Ferry v. Street

• Decision Date: 04 August 1885
• Citation: 7 P. 712,4 Utah 521
• Court: Utah Supreme Court
• Parties: EDWARD P. FERRY, RESPONDENT, v. JOHN L. STREET, APPELLANT

7 P. 712

4 Utah 521

EDWARD P. FERRY, RESPONDENT, v. JOHN L. STREET, APPELLANT

Supreme Court of Utah

August 4, 1885

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial. The facts are fully stated in the opinion of the court on the rehearing.

Affirmed.

Mr Presley Denny, for appellant.

As to the first: Sections numbered 16 and 36 in each of the territories, etc., "Shall be reserved for the purpose of being applied to schools in the several territories, and in the states hereafter to be erected out of the same:" Sec. 1946, Revised Statutes, Comp. Laws, p. 48.

In the Organic Act the language is, "it shall be, and the same are hereby reserved, for the purposes, etc." Sec. 13 Organic Act, p. 34.

In this case the patent being for lands on section 16, which were reserved from sale, and appropriated, was issued without authority of law, and the officers had no authority to issue the same.

It has always been the policy of the government to set aside sec. 16 of every township for the maintenance of public schools. The ordinance of 1787 being the first enactment: Cooper v. Roberts, 18 How., 177.

This suit was in ejectment for a part of section 16. The court say, plaintiff's case affirms, that this section had been appropriated to the State of Michigan for the use of schools: p. 176.

The appropriation of public lands, for that object, became a fundamental principle by the ordinance of 1787, which settled the terms of compact between the people and states of the northwestern territory, and the original states, unalterable except by consent: 18 How., 177; 21 Wal., 660, 670.

In Ham v. State of Missouri, 18 How., 126, the court in commenting upon the acts of March 6th, 1820, and July 19th, 1820, says, "that it amounts not merely to a grant for the use of schools, of the 16th section, but to a positive condition or mandate, so far as Congress can make it, for the dedication of those sections to that object:" p. 131.

"Such lands were appropriated to a specific and permanent purpose, and as to these lands, sales, and every other disposition, inconsistent with such dedication, were expressly inhibited:" Id., 131, 132.

The instructions, given and refused in that case (p. 130), which the supreme court say, were correct, decide, that the various acts of Congress with reference to sec. 16, operate as a grant, for the use of schools, and that such reservation, attaches to private land claims which had previous to such donation, been claimed by individuals: See also Kissel v. St. Louis Public Schools, 18 How., 19; Minnesota M. Co. v. The National M. Co., 11 Mich. 186; Wilcox v. Jackson, 13 Pet., 498; Gaines v. Nicholson, 9 How., 539.

In 11th Mich. above, the plaintiff who claimed a U. S. patent and selection made in 1845, insisted, that until the 16th section had been identified by survey of public lands, the Federal Government had power to dispose of such lands.

The survey was not made until 1847. But the court says, "from the policy of the government it was never intended to authorize the sale by the United States of any lands, which might fall within sec. 16."

In Kissel v. St. Louis Schools, the act reserving certain lands was passed in 1812, they were not surveyed until 1840. The school lands were not designated until 1843, an entry was made in 1836, under the pre-emption laws of 1814 and 1816, yet the court held that such lands were appropriated and not subject to sale or entry: p. 27.

In the United States v. Carpenter, 111 U.S. 349. "The lands were reserved, the entry void. It matters not whether the lands had been surveyed or not."

But these lands were surveyed and section 16 known when located with the scrip. The northern line of section 16 had been run officially. Section 9 and the tier of sections north, in the same township, had been surveyed and returned to the land office officially, and the whole section surveyed prior to location.

Where the United States agreed to grant a certain quantity of lands to be selected after the lands had been surveyed, but before they were surveyed or selected, the reservee deeded his interest, it was held, his title passed: Doe v. Wilson, 23 How., 457.

The language of the acts reserving sections 16 and 36 to the territory, effectually withdrew said lands from sale, and on the admission of the territory, it would become the owner absolutely: Higging v. Houghton, 25 Cal. 260; Thompson v. True, 48 Cal. 601.

The patent being for land reserved, was issued without authority of law, and void. The officer had no authority to grant it: Patterson v. Winn, 11 Wheat., 380; United States v. Stone, 3 Wall, 535; Stoddard v. Chambers, 2 How., 318; Parker v. Duff, 47 Cal. 554, 562.

And it is competent for the defendant, in an action of ejectment to attack the validity of the patent, on the ground that the land was excepted from the grant: McLaughlin v. Heid, 63 Cal. 208.

In the above case the defendant had not even preempted or filed upon the land, but as he had tried to, the supreme court said, he had sufficient interest to attack a patent.

It can be shown that lands are swamp in suits for possession, why not then that they are mineral lands: Thornton v. Thurston, 28 Cal. 603; Kyles v. Tibbs, 23 Cal. 432; Robinson v. Forrest, 29 Cal. 320.

The validity of a patent purporting to grant lands which the officers had no authority, may be controverted in any action directly or indirectly. The patent is void and defendant in ejectment may prove the facts showing its invalidity: Carr v. Quigley, 57 Cal. 394; McLaughlin v. Heid, 63 Cal. 208.

Messrs. Sutherland & McBride, and Mr. Arthur Brown, for respondent.

A patent not void on its face is evidence of a valid grant without further proof: Bagnels v. Broderick, 13 Pet., 450; Grant v. Smith, 26 Mich. 204; Polk v. Wendel, 9 Cranch, 87; Clark v. Hall, 19 Mich. 372; Winter v. Cromelin, 18 How., 88; Smelting Co. v. Kemp, 104 U.S. 639; Darfer v. Plaisted, 38 Cal. 80; Steel v. Smelting Co., 106 U.S. 454; Parleys Park M. Co. v. Kerr, 3 Utah, p: 235.

It is conclusive against intruders, that is, against all persons who do not connect themselves with that source of title: Smelting Co. v. Kemp, 104 U.S. 640, 641.

A person who but for the patent is shown to own the land, may at law attack the patent on the ground that the officer making it had no power: Sherman v. Buick, 93 U.S. 216; Smelting Co. v. Kemp, 104 U.S. 646-7.

The defendant does not connect himself with the source of title, nor did he show, or offer to show any fact to affect the authority of the officers who issued the patent.

The act under which the patent issued is brought before the court by the reference to it in the patent. It authorized the location of the scrip on any vacant unappropriated land of the United States, not mineral, whether surveyed or unsurveyed.

The non-mineral character was a fact to be determined by the Land Department, and the determination is conclusive like a judgment: Smelting Co. v. Kemp, supra.

The only claim of the appellant in respect to a prior appropriation is the provision in the territorial acts of Congress looking to a future dedication of sections 16 and 36 to school purposes.

No present reservation or appropriation is declared: Sec. 15, Organic Act; sec. 1946, C. L. Utah, pp. 34, 48; Heydenfeldt v. Gold etc. Co., 93 U.S. 634; Copp. Min. L., 105 et seq.

Until survey no such sections could be recognized in the Land Office. This scrip was located on this land while unsurveyed.

EMERSON, J. ZANE, C. J., and TWISS, J., POWERS, J., concurred. BOREMAN, J., having been of counsel, took no part in the decision of this case.

OPINION

EMERSON, J.:

The form of this action is one for the possession of real estate, situated in the town of Park City. The plaintiff claims title under the patent of the United States, and by mesne conveyances to the plaintiff from the patentee. No question is made as to the existence of the patent, or the title deraigned therefrom in plaintiff; but in this action at law, for the recovery of possession, the defendant seeks to assail that patent, on the following grounds:

First. The premises, in truth, did describe a part of section 16, and that, therefore, they were not open to settlement, and the plaintiff and his grantor had no right to patent the same, for the reason that it was a school section, and the authorities were forbidden to patent the same to settlers.

Second. That the said lands were mineral lands, and, therefore, not open to claims of settlers.

Third. That the said lands were occupied by people squatted thereon, and claiming to be a city, to-wit: Park City.

We will determine these three objections in their order. The plaintiff procures his title under the scrip known as Valentine scrip. The authority for the issuing of which is to be found under an act of Congress approved April 5, 1872 which authorizes the holders of such scrip to enter unappropriated lands of the United States, and the first question involves the inquiry as to what is the meaning of appropriated or unappropriated. It is complained by the appellant that lands which may possibly fall in section 16 or 36, although not then surveyed, are appropriated. On the other hand, it is contended that the only appropriation of the lands which fall within sections 36 and 16, is when they are surveyed and found to be such sections by official survey; and until such survey, the lands are open for any appropriator, and a person seeking to pre-empt or to homestead on such lands has always to be recognized as one entitled to enter thereon, and his right has to be protected, although afterward the number of this section turned out to be 16 or 36. The Valentine scrip was not more limited. The...