Gauthier v. Morrison

• Decision Date: 25 March 1911
• Court: Washington Supreme Court
• Parties: GAUTHIER v. MORRISON et al.

114 P. 501

62 Wash. 572

GAUTHIER v. MORRISON et al.

Supreme Court of Washington

March 25, 1911

Department 1. Appeal from Superior Court, Spokane County; W. A. Huneke Judge.

Action by Edwin L. Gauthier against Peter Morrison and others. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

Skuse & Morrill and F. H. McDermont, for appellant.

Voorhees & Canfield, for respondents.

MOUNT J.

The plaintiff brought this action, seeking to have the court adjudge that he is entitled to possession of the land described in the complaint, and that the defendants have no right to possession thereof. The defendants demurred to the complaint, upon the ground that the court had no jurisdiction of the subject-matter, and that the complaint did not state facts sufficient to constitute a cause of action, and upon other grounds. The trial court sustained this demurrer, and the plaintiff electing to stand upon the allegations of his complaint, the action was dismissed. Plaintiff appeals.

The complaint alleged: 'That in the year 1877 the government of the United States caused to be surveyed townships twenty-four (24) and twenty-five (25) north of range forty-five (45) east, Willamette meridian, and the same were surveyed during said year by a surveyor employed for that purpose by the government of the United States under a contract entered into between the United States and said surveyor, and such surveyor in making said survey, among other instructions issued to him by the government of the United States in regard to his duties in making such survey was instructed as follows: 'You are also to meander in manner aforesaid all lakes and deep ponds of the area of twenty-five acres, and upwards; also navigable bayous shallow ponds readily to be drained or likely to dry up are not to be meandered'; said instructions being a part of the manual of instructions relating to the public surveys, prepared at the General Land Office and bearing date February 22, 1875; that notwithstanding such instructions and in violation of his duty and of his contract in making the survey of said townships twenty-four and twenty-five north of range forty-five (45) E., W. M., the said surveyor failed and neglected to include within the survey of said townships all of the land therein, and failed to survey all of the lands within said townships, but did meander and failed to survey a portion of sections four (4) and five (5) in said township twenty-four and a portion of section twenty (20), twenty-eight (28), twenty-nine (29), thirty-two (32), and thirty- three (33) in said township twenty-five, and in such survey wrongfully, erroneously and fraudulently designated the lands in said sections lying the being within the meandered lines as made by such survey, as a lake, and by so doing wrongfully, erroneously and fraudulently designated by means of such survey an area of land within such townships in a contiguous body, containing approximately twelve hundred (1,200) acres and lying and being within said meandered lines as aforesaid, as a lake, and wrongfully, erroneously and fraudulently failed and neglected to survey the same, or any part thereof, and no part thereof has since been surveyed by the government of the United States, and has never been alienated or disposed of by the government of the United States, and all of the said lands within the said meandered lines ever since have been and are now unsurveyed government lands belonging to the government of the United States as a part of its public domain and subject to, and open for, settlement under the homestead laws of the United States; that the said lands lying and being within the meandered lines as made by the survey of said townships and said sections as aforesaid, were not at the time of such survey and not now, and never have been a lake covered by a permanent body of water, and were at the time of such survey, and for a long time prior thereto, partially subject to overflow during the wet seasons of the year, with none or little water thereon during the dry sasons of the year, the most of it hay meadow, upon which meadow grasses and other kinds of grasses suitable for hay grew each season, with some swampy or marshy portions at or near the conter, upon the most part of which said swampy or marshy portions cat-tails, tules, bulrushes and other kinds of swamp vegetation grew each season, and all thereof likely to dry up and susceptible of being readily and easily drained, and at the present time, and for several years last past, all of the lands within said meander lines as made by said survey are good agricultural lands susceptible of cultivation and susceptible of being used, occupied and farmed and grown to hay, grain and other crops the same as any other good agricultural land; that on the 30th day of October, 1909, this plaintiff, in good faith as a homestead settler, and for the purpose of thereafter making a homestead entry thereon and acquiring title thereto from the government of the United States under the homestead laws, made settlement upon that part and portion of the lands lying and being within the meandered lines as made and shown by the survey as hereinbefore set forth, which, when surveyed, would be described as follows, to wit: The northeast quarter of the southwest quarter (N. E. 1/4 S.W. 1/4), part of the northwest quarter of the southeast quarter (N.W. 1/4 S.E. 1/4), and the southwest quarter of the southeast quarter (S. W. 1/4 S.E. 1/4) of section thirty-three (33), township twenty-five (25) north of range forty-five (45) east, Willamette meridian, containing seventy-five (75) acres more or less.' The complaint then alleges that the plaintiff is a qualified entryman under the homestead laws of the United States, and that at the time he settled upon the said land no one resided on any part thereof, but that defendants have heretofore wrongfully occupied and cultivated the said lands, and are now wrongfully attempting to occupy and control the same, and have unlawfully prevented the plaintiff from occupying the lands.

It is apparent that this is a possessory action, and while the complaint alleges a right in the plaintiff this allegation is but a conclusion. Before the plaintiff may be adjudged to have the right of possession, it must appear that the land sought is subject to the right which the plaintiff demands. He can obtain no right to the land or its possession by reason of the fact that the defendants have no right or are trespassers. As we said in George v. Columbia & Puget Sound R. Co., 38 Wash. 480, 483, 80 P. 767, 768: 'Whatever may be the technical law on this subject, it is unimportant here, for the reason that in this kind of an action the plaintiff, if he prevails at all, must prevail upon the strength of his own title, and not upon the weakness of that of his adversary. The basis of this complaint is a possessory right.'

Appellant's right to possession is necessarily based upon the character of the land; that is, if the land is vacant, unsurveyed, public land, subject to settlement and possession by the plaintiff under the homestead laws of the United States, then he has shown a right; otherwise he has none. The complaint recites that in the year 1877 the government of the United States caused townships 24 and 25 north, range 45, to be surveyed by a surveyor employed for that purpose; that such surveyor did meander the land in dispute, and wrongfully and fraudulently designated such lands as a lake; that said lands within the meandered lines were not, and never have been, a lake covered by a permanent body of water, but were swampy or marshy at or near the center, and were susceptible of being readily and easily drained, and are good agricultural lands susceptible of being occupied, cultivated, and farmed. It is at once apparent from these allegations that the government, through its land department, has classified these lands as a lake, and therefore the land is not subject to settlement under the homestead laws; and that the object of this action is to have the state courts declare that the government, through fraud of its agent, holds the land as water, when in fact it is land which is unsurveyed. The government is not a party to this action, and, of course, such judgment, if finally made in this case, would not be binding upon the government. It has been held since early times that the exclusive control of the public lands rests in the Interior Department, and remains there until patent has issued and title has passed from the government; and that there is no jurisdiction in the courts to control either the public lands or the action of the government in connection therewith, until patent has issued and the land ceases to be public lands. Until that time, all questions affecting the status of government land rest exclusively in the government. The question then is, Have the state courts jurisdiction to determine questions involving the character or disposition of land by the United States, or the action of the Interior Department in regard thereto?

Section 453, Rev. St. U.S. (page 257, U.S. Comp. St. 1901), provides 'The Commissioner of the General Land Office shall perform, under the direction of the Secretary of the Interior all executive duties appertaining to the surveying and sale of the public lands of the United States, or in any wise respecting such public lands, and,...