Morrow v. Warner Valley Stock Co.

• Decision Date: 13 April 1909
• Citation: 101 P. 171,56 Or. 312
• Parties: MORROW et al. v. WARNER VALLEY STOCK CO.
• Court: Oregon Supreme Court

101 P. 171

56 Or. 312

MORROW et al. v. WARNER VALLEY STOCK CO.

Supreme Court of Oregon

April 13, 1909

Appeal from Circuit Court, Lake County; Henry L. Benson, Judge.

Action by J.L. Morrow and W.H. Cooper against the Warner Valley Stock Company. Judgment for defendant, and plaintiffs appeal. Reversed and judgment rendered.

On October 7, 1905, the defendant, a corporation, brought an action of ejectment against the plaintiffs herein to recover the possession of section 33, township 39 S., range 24 E W.M., situate in Lake county. It claims title to said lands by direct and mesne conveyances from the state as swamp land granted to it by Act Cong. March 12, 1860, c. 5, 12 Stat. 3 (Rev.St.U.S. 2490 [U.S.Comp.St.1901, p. 1591] ). The plaintiffs herein, having no defense at law, filed a cross-bill in equity against the defendant, alleging a state of facts tending to show that, by settlement and filing of pre-emption claims, and making homestead entries on the lands in dispute by plaintiff J.L. Morrow, and his three sons Jesse B., John W., and J.A. Morrow, and by making final proof thereof prior to the selection and approval by the Secretary of the Interior as swamp lands inuring to the state, the plaintiff Morrow, in his own right, and as successor to the rights of his sons, was possessed of an equitable title thereto as against the United States, the state of Oregon and its grantees, at and prior to the issuance of a patent by the United States to the state as swamp land, and that the latter and its grantees took with notice of, and subject to, such equities, but no right or title in plaintiff W.H. Cooper is shown. The bill, after averring the fact and object of the incorporation of the defendant, sets forth, with much particularity of detail, the times and circumstances of the different applications made by the defendant's grantors to the board of land commissioners of this state to purchase large tracts of swamp lands comprising thousands of acres, which were entirely, or for the most part, unsurveyed at the time such applications to purchase were made; that such applications to purchase were pretended to be made under the provisions of the act of October 26, 1870 (Laws 1870, p. 54), of this state, providing for the selection and sale of swamp and overflowed lands coming to the state under the said act of Congress, but that all of these applications to purchase, and the purchase thereof, were ultra vires of the act of 1870, and therefore void; that the land was not, in fact, swamp and overflowed lands within the intent and meaning of the act of Congress of March 12, 1860, but at that time they constituted the permanent bed of Warner Lake, which, since about 1880, has from natural causes gradually receded, and the bed thereof has become dry agricultural land, suitable for cultivation by the usual and ordinary methods, and had not been selected nor listed as swamp or overflowed lands by the state of Oregon, or by the United States, at the time plaintiffs settled and filed thereon; in substance, that on November 20, 1885, the land involved herein was vacant and unappropriated land of the United States, and unsurveyed, excepting lots 1, 2, 3, and 4 of said section, and was dry, agricultural land, suitable for settlement and cultivation by the ordinary processes of farming, and had not been selected or listed by the state as swamp land, or by the Secretary of the Interior; that on that date plaintiff J.L. Morrow, and his three sons, Jesse B., John W., and Joseph A., being citizens of the United States, over the age of 21 years, and qualified to acquire title to public lands from the United States under the pre-emption and homestead laws, severally settled and established their residence upon a specified one-fourth of said section 33, with the intent then and there to acquire title to the same under the provisions of the pre-emption or homestead laws of the United States, and that each continued to reside upon, cultivate, and hold possession of such premises in good faith, with the intention to acquire title thereto under the pre-emption or homestead law, and in full compliance therewith, until said land was surveyed on January 15, 1889, by the proper authorities of the United States, and thrown open for settlement, entry, and purchase; that on that date Jesse B. Morrow filed a pre-emption claim, No. 3,376, upon lots 1, 2, 3, 4, 5, 6, 7, and 8 of the section, in the United States land office at Lakeview, Or., and paid all fees therefor required by law, received his receipt, and continually resided upon, cultivated, and improved said land in good faith, and in full compliance with the law until August 4, 1903, when he duly made his final proof before the land office of his settlement, residence, and cultivation of the land, and paid the price thereof at the land office, and received his final certificate or receipt from the receiver, entitling him to a patent; that on the same date John W. Morrow filed a pre-emption claim upon the south one-half of the north one-half of the section, and, after complying with all requirements of the law, made final proof May 15, 1903, paying the purchase price thereof and obtained the receiver's receipt therefor; that on the same date Joseph L. Morrow filed a homestead claim on the north half of the south half, and made final proof thereon on June 3, 1895; that Joseph A. Morrow filed a pre-emption claim on the south half of the south half of the section, more correctly described as lots 9, 10, 11, and 12, which he afterwards commuted into a homestead, and made final proof July 5, 1895; that after the sons had made final proof and paid the purchase price, they sold and conveyed their respective rights to their father, J.L. Morrow, who is now the owner of the equitable title thereto, and entitled to a conveyance. It is also alleged that the defendant by false and forged affidavits, on June 23, 1899, respecting the reclamation of said lands, procured a deed from the state to the premises described in the complaint, excepting lots 1, 2, 3, and 4, which had previously been deeded to R.F. and Martin McConnaughy; that on October 6, 1903, the defendant by fraudulent means procured from the United States government a patent to the state of Oregon for a very large amount of lands, including the lands herein, which patent was issued without the request, and over the protest, of the Governor of this state, who has refused to accept such patent on behalf of the state, but that the same was delivered to the defendant as the agent of the state. The prayer is in the alternative, either to have declared void the various deeds from the state to the defendant and its grantors, and also the patent from the United States to the state; or, if the effect of the issuance of the patent to the state was to pass the legal title, then to have the defendant declared to be plaintiff's trustee and require a conveyance. The answer denies that the character of the land in controversy is as alleged in the complaint, but alleges that it was swamp and overflowed land at the date of the grant to the state; denies that any part thereof was ever thrown open to settlement under the laws of the United States, except subject to the claim of the state of Oregon as swamp land; admits that each of the plaintiffs' filings were made as alleged, but avers that each of them was made subject to the claim of the state of Oregon as swamp land, and alleges that, on May 7, 1903, the pre-emption and homestead filings and final proofs of each were canceled by order of the Secretary of the Interior. It is affirmatively averred, as a further defense, that prior to the making of the pre-emption and homestead filings by plaintiff and his grantors the state had selected all of this land as inuring to it under the grant of March 12, 1860, and that lists of such selections made by the state were then on file in the United States land office at Lakeview; that under the rules of practice of the General Land Office of the United States a party could make a homestead entry or file a pre-emption declaratory statement, upon land selected by the state as swamp land, by filing in the local office his affidavit, corroborated by the affidavit of two witnesses, to the effect affidavit had been filed, it became the duty of the register and receiver of the land office to allow such entry or filing, and to notify the Governor of the state of such entry; and, unless the Governor applied for a hearing to determine the character of the land within 30 days, the claim of the state became canceled; that the local land office officials complied with that rule, and on February 1, 1889, the state of Oregon, by Sylvester Pennoyer, then Governor, applied to the local land office for a hearing to determine the character of the land; that a hearing was had, and, after various decisions had been made by the Interior Department, the Secretary of the Interior, on March 13, 1903, decided that all the land in controversy was on March 12, 1860, swamp and overflowed land, and was thereby rendered unfit for cultivation; that at the same time he made an order canceling plaintiff's homestead entry, and thereafter, on May 7th following, all of the pre-emption entries covering said lands were canceled; that the conveyance by plaintiff's sons to him of their respective claims was by deed executed after the entries, but before the issuance of any receipt, or the making of final proof thereon. A reply having been filed, which denied the new matter of the answer, a trial was had, resulting in findings and a decree in favor of the defendant.

A.M. Crawford and E.B. Watson, for appellants.

E.E. Coovert, for respondent.

SLATER J. (after stating the facts as above).

The principal effort of counsel for plainti...