Edwards v. Bodkin

• Citation: 249 F. 562
• Decision Date: 08 March 1918
• Docket Number: 3046.
• Parties: EDWARDS v. BODKIN.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

249 F. 562

EDWARDS v. BODKIN.

No. 3046.

United States Court of Appeals, Ninth Circuit.

March 8, 1918

Wm. B Edwards, of Redlands, Cal., in pro. per.

Duke Stone, of Los Angeles, Cal., for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

This is an appeal from a decree dismissing a bill of complaint without leave to amend. We shall designate the parties here as plaintiff and defendant, as they were in the court below.

1. The defendant has interposed a motion to dismiss the appeal on the ground that no printed brief has been filed or served containing a concise abstract or statement of the case presenting succinctly the questions involved in the manner in which they are raised; that no specification of errors relied upon is stated, and no citation has been issued and served upon the defendant as required by the rules of this court.

The plaintiff is prosecuting this appeal in forma pauperis, under the permission of an order of this court relaxing rules 23 and 24 (150 F. cxiv, cxv, 79 C.C.A. cxiv, cxv) requiring the printing of the transcript of record and briefs. In an equity case the rule requires that the specifications shall state as particularly as may be in what respect the decree is alleged to be erroneous. We find no special difficulty in understanding the questions involved in the controversy, and we think the plaintiff, who is prosecuting this appeal in personam, has stated the case as well as he knows how, and under the circumstances the rule in this respect should also be relaxed in his favor.

The appeal appears to have been allowed in open court, and it was perfected during the term at which the decree was rendered. This was a sufficient notice of the appeal. Jacobs v George, 150 U.S. 415, 14 Sup.Ct. 159, 37 L.Ed. 1127; Taylor v. Leesnitzer, 220 U.S. 91, 93, 31 Sup.Ct. 371, 55 L.Ed. 382.

2. The action is to have the defendant, to whom a patent has been issued by the Land Department of the government for a certain described tract of land originally within a reclamation reservation declared a trustee holding the title to such land for the benefit of the plaintiff. The motion admitted the truth of the material allegations of the complaint, and we must now read them as established facts, and determine whether or not they state a cause of action calling for equitable relief. Many of the allegations contained in the bill are irrelevant and immaterial to the questions to be determined, and will be so treated in our final conclusions.

The complaint is not a model of legal composition, but is an example of the difficulty to which judicial inquiry is sometimes subjected in getting at the real merits of a case, where the relevant and material facts are not fully or succinctly and plainly stated. In this respect the complaint in this case is exceptionally defective, and requires a restatement of the facts in an orderly sequence and with due regard to their logical and legal import.

The act of June 17, 1902 (32 Stat. 388, c. 1093 (Comp. St. 1916, Secs. 4700-4708)), authorized the Secretary of the Interior to withdraw certain public lands of an arid or semiarid character from entry for irrigation purposes. The withdrawals provided in section 3 of the act were to embrace two distinct classes: First, public land required for any irrigation works contemplated under the provisions of the act; second, public lands believed to be susceptible of irrigation from said works.

The first class has been designated by the Land Department as 'withdrawals under the first form,' and the second class as 'withdrawals under the second form.' In the withdrawal of lands under the first form there was no exception. All the lands described were withdrawn from public entry. In the withdrawal of lands under the second form there was an exception in favor of homesteads; that is to say, such lands were not withdrawn from public entry under the homestead laws, but were continued to be open to such entry, 'subject to all the provisions, limitations, charges, terms and conditions' of the act.

On July 17, 1902, the Secretary of the Interior withdrew certain public lands in Southern California under the provisions of the act of June 17, 1902. The withdrawal was of the class of lands designated as 'second form'; that is to say, lands believed to be susceptible of irrigation under the reclamation system provided by the act. These lands continued to be open to homestead settlement and entry, notwithstanding their withdrawal, and included, among others, the N.E. 1/4 of section 11, township 7 S., range 2 E., S.B.M.

On December 1, 1902, and within six months after the passage of the act, the plaintiff made entry of this tract of land under the homestead and reclamation laws of the United States. He was at the time qualified in every way to make and perfect such entry, and the land entered was then unappropriated public lands of the United States and subject to such entry. Thereafter plaintiff complied with all of the requirements of the homestead and reclamation laws, made final proof of such compliance before the United States land office for that land district, proved such compliance by two creditable witnesses, who made oath to all the items required by law to be made, paid all the fees required by law to be paid prior to receiving a patent for the land, published in due form notice to all persons having or claiming to have a better right to such land than the plaintiff, and required such persons to appear and exhibit such claim of right. No person appeared at the time and place and offered evidence of a better or of any right adverse to plaintiff; nor was notice ever given to plaintiff by the land office that the proof submitted was defective in any way as to the special or any of the conditions under which the entry was made. But the Land Department, without regard to the premises, refused to consider such proof and to issue a patent to plaintiff for the land described. After making the proof required, the plaintiff continued to reside upon the land, to cultivate and improve it in accordance with the purpose he had in making the entry, and kept his claim for a patent continually before the Land Department as a claim of legal right.

From a map attached to the complaint it appears that the land entered by the plaintiff as a homestead is about 5 miles due west from the Colorado river. Between this land and the river is a tract of land of about 4,000 acres, stretching along the west bank of the river, north and south, for a distance of 14 or 15 miles, and about 4 miles in width at a point between plaintiff's land and the river. This large tract of land is designated on the map as the 'Blythe Rancho,' and it is owned in private estate. From a point on the Colorado river where the northern boundary of the rancho touches the river runs a canal in a southerly and westerly direction, across the rancho and the public lands, terminating in public lands about a mile north of plaintiff's land. This canal is called the 'Blythe Canal.' When plaintiff entered his homestead, this canal only required opening and extending to reclaim all the public lands withdrawn for that purpose in that locality. The public lands immediately to the west of the lands of the Blythe Rancho susceptible of reclamation by irrigation comprise about 6,000 acres, but the water for their irrigation must be carried from the Colorado river across the private lands mentioned to reach the public lands. Within 30 days after plaintiff had entered his homestead he established his residence on the land, taking work stock and tools to the land, and improving, clearing, and preparing the land for cultivation; but plaintiff was not then able or prepared, or had occasion to believe he would be required, to reside upon and cultivate the land continuously until some form of reclamation had been devised and installed for use.

On September 12, 1903, the Secretary of the Interior withdrew a tract of land under the first form which included plaintiff's homestead entry. This withdrawal, under the act of June 7, 1902, excluded homestead entries, and provided that the Secretary of the Interior should restore to public entry any of the lands so withdrawn when in his judgment such lands were not required for the purposes of the act. The facts stated in the complaint indicate that nothing was done by the government in perfecting a system of irrigation for these lands under either the first or second form of withdrawal, but the lands were held as withdrawn for nearly nine years, and during that time left open for the work of a private corporation called the 'Land & Water Company,' which had succeeded to the ownership of the lands of the Blythe Rancho, and contemplated a system of irrigation for the private lands of the corporation and the adjoining public lands in which plaintiff's homestead entry was located. In this situation plaintiff purchased from the owners of the Blythe Canal the right to connect with that canal, and he dug a ditch over the government land to do so. Thereafter he cultivated and improved the land, never intending to abandon the same.

On May 5, 1908, the defendant served a notice of contest upon the plaintiff, in which it was charged that the plaintiff had never established a residence upon the land, had made no improvements thereon, and that he had abandoned the same for more than six months. The defendant, in support of this contest, made oath that he did not know and had no means of knowing the facts. This was insufficient to initiate a contest. Schofield v. Cole, 1 Land Dec. 140. And at the hearing of the contest it was proven, and conceded without dispute, that plaintiff had established a residence upon the land in controversy, had made...