Kennedy v. United States, 9614.

• Decision Date: 19 April 1941
• Docket Number: No. 9614.,9614.
• Citation: 119 F.2d 564
• Parties: KENNEDY v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

119 F.2d 564 (1941)

KENNEDY v. UNITED STATES.

No. 9614.

Circuit Court of Appeals, Ninth Circuit.

April 19, 1941.

D. V. Mulhern and B. H. Gibbs, both of Phoenix, Ariz., for appellant.

Norman M. Littell, Asst. Atty. Gen., Frank E. Flynn, U. S. Atty., of Phoenix, Ariz., and John P. Dougherty, Asst. U. S. Atty., of Tucson, Ariz., and Charles R. Denny and Frank J. Dugan, Attys., Department of Justice, both of Washington, D. C., for appellee.

Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

In this action it was ordered, adjudged and decreed by the District Court "That defendant be and hereby is enjoined and restrained from occupying and grazing livestock on land embraced within" a certain designated survey township in the State of Arizona.

The defendant below appeals upon two grounds. One of the grounds of appeal is that the court was and is without jurisdiction because, as he asserts, the issue of the case lies solely within the jurisdiction of the Land Department of the Federal Government, and cites Cameron v. United States, 252 U.S. 450, 40 S.Ct. 410, 64 L.Ed. 659, as authority. We do not consider that the cited case pronounces such doctrine, and we are convinced that the appellant is wrong in his contention.

In the Cameron case it was held that an issue as to whether or not land of the public domain was mineral, tried before the Land Department and held to be non-mineral, was not to be relitigated in an action brought by the Government to oust the claimant from possession of the land. This case, however, supports the jurisdiction of the District Court in entertaining a case to enjoin the occupancy of public land sought to be used by the Government for purposes of its own. In our case, as will presently be seen, the Government's proposed use of the land was to include it in a Grazing District under the Taylor Grazing Act, 43 U.S.C.A. § 315. The Government considered Kennedy as a mere trespasser, and appellant sought unsuccessfully to establish that he was more than a trespasser because of some right as a settlor upon the lands, the subject matter of the action. We think Judge Bourquin put the matter well and as succinctly as we could do it in the case of United States v. Schultz, D.C.Cal. 1929, 31 F.2d 764: "The courts are always open to private litigants to determine possessory rights in public land. Gauthier v. Morrison, 232 U.S. 452 461, 34 S.Ct. 384, 58 L.Ed. 680. Not to determine title, however, because they have not title. But the United States having title, the tribunals are always open to it to vindicate its rights therein, either that of the Land Department or that of the courts, at its election if proceedings are initiated by it. See United States v. Sherman 8 Cir. 288 F. 497."

The other ground of appeal is that by the findings of fact the judgment should have gone against the plaintiff.

On December 1, 1931, defendant-appellant Kennedy erected a tin house, dug a well and marked the boundaries of 640 acres of vacant unappropriated public land of the United States, all of which was open to entry under the stock-raising homestead laws and all of which he believed was unsurveyed land, but a portion of which in fact was surveyed land.

From the findings of fact there is no direct statement as to the purpose or intention of Kennedy in going upon the land. However, since there is mention in the findings of the stock-raising homestead act and the parties in their briefs and oral argument assume that Kennedy had such a homestead in mind when he entered upon the land and made his small improvements, we shall proceed upon the same premise.

Kennedy is a World War veteran and is entitled to 18 months deduction from the time required to get a patent upon homestead land. 43 U.S.C.A. § 272. This fact will be referred to later more particularly.

Kennedy lived in the tin house about three months in the year following December 1st, 1931, the date of first occupancy, "and returned thereto to remain for short intervals * * *" and "between December, 1931 and April, 1937, he resided on the land 2 or 3 months out of each year in periods of various lengths, the total residence amounting to approximately 35 months up to December, 1939". (The trial was had November 28th, 1939.) Kennedy has never filed with any Land Office or any land official of the Government any notice or statement of any kind relating to his settling upon or entering the land.

As above stated, it turned out that a portion of the 640 acres was surveyed, and this portion in some manner, not questioned by Kennedy, passed to the ownership of the State of Arizona in the year 1934. But the whole tract of 640 acres was open for stock-raising homestead entry when Kennedy settled upon it and remained so until some time in 1934. By Executive Order of November 26th, 193...