Johnson v. Crook County

• Court: Oregon Supreme Court
• Writing for the Court: MOORE, C.J. (after stating the facts as above).
• Citation: Johnson v. Crook County, 53 Or. 329, 100 P. 294 (Or. 1909)
• Decision Date: 16 March 1909
• Parties: JOHNSON v. CROOK COUNTY. [d]

100 P. 294

53 Or. 329

JOHNSON v. CROOK COUNTY. ^[d]

Supreme Court of Oregon

March 16, 1909

Appeal from Circuit Court, Crook County; W.L. Bradshaw, Judge.

Action by Albert N. Johnson against Crook County. From a judgment for defendant, plaintiff appeals. Affirmed.

This is an action to recover taxes alleged to have been paid under compulsion. The complaint states, in effect: That the defendant is a municipal corporation and one of the political divisions of Oregon. That the plaintiff, being the owner of patented land included within the limits of public forest reservations, undertook, on July 16, 1902, to exchange the premises with the United States for unoccupied nonmineral land in Crook county, by filing in the proper local land office his application therefor, and on July 18, 1902, made a similar application for other lieu land in that county. That in the year 1903 the premises so chosen were assessed, and a tax of $364.57 was imposed thereon, which exaction casts a cloud upon plaintiff's title to the property. That the tax roll of the defendant for that year, with a warrant attached, was delivered to the sheriff, who, pursuant to the command, notified plaintiff of the amount of such tax asserting that it was just and due, and that unless it was paid he would in due time collect it by a sale of the property. That the land so selected was not liable to the assessment placed upon it that year, but notwithstanding that fact, in order to remove such cloud, the plaintiff was compelled to pay the tax, and did so, as follows: March 25 1904, $177.24; and December 15, 1904, the remainder. That the sheriff issued receipts therefor, having noted thereon "Paid under protest," which sums of money were received by the defendant for its use and benefit. That the application of July 16, 1902, was not approved by the Commissioner of the General Land Office until June, 1904 when a patent for the land so chosen was issued, but the selection of july 18, 1902, has never been confirmed. That the plaintiff demanded of the defendant the return of the money so received, but no part thereof has been paid. A demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, was sustained. The plaintiff declined further to plead, whereupon the action was dismissed, and he appeals.

Frank Schlegel, for appellant.

A.M. Crawford, Atty. Gen., for respondent.

MOORE C.J. (after stating the facts as above).

Two questions are presented for consideration: Was the tax void? If so, was it paid under such circumstances as to authorize a recovery thereof? These inquiries will be treated in the order stated. An application, under Act Cong. June 4, 1897, c. 2, 30 Stat. 36 (U.S.Comp.St.1901, p. 1541), in conformity to rule 18 of the Interior Department, as set forth in the circular of June 30, 1897 (24 Land Dec.Dept.Int. 593), to surrender to the United States an unperfected bona fide claim to land within a public forest reservation, or to reconvey to the government patented land therein, and to select in lieu thereof unoccupied nonmineral land of equal area, is an offer to exchange real property or an interest therein for other lands, to which latter premises neither an equitable estate attaches nor in which a legal title vests until the proposal is accepted by the Commissioner of the General Land Office. Pacific Live Stock Co. v. Isaacs (Or.) 96 P. 461; Cosmos Exploration Co. v. Gray Eagle Co., 190 U.S. 301, 23 Sup.Ct. 692, 47 L.Ed. 1064. While both the equitable and the legal titles thus remain in the United States, the premises selected are not subject to taxation. State v. Itasca Lbr. Co., 100 Minn. 355, 41 N.W. 276; Wisconsin, etc., R. Co. v. Price Co., 133 U.S. 496, 10 Sup.Ct. 341, 33 L.Ed. 687. It is generally held that when payment of the full consideration for public land has been made, and the receiver of the local land office, to evidence that fact, issues a final receipt, it operates to transfer such an equitable estate in the premises as immediately to render them liable to taxation, though the legal title is held by the United States until a patent is executed. Kansas P. Ry. Co. v. Prescott, 16 Wall. 603, 21 L.Ed. 373; Hussman v. Durham, 165 U.S. 144, 17 Sup.Ct. 253, 41 L.Ed. 664. This rule, however, does not apply to the case at bar, for, under the act mentioned, the receiver has no duty to perform respecting land selected, except to transmit the application and accompanying evidence to the Commissioner of the General Land Office for consideration, upon whose approval a patent is issued. Prior to such confirmation the applicant has no interest in the land that is subject to taxation.

The law in force when the tax herein is alleged to have been levied required all real property to be assessed on March 1st of each year, at the hour of 1 o'clock a.m. B. & C. Comp. § 3057. It will be remembered that the complaint states that the land selected July 16, 1902, was not approved until June, 1904, and that the selection of July 18, 1902, was never confirmed. Treating as true the averments of the complaint, which is required to be done when the sufficiency of that pleading is challenged by a demurrer, it is manifest that on March 1, 1903, the year when the plaintiff's land was assessed, the equitable estate in, and the legal title to, the premises were held by the United States. Nor can the doctrine of title by relation be invoked to uphold the tax, by carrying the plaintiff's interest in the selected land back to July 16, 1902, when he made the application, for that principle is a fiction of the law which the courts, upon broad rules of equity, apply in furtherance of justice, but never employ except when necessary to give effect to an instrument, the operation of which would otherwise be defeated. Jackson v. Ramsay, 3 Cow. (N.Y.) 75, 15 Am.Dec. 242; Gilbert v. McDonald, 94 Minn. 289, 102 N.W. 712, 110 Am.St.Rep. 368; State v. Itasca Lbr. Co., 100 Minn. 355, 111 N.W. 276.

Since the plaintiff, in the year 1903, had no equitable interest in the land alleged to have been assessed, the tax levied thereon is void. A diversity of judicial utterance is to be found...