Jones v. Callvert

• Decision Date: 08 September 1903
• Court: Washington Supreme Court
• Parties: JONES v. CALLVERT et al., State Land Com'rs.

73 P. 701

32 Wash. 610

JONES v. CALLVERT et al., State Land Com'rs.

Supreme Court of Washington

September 8, 1903

Appeal from Superior Court, Snohomish County; John C. Denney, Judge.

Action by C. W. Jones against S. A. Callvert and others, state land commissioners. From a judgment in favor of plaintiff defendants appeal. Reversed.

W. B Stratton, for appellants.

B. E Padgett, for respondent.

DUNBAR J.

The respondent made application to the Commissioner of Public Lands to purchase the lands involved in this case. The application was rejected by the Board of State Land Commissioners on the theory that the state had no authority to sell or dispose of said lands because they were within the boundaries of the Tulalip Indian reservation. The respondent appealed from the decision of the board to the superior court of Snohomish county, which reversed the ruling of the Board of State Land Commissioners, and held that the lands applied for were subject to sale by the state as prescribed by law, and judgment was entered accordingly. From this judgment the Board of State Land Commissioners appealed.

It is conceded that the lands are within the boundaries of the above-named Indian reservation, but it is claimed by the respondent that they are not embraced in said reservation, excepting through executive order of the President. A patent for a portion of these lands was, on the 1st day of April, 1885, issued and delivered to Richard Lawrence, and on the 1st day of July, 1884, a patent for the remainder of the tract was issued and delivered to Jack Wheeler and his wife. It is true that this patent incorrectly stated the name of the wife of said Wheeler, and on account of said error the original patent was, during the year 1902, surrendered to the United States, and another patent, exactly like the original except as to the date and the name of Wheeler's wife, issued and delivered in its stead to said Wheeler and his wife, Nancy. But in substance the lands were patented lands prior to the formation of the state government. We are satisfied from the record that the lands applied for were strictly within the limits of the Indian reservation, but, even if this were not true, the law provides for the executive proclamation which was made in this case, and under such proclamation they are legally within the boundaries of said reservation.

A great deal of discussion has been indulged in upon questions which it seems to us have been settled by the decisions of this court. It may be conceded that at common law the title to lands which were overflowed by the tide was in the king for the benefit of the nation, and that, as a matter of history upon the settlement of the colonies, the rights which were held for the benefit of the nation passed to the colonies, or to the grantees of the charters granted by the king for the benefit of the communities to be established; that, when the colonists obtained their independence, the same rights were held by the government in trust for the states which were to be carved out of the general government, and that the same rule applies to the territory acquired by the United States government since its organization. This is the general and undoubted rule; but it is equally well established, we think, that the government may prescribe limitations upon the use and ownership of these lands, and, whatever may have been the decisions on this question--and they have been more or less conflicting--under the later cases of Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38...