Clear Lake Power & Improvement Co. v. Chriswell

• Citation: 173 P. 326,31 Idaho 339
• Court: United States State Supreme Court of Idaho
• Decision Date: 19 March 1918
• Parties: CLEAR LAKE POWER & IMPROVEMENT COMPANY, a Corporation, Appellant, v. JOHN CHRISWELL, JAMES CHRISWELL and I. F. CONSTANT, Respondents

173 P. 326

31 Idaho 339

CLEAR LAKE POWER & IMPROVEMENT COMPANY, a Corporation, Appellant, v. JOHN CHRISWELL, JAMES CHRISWELL and I. F. CONSTANT, Respondents

Supreme Court of Idaho

March 19, 1918

APPEAL-DISMISSAL-PRAECIPE FOR PAPERS-ORDER FOR TRANSCRIPT-PROCEEDINGS OF LAND BOARD-PRESUMPTION OF REGULARITY-COLLATERAL ATTACK.

1. "The statute requiring the filing of a praecipe within five days after the filing of notice of appeal is directory and not mandatory. The time of filing the praecipe may be considered in connection with the question of diligence in taking the appeal."

2. A party desiring to procure a reporter's transcript of the evidence and proceedings, to be used on appeal, must use due diligence in procuring the same, and must procure an order for such transcript within a reasonable time from the taking of the appeal.

3. Under the provisions of sec. 4809, Rev. Codes, if an undertaking on appeal is insufficient or defective in any respect, such insufficiency or defect is waived unless the respondent, within twenty days after the filing of such undertaking, shall file and serve on the appellant, or his attorney, a notice pointing out specifically the defects or insufficiencies of such undertaking, and no defect or insufficiency not thus specifically pointed out shall subsequently be urged against the undertaking on appeal.

4. In proceedings for the alienation of public lands, in the absence of fraud or imposition or mistake, the action of the land department, upon matters of fact cognizable by it, is conclusive.

5. The decision of the land department as to the character of public lands is not subject to review by the courts.

6. Where land is properly subject to the action of the land department and that department has acted in regard to it, it will be conclusively presumed that all the preliminary requirements have been properly complied with and the records of the department are not admissible to show that such requirements have not been complied with.

7. An ex parte affidavit in regard to the publication of a notice in the proceedings in the land department, not a part of the record in that department, is not competent evidence to attack or impeach the regularity of such proceedings.

8. By offering evidence which is admitted by the court, the party offering it is estopped to question its admissibility, but is not estopped to raise a question as to its legal effect.

[As to mode of preserving for review oral evidence in equity case see note in Ann.Cas. 1913A, 529]

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. James R. Bothwell Judge.

Action to quiet title. Judgment for defendants. Reversed.

Judgment of the trial court reversed and cause remanded. Costs awarded to appellant.

W. T Stafford and Sutphen & Sutphen, for Appellant.

The determination of the land department as to the character of the land, except in cases of fraud, imposition or mistake, is conclusive, and cannot be reviewed by the courts. (32 Cyc 1040 (12); Lee v. Johnson, 116 U.S. 48, 6 S.Ct. 249, 29 L.Ed. 570; Quinby v. Conlan, 104 U.S. 420, 26 L.Ed. 800; Marquez v. Frisbie, 101 U.S. 473, 25 L.Ed. 800; Pierson v. State Board of Land Commrs., 14 Idaho 159, 93 P. 775; White v. Whitcomb, 13 Idaho 490, 90 P. 1080; Le Fevre v. Amonson, 11 Idaho 45, 81 P. 71; Germania Iron Co. v. United States, 165 U.S. 379, 17 S.Ct. 337, 41 L.Ed. 754; St. Louis Smelting & Ref. Co. v. Kemp, 104 U.S. 636, 26 L.Ed. 875; Neff v. United States, 165 F. 273, 91 C. C. A. 241; Town of Red Bluff v. Walbridge, 15 Cal.App. 770, 116 P. 77; Johnson v. Towsley, 80 U.S. 72, 20 L.Ed. 485.)

On questions of fact, a decision rendered by the officers of the land department is conclusive and not subject to review by the courts, in the absence of a showing of fraud, imposition or mistake, other than an error of judgment in estimating the value and effect of evidence. (Balderston v. Brady, 17 Idaho 567, 574, 107 P. 493; 32 Cyc. 1020, and cases cited.)

A patent is conclusive against collateral attack with reference to the question whether all preliminary requirements have been carried out. (Galbraith v. Shasta Iron Co., 143 Cal. 94, 76 P. 901; Last Chance Min. Co. v. Bunker Hill etc. Min. etc. Co., 131 F. 579, 66 C. C. A. 299.)

Under the rule that public officers are presumed to do their duty, the presumption is that all necessary preliminary steps to the issuance of a patent have been taken and that the patent was regularly issued. (32 Cyc. 1033, 1034; Colorado Coal etc. Co. v. United States, 123 U.S. 307, 8 S.Ct. 131, 31 L.Ed. 182, 189; Diamond Coal & Coke Co. v. United States, 233 U.S. 236, 34 S.Ct. 507, 58 L.Ed. 936; Davis v. Weibbold, 139 U.S. 507, 11 S.Ct. 628, 35 L.Ed. 238.)

Sweeley & Sweeley, for Respondents.

The rule which holds that a patent cannot be collaterally attacked is not universal, and particularly applies to a case where the government had jurisdiction to act. (Chicago Quartz Min. Co. v. Oliver, 75 Cal. 194, 7 Am. St. 143, 16 P. 780; St. Louis Smelting etc. Co. v. Kemp, 104 U.S. 636, 26 L.Ed. 875; Wright v. Roseberry, 121 U.S. 488, 7 S.Ct. 985, 30 L.Ed. 1039; Oregon Short Line R. R. Co. v. Stalker, 14 Idaho 362, 371, 392, 94 P. 56, 59.)

When appellant submitted the notice of the application for the patent and the proof that it had been published for only thirty days, it fatally impeached its own title, for the rules of the Interior Department required that the notice must be published for sixty days compelling publication for ten weeks. (Miner v. Mariott, 2 L. D. 709; Railroad Selections--Mineral Lands, 19 L. D. 21; Railroad Selections--Advertisement, 19 L. D. 105.)

The giving of the notice of the application for a patent under the act referred to bears the same relation to the proceeding as the service of a summons bears to the commencement of a court action, and if this notice is not given, the government had no jurisdiction to act and the patent so issued is open to attack. (Yerkes v. McFadden, 141 N.Y. 136, 36 N.E. 7; Montgomery v. Manning, 1 Wash. Ter. 434.)

A failure to publish a notice for the required length of time is not a mere irregularity, but is a jurisdictional defect, and will render subsequent proceedings under such notice void. (17 Plead. & Prac. 94, and cases cited; Jordan v. Giblin, 12 Cal. 100; Crary v. Barber, 1 Colo. 172; Guaranty Trust etc. Co. v. Green Cove Springs etc. R. Co., 139 U.S. 137, 11 S.Ct. 512, 35 L.Ed. 116.)

MCCARTHY, District Judge. Morgan and Rice, JJ., concur.

OPINION

MCCARTHY, District Judge.

--Appellant brought this action to quiet title to certain lands as against any adverse claim of respondents. Respondents disclaim any interest in the lands described in the complaint, except lot 2 of section 11. The title of appellants to this lot is based on a patent issued by the United States to the Northern Pacific Railway Co., pursuant to the provisions of the act of Congress of July 2, 1864, granting lands to said company, and subsequent acts, particularly that of July 1, 1898, by which last-named act the railway company was given the right to select lands in lieu of others which it was compelled to relinquish. The respondent, John Chriswell, claims that from 1896 he has continuously lived upon and been in possession of said lot 2 with his family, basing his right thereto on certain mining claims. At the trial the appellant introduced in evidence, as proof of publication of the notice that the patent had been applied for by the railway company, exhibit 1, which states that the notice was published in a newspaper for thirty days only. The district court held that the notice was not published for the full time required by the rules and regulations of the Department of the Interior, and the patent could be attacked in this action. Therefore the district court admitted evidence as to the character of the land and found from the evidence that it was mineral in character and was in the occupation of an actual settler at the time the patent was issued. From this the district court concluded that the patent was wrongfully issued, that the title of the appellant must fail, and that appellant was not entitled to a judgment quieting its title.

Appellant made a motion for a new trial, which was denied by the court. Appellant appealed from the judgment and also from the order of the court denying the motion for a new trial. Respondents have moved to dismiss the appeal. The motion to dismiss the appeal from the judgment is upon the grounds that the appeal was taken on June 2, 1915, that the appellant did not file, with the clerk of the district court, a praecipe for a transcript of the papers until November 20, 1915, and did not procure an order for the reporter's transcript of the testimony and proceedings until November 22, 1915. "The statute requiring the filing of a praecipe within five days after the filing of notice of appeal is directory and not mandatory. The time of filing the praecipe may be considered in connection with the question of diligence in taking the appeal." (Bohannon Dredging Co. v. England, 30 Idaho 721, 168 P. 12.) We conclude that the appellant did not observe due diligence in procuring a transcript of the papers and of the testimony and proceedings, so far as the appeal from the judgment is concerned.

The principal ground of the motion to dismiss the appeal from the order denying a new trial is that no undertaking was given as required by law. It appears that an undertaking was given after the taking of the appeal from the order denying a motion for a new trial, but respondents claim that it is a nullity in that it does not specifically state whether it is given on the appeal from the judgment or on the appeal from the order denying a motion for a...