestead law, by residing upon and cultivating the land for more than five years, that he can complete his title at any time by making final proof and paying the fees provided by law, the land covered by his entry is taxable. (Bellinger v. White, 5 Neb. 399; Iowa R. R. Land Co. v. Fitchpatrick, 52 Iowa 244, 3 N.W. 40; Northern P. R. Co. v. Myers, 172 U.S. 589, 19 S.Ct. 276, 43 L.Ed. 564.)

Under the law as it originally stood, what are known as "possessory rights" to public lands were taxable. (People v. Owyhee Min. Co., 1 Idaho 409; Quivey v. Lawrence, 1 Idaho 313.)

In no just sense can lands be said to be public lands after they have been entered at the land office and certificate of entry obtained. (Herrick & Stevens v. Sargent & Lahr, supra.)

This court has stated in effect that land covered by a possessory right is a part of the public domain. (Maydole v. Watson, 7 Idaho 66, 60 P. 86.)

Surveyed land filed on as a homestead is private property and not public land. (Johnson v. Oregon Short Line R. Co., 7 Idaho 355, 63 P. 112, 53 L. R. A. 744; Brown v. Kennedy, 12 Colo. 235, 20 P. 696.)

"When the entry of land is made and the certificate given, the particular land is segregated from the mass of public lands and becomes private property." (Witherspoon v. Duncan, 4 Wall. (U.S.) 210, 18 L.Ed. 339; Bardon v. Northern P. R. R. Co., 145 U.S. 535, 12 S.Ct. 856, 36 L.Ed. 806; Hastings & Dakota R. R. Co. v. Whitney, 132 U.S. 357, 10 S.Ct. 112, 33 L.Ed. 363.)

W. R. Hyatt, for Respondent.

Under the general public land laws of the United States, until patent has issued or a final receipt showing the holder entitled to a patent, the land or any equity or interest therein is not subject to taxation for state, county, etc., purposes. (Bothwell v. Bingham County, 24 Idaho 125, 132 P. 972; Oregon Short Line R. R. Co. v. Quigley, 10 Idaho 770, 80 P. 401.)

Taxation cannot apply in any case until the right to a patent is complete and the equitable title fully vested in the party without anything more to be paid or any act to be done going to the foundation of the right. (Cooley on Taxation, pp. 135, 137; Kansas P. Ry. Co. v. Prescott, 16 Wall. (U.S.) 603, 21 L.Ed. 373; Union Pacific R. R. Co. v. McShane, 22 Wall. (U.S.) 444, 22 L.Ed. 747; Central Colorado Imp. Co. v. Board of County Commissioners, 95 U.S. 259, 24 L.Ed. 495; Northern P. R. Co. v. Rockne, 115 U.S. 600, 6 S.Ct. 201, 29 L.Ed. 477; Wisconsin Central R. Co. v. Price County, 133 U.S. 496, 10 S.Ct. 341, 33 L.Ed. 687; Hussman v. Durham, 165 U.S. 144, 17 S.Ct. 253, 41 L.Ed. 664; Stearns v. Minnesota, 179 U.S. 223, 21 S.Ct. 73, 45 L.Ed. 162; Diver v. Friedheim, 43 Ark. 203; Kohn v. Barr, 52 Kan. 269, 34 P. 880; Durham v. Hussman, 88 Iowa 29, 55 N.W. 11; Pitts v. Clay, 27 F. 635; Judson on Taxation, p. 23.)

For the purpose of the act, the mere possessory right of the settler does not remove the land from the legal classification as public lands of the United States, and the homestead settler under the provisions of the reclamation act has certainly nothing more than a possessory right prior to the time when he shall have paid for the land and the water charges as provided in the act. (United States v. Minidoka & Southwestern R. Co., 190 F. 491, 111 C. C. A. 323.)

"Lands belonging to the state are exempt from taxation, and no title can be acquired to the same by a tax deed." (State v. Stevenson, 6 Idaho 367, 55 P. 886.)

SULLIVAN, C. J. Truitt, J., concurs.

OPINION

SULLIVAN, C. J.

This suit was brought to determine the legality of a certain tax levy upon plaintiff's interest in certain land which he had entered under the homestead laws and statutes of the United States commonly known as the reclamation act. Said...