Ferry v. Fowler

• Decision Date: 05 January 1910
• Docket Number: 2046
• Citation: 37 Utah 34,106 P. 506
• Court: Utah Supreme Court
• Parties: FERRY v. FOWLER

106 P. 506

37 Utah 34

FERRY v. FOWLER

No. 2046

Supreme Court of Utah

January 5, 1910

APPEAL from District Court, Fourth District; Hon. J. E. Booth Judge.

Action by Edward P. Ferry, by William Montague Ferry, and another his general guardians, against R. E. Fowler.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

F. J Gustin and Zane & Stringfellow for appellant.

APPELLANT'S POINTS.

In determining boundaries of land courses and distances yield to monuments or natural objects. The reason of the rule is that it is the intention of the grant to convey the land actually surveyed and mistakes in courses or distances are more probable and more frequent than marked trees, mountains, rivers or other natural objects capable of being clearly designated and accurately described. (McIvers Lease v. Walker, 4 Wheat. [U.S.] 444, 17 Law Ed., 445; White v. Williams, 48 N.Y. 344; Beldon v. Seymour, 8 Conn. 19; Howe v. Bass, 2 Mass. 380; Walrod v. Flanigan, 75 Ia. 365; Hughes v. Cawthorn, 35 F. 248; Ogilvie v. Copeland, 145 Ill. 98.) The intention of the United States government was to grant to the Indians and reserve to the United States the land lying on each side of the Uintah river in Utah Territory, extending to "the crest of the first range of contiguous mountains on each side." When boundaries of land are fixed by known and unquestionable monuments, although neither courses nor distances nor the computed contents corresponds, the monuments must govern. (Pernam v. Wead, 6 Mass. 131.) An executive order by the President of the United States by which is set apart as a reservation for certain specified Indians a certain scope of country has the same effect as a treaty would have had with the Indians for the same purpose, and there can be no doubt of the power of the President to reserve such lands for the use of the Indians. (McFadden v. Mountain View Ming. & Mill'g Co., 97 F. 673; John Campbell Appeal, 6 Land Dec. 317; W. N. Braden Appeal, 1 Land Dec. 101; Reservation, 1 Land Dec. 702-3. This purpose and the stipulation of the United States could not be defeated by the action of any officers of the land department. (U. S. v. Carpenter, 111 U.S. 356; Lindley on Mines, sec. 183; Mono Fraction Lode Mining Claim, 31 Land Dec. 121; Acme Cement & Plaster Co., 31 Land Dec. 125; Gibbs v. Anderson, 131 F. 39; Instructions of the Sec. of Int., 31 Land Dec. 178.) A patent may be collaterally impeached in any action and its operation as a conveyance defeated by showing that the department had no jurisdiction to dispose of the land; that is, that the law did not provide for selling it, or that it had been reserved for sale, or dedicated to special purposes, or had been previously transferred to others. (2 Lindley on Mines, sec. 777 [subd. 4]; 1 Lindley on Mines, subd. 4, sec. 175 and cases cited; Deffeback v. Hawkes, 115 U.S. 392; Davis v. Weibold, 139 U.S. 509; Doolan v. Carr, 125 U.S. 618; Larkin v. Dooly, 58 F. 333; Parleys Park S. M. Co. v. Kerr, 130 U.S. 261; Hardin v. Jordan, 140 U.S. 371.)

Richards, Richards & Ferry for respondent.

RESPONDENT'S POINTS.

The definite boundary lines of a United States government Indian reservation are established by survey under the direction of the Interior Department of the Government, and its action is conclusive and final and cannot be attacked collaterally.

Individuals have a right to rely upon a survey and acquire vested rights under it.

No subsequent corrective survey can affect a primary survey to the extent of interfering in any way with vested property rights acquired under the primary survey, no matter how inaccurate the primary survey may have been.

The courts will protect the vested rights of individuals acquired under the primary survey. (R. S. of U.S. sec. 2396, sub. 2; Cragin v. Powell, 128 U.S. 566; Lindley on Mines, secs. 185-192, and cases cited; 27 Cyc. 546; Re Fort Maginnis, 1 L. D. 552; Washington Rock Co. v. Young, 29 Utah 108; Noonan v. Caledonian G. M. Co., 121 U.S. 393; Kendall v. San Juan S. M. Co., 144 U.S. 658; Snyder on Mines, sec. 179.)

STRAUP, C. J. FRICK and McCARTY, JJ., concur.

OPINION

STRAUP, C. J.

This is an action in ejectment. The plaintiff alleged that he was the owner and entitled to the possession of certain mining claims known as the "Tykoon Consolidated Mining Claims," and designated as lots numbers 34 to 43, inclusive, situate in Wasatch County, this state, and that the defendant wrongfully took possession of them, and ejected the plaintiff therefrom. The defendant denied that his possession was wrongful. He alleged that when the plaintiff entered and located the claims in 1880, and when he obtained his patent for them from the government of the United States in 1891, they were within an Indian reservation, and were not subject to location or sale, and that the plaintiff's location and patent were therefore void; that in 1905 the unallotted lands of the reservation were restored to the public domain, and in 1907 the defendant located the ground as the Danville group of claims; and that he claimed possession of them by virtue of such location. The principal question presented involves the boundary line of the reservation. It is claimed by the plaintiff that the Tykoon claims which were located by him, and for which he obtained a patent, were without the reservation. The defendant claimed the contrary. Upon the evidence adduced by both parties the court found in favor of plaintiff, and adjudged that the plaintiff was the owner and entitled to the possession of the Tykoon claims, and that the defendant surrender possession of them to the plaintiff. From such judgment, the defendant has prosecuted this appeal.

The judgment is assailed principally upon the alleged ground that the evidence conclusively shows that the Tykoon claims were within the reservation. It is made to appear that in 1861 the Secretary of the Interior recommended that the President of the United States issue his proclamation ordering "that the entire valley of the Uintah River, within Utah Territory extending on both sides of said river to the crest of the first range of contiguous mountains on each side, be reserved to the United States and set apart as an Indian reservation." The President thereupon in that year by proclamation, established the reservation as recommended by the Secretary. In 1884 an official survey, under the direction of the Interior Department, was made by Daniel C. Oakes and Myrum P. Bennett, Jr., United States surveyors, which is known as the "Oakes & Bennett Survey," and which was approved by the Department of the Interior as the boundary of the reservation. The maps of that survey were certified to as being conformable to the field notes of the survey on file in the office of the Interior Department. The field notes and maps of that survey were put in evidence. According to that survey, the Tykoon claims were wholly outside and about three miles west of the reservation. In the year 1891 the government of the United States issued a patent to the plaintiff for the Tykoon claims. In 1902, by an Act of Congress, the unallotted lands in the reservation were ordered restored to the public domain on the 1st day of October 1903. That time was extended by acts of Congress...