McComas v. Northern P. Ry. Co.

• Decision Date: 30 January 1917
• Citation: 82 Or. 639,162 P. 862
• Parties: MCCOMAS v. NORTHERN PAC. RY. CO. ET AL.
• Court: Oregon Supreme Court

162 P. 862

82 Or. 639

MCCOMAS v. NORTHERN PAC. RY. CO. ET AL.

Supreme Court of Oregon

January 30, 1917

In Banc.

Appeal from Circuit Court, Umatilla County; Gilbert W. Phelps Judge.

On petition for rehearing. Former opinion modified.

For former opinion, see 161 P. 562.

Charles A. Hart and Carey & Kerr, all of Portland, for appellants. Raley & Raley, of Pendleton, for respondent.

MOORE J.

In a petition for a rehearing it is contended that the defendant the Northern Pacific Railway Company, which will hereafter be called the company, holds a legal title to only one of the disputed tracts of land, that the United States is vested with such title to the other parcels of the controverted real property, of which latter premises the state courts have no jurisdiction, and that, this being so an error was committed in not reversing the decree. The transcript shows that lots 2 and 4 in section 5, lots 1 and 2, the north half of the northeast quarter, and the northeast quarter of the southwest quarter of section 7, in township 5 north of range 30 east of the Willamette meridian, were selected November 23, 1872, as swamp lands by the state of Oregon, which on August 10, 1892, and March 15, 1895 executed deeds therefor to the plaintiff's grantors and predecessors. The company, asserting a right to these lands by virtue of an act of Congress, received from the United States patents for the northeast quarter of the southwest quarter of section 7, June 8, 1906; for lots 1 and 2 in that section, December 31, 1907; and for lot 2 in section 5, May 4, 1909. After this suit was commenced the company considering these tracts of land were excluded from the operation of its grant by reason of the state's definite location of swamp land selection, and assuming that the patents referred to were erroneously issued, executed to the United States, December 4, 1912, a deed for the real property last described, which deed was duly recorded in the proper county. Thereafter the company filed in the local land office at La Grande, Or., its mineral indemnity selection for these lands, and on May 25, 1914, pursuant to such choice, it received from the United States a second patent for the northeast quarter of the southwest quarter of section 7. The General Land Office rejected the state's selection of lot 4 in section 5, and the north half of the northeast quarter of section 7, for which latter real property the company also filed mineral indemnity selections.

The former opinion in this cause proceeds upon the theory that the company was unquestionably vested with the naked legal title to the northeast quarter of the southwest quarter of section 7, for which it had received the second patent, but that its right to such land was barred by the adverse occupancy of the premises by the plaintiff and his grantors and predecessors. As to the other tracts for which patents had been received by the company, but which it had attempted to deed to the United States, the naked legal title might well be regarded as being held by the company notwithstanding the signing and recording of its deed. Like any other contract, a deed, to be valid, requires the aggregatio mentium of the grantor and the grautee. In the...