Pengra v. Munz

• Decision Date: 14 February 1887
• Citation: 29 F. 830
• Parties: PENGRA v. MUNZ.
• Court: U.S. District Court — District of Oregon

29 F. 830

PENGRA v. MUNZ.

United States Circuit Court, D. Oregon.

February 14, 1887

(Syllabus by the Court.)

On March 12, 1860, (12 St. 3,) congress granted the lands that were 'wet and unfit for cultivation,' within the limits of Oregon, to the state, to be selected by the state from the lands thereafter surveyed, 'within two years from the adjournment of the legislature at the next session after notice by the secretary of the interior to the governor of the state that the surveys have been completed and confirmed,' and then certified by the secretary of the interior, if found to come within the operation of the act and patented to the state, on which the fee shall vest in the state. On July 2, 1864, congress granted to the state, to aid in the construction of a military wagon road from Eugene to the eastern boundary of the state, the 'alternate sections of the public lands, designated by odd numbers, for three sections in width on each side of said road,' as the same may be located. On October 24, 1864, the legislature of the state transferred this grant to the Oregon Central Military Road Company, who in due time constructed the road. On December 27, 1868, the survey of section 21, in township 36, of range 14 east of the Wallamet meridian, was duly confirmed, of which fact the governor of the state had due notice before the session of the legislature held in 1868. On April 18, 1871, the secretary of the interior, on the recommendation of the commissioner of the general land-office, approved the selection of section 21, under the wagon-road grant, and certified the same to said road company as the grantee of the state. On September 16, 1882, said section 21 was erroneously included in a list of lands then certified by the secretary to the state under the swamp-land act, and on January 4, 1883, the commissioner, as to said section 21, recalled said certificate, as having been erroneously made, and notified the governor of the state thereof. On May 11, 1877, the defendant purchased the E. 1/2 and the S.W. 1/4 of section 21 from the state land commissioners, under the act of October 26, 1870, for the sale of swamp lands, paying $96 down, and the balance ($480) on December 12, 1883, when he received a deed therefor from said commissioners. Held: (1) The swamp-land act is a grant to the state on the condition precedent that the selection of lands thereunder is made within the time limited therein, and on failure to do so, the grant lapsed and became of no effect. (2) The legal title to land selected under the swamp-land act does not vest in the state until a patent is issued therefor, which patent, when issued, relates back to the date of the grant. (3) By section 2 of the act of 1860 the duty is devolved on the state to select the lands it claims under the swamp-land act, and present the same for the consideration of the secretary of the interior, whose duty it is to ascertain and determine whether the selections are 'wet and unfit for cultivation,' within the meaning of said act; and his determination of the question of fact cannot be impeached or questioned elsewhere except in a court of equity for fraud or mistake other than an error of judgment. (4) It was also the duty of the secretary of the interior, by virtue of his general control over the subject of the disposition of the public lands, to ascertain and determine what lands inured to the state or its grantee, the wagon-road company, under the wagon-road grant of 1864, and when he determined that said section 21 inured to the wagon-road company under said act he thereby determined that it did not inure to the state under the swamp-land grant. (5) The certification of section 21 to the state as swamp land by the secretary was a mere clerical error that the department had a right to correct as it did; but the section having already been certified to the grantee of the state under the wagon-road grant, such second certification was simply void and of no effect. (6) The state having in effect procured section 21 to be certified to the plaintiff's grantor under the wagon-road grant, the defendant, as the grantee of the state, is estopped, as against the plaintiff, to assert or maintain that said section ever inured to the state under the swamp-land grant.

A cause of action for damages for withholding the possession of real property may be joined with one for the possession of such property, but it must be separately stated, and the statement must contain all the facts necessary to support a separate action thereon.

A tenant cannot, during his term, nor during the possession taken or acquired under the lease, deny his landlord's title.

George H. Williams, Cyrus Dolph, and Joseph Simon, for plaintiff.

William H. Effinger and Edward Watson, for defendant.

DEADY J.

This action is brought to recover the possession of the W. 1/2 of section 21, in township 36 S., of range 14 E. of the Wallamet meridian.

It is alleged in the complaint that the plaintiff is the owner in fee of the premises, and is entitled to the possession thereof, which the defendant wrongfully withholds from him to his damage $1,000. And, by way of giving the court jurisdiction of an action between parties who do not appear to be citizens of different states, it is further alleged that the plaintiff derives title to the premises under the act of congress of July 2, 1864, entitled 'An act granting lands to the state of Oregon to aid in the construction of a military road from Eugene to the eastern boundary of said state;' that the defendant claims to hold said premises under the act of congress of March 12 1860, entitled 'An act to extend the provisions of an act to enable the state of Arkansas and other states to reclaim the swamp lands within their limits, to Minnesota and Oregon, and for other purposes;' whereby the question arises through which of these acts the title of the land passed from the United States; and that the same exceeds in value the sum of $500.

In his answer the defendant denies the allegations of the complaint concerning the ownership and right to the possession of the premises, and alleges that he is the owner of and entitled to the possession of the same; which allegations are controverted by the replication.

The case was tried by the court without the intervention of a jury.

The evidence given on the trial consists of certain documents admitted, under stipulation, for their legal effect, and certain oral testimony concerning the value of the use and occupation of the premises, and of a certain fence and ditch which the defendant claims to have constructed on the premises, and also on the question of whether the land is in fact swamp land or not, which oral evidence was received subject to objections for incompetency.

The material facts on which the plaintiff founds his claim are these:

On July 2, 1864, congress, for the purpose of aiding 'in the construction of a military road' from Eugene to the eastern boundary of the state, granted to the state the 'alternate sections of the public lands, designated by odd numbers, for three sections in width on each side of said road,' to be disposed of by the legislature for such purposes. 13 St. 355. The act contains a proviso reserving from its operation 'all lands heretofore reserved to the United States by act of congress or other competent authority. ' Provision is also made in the act for the disposition of the land when and as often as the governor of the state 'shall certify to the secretary of the interior that any ten continuous miles' of the road are completed. The road was to be completed within five years, and, if not, the land then undisposed of was to revert to the United States. But by the act of March 3, 1869, (15 St. 338,) the time for its completion was extended to July 2, 1872. On October 24, 1864, (Sess. Laws, 37,) the state transferred the grant to the Oregon Central Military Road Company, for the purpose and upon the conditions and limitations' contained in the act of congress making the same. On September 5, 1868, the township 36 south, range 14 east, was surveyed, and the survey approved on December 27th of the same year, of which the governor of the state had due notice before the meeting of the legislature in 1868. On February 16, 1869, the road company filed with the governor of the state a map of the location and line of the road from Eugene to the eastern boundary of the state; and on January 12, 1870, the governor certified that the road, as delineated on said map, was completed, as required by the act of congress and the state legislature, which map and certificate were filed with the secretary of the interior on or before February 28, 1870. On April 18, 1871, the commissioner of the general land-office recommended for approval a list of lands, numbered 2, and described as 'lands 'in place,' granted to the state of Oregon' by the acts of congress of 1864 and 1869 aforesaid, 'to aid in the construction of a military road' from Eugene to the eastern boundary of the state, which includes the aforesaid section 21, 'subject to any valid interfering rights which may have existed at the date of selection;' and on April 21st of the same year the secretary of the interior approved the selection, subject to the same qualification. On June 2, 1871, the Oregon Central Military Road Company conveyed the west half of said section 21 to B. J. Pengra, and the east half of the same to the California and Oregon Land Company. Afterwards, and before the commencement of this action, B. J. Pengra and wife conveyed said west half to the plaintiff herein. It is also specially admitted that the plaintiff has succeeded to and now owns all the estate and interest in said west half that said company ever owned or held...