Sawyer v. Gray

• Decision Date: 10 April 1913
• Docket Number: 1,696.
• Citation: 205 F. 160
• Parties: SAWYER et al. v. GRAY et al.
• Court: U.S. District Court — Western District of Washington

205 F. 160

SAWYER et al. v. GRAY et al.

No. 1,696.

United States District Court, W.D. Washington, Southern Division.

April 10, 1913

Herbert S. Griggs, of Tacoma, Wash., for complainants.

F. M Dudley and George W. Korte, both of Seattle, Wash., for defendant Milwaukee Land Co.

W. A Reynolds, of Chehalis, Wash., for defendants Gray.

Peters & Powell, of Seattle, Wash., for defendants Barr.

CUSHMAN District Judge.

This matter is for decision upon the demurrer of certain of the defendants to the second amended bill of complaint for want of equity. The bill contains the following allegations:

That complainants are citizens of the United States. That, in 1899, the state of Washington requested the Department of the Interior, pursuant to the act of August 18, 1894, for a survey of certain lands including those in dispute, at which time the latter were unappropriated, unsurveyed public lands of the United States. The lands were surveyed and plat filed April 10, 1901. By the terms of this act the state of Washington was allowed until June 9, 1901, to make its selection. It filed its list of selections June 6, 1901; but in this list the land in dispute was not included.

Prior to this F. A. Hyde & Co. had obtained patent to certain lands in California, which had been included in a forest reserve established by the United States, which lands F. A. Hyde &amp Co. relinquished and conveyed to the United States, recording the conveyance, furnishing an abstract of title thereto, showing chain of title to the land so relinquished from the government back to the United States. In lieu of the lands so relinquished, March 9, 1900, they made application to the proper land office for the lands in dispute, which were then vacant, nonmineral public lands, subject to selection, and did not exceed in area the lands relinquished.

The Department of the Interior, December 21, 1901, held the application invalid because made during the 60 days allowed by the act for the state's selection. March 3, 1902, after the 60 days had elapsed, Hyde & Co. made another selection of the lands in question, which were then surveyed public lands of the United States, unappropriated and subject to entry and selection, in lieu of certain other base lands, included in a forest reservation, theretofore surrendered to the United States government, an abstract of title being furnished with proof, showing that such were free from incumbrances, with all taxes paid, and complied with all of the regulations of the Land Department of the United States.

This second application was received by the land office and forwarded to the Commissioner of the General Land Office for consideration and approval. Complainants are the grantees of Hyde & Co. and the applications made by that company were for complainants' benefit. On March 21, 1902, the Land Department of the United States made an order, suspending all further proceedings on all entries made with the so-called 'Hyde script,' which order has never been revoked and is still in force. No hearing has been had, or action taken by the Land Department since, on complainants' second application.

In 1906 and 1907, patents were issued for the lands in dispute to certain of the defendants and the grantors of the remaining defendants. Complainants assert that, by each of these selections, they became the equitable owners of these lands. That the defendants had knowledge of complainants' prior rights; but complainants were ignorant, until shortly prior to the commencement of this suit, of the attempted entry by defendants.

It is further alleged that the patents were issued by mistake; that the United States officials overlooked the fact that the second application of Hyde & Co. was still pending before the Land Department. The prayer is that complainants be decreed the owners, and that it be further decreed that defendants hold the title in trust for them. An alternative prayer is made to have the patents to the defendants canceled.

Complainants rely upon the following authorities: Smelting Co. v. Kemp, 104 U.S. 636, 26 L.Ed. 875; Turner v. Sawyer, 150 U.S. 586, 14 Sup.Ct. 192, 37 L.Ed. 1189; Bohall v. Dilla, 114 U.S. 47, 5 Sup.Ct. 782, 29 L.Ed. 61; Frisbie v. Whitney, 9 Wall. 187, 19 L.Ed. 668; Shepley v. Cowan, 91 U.S. 330, 23 L.Ed. 424; Weyerhaeuser v. Hoyt, 219 U.S. 380, 31 Sup.Ct. 300, 55 L.Ed. 258; Gibson v. Chouteau, 13 Wall. 92, 20 L.Ed. 534; U.S. v. Detroit Lbr. Co., 200 U.S. 321, 26 Sup.Ct. 282, 50 L.Ed. 499; Sjoli v. Dreschel, 199 U.S. 564, 26 Sup.Ct. 154, 50 L.Ed. 311; St. Paul Co. v. Winona Co., 112 U.S. 720, 5 Sup.Ct. 334, 28 L.Ed. 872; Duluth R.R. v. Roy, 173 U.S. 587, 19 Sup.Ct. 549, 43 L.Ed. 820; Bodly v. Taylor, 5 Cranch, 191, 3 L.Ed. 75; Sanford v. Sanford, 139 U.S. 642, 11 Sup.Ct. 666, 35 L.Ed. 290; Barnard v. Ashley, 18 How. 43, 15 L.Ed. 285; Garland v. Wynn, 20 How. 6, 15 L.Ed. 801; Sherman v. Buick, 93 U.S. 209, 23 L.Ed. 849; Lee v. Johnson, 116 U.S. 48, 6 Sup.Ct. 249, 29 L.Ed. 570; Bagnell v. Broderick, 13 Pet. 436, 10 L.Ed. 235; Meader v. Norton, 11 Wall. 442, 20 L.Ed. 184; U.S. v. Great Falls Co., 112 U.S. 645, 5 Sup.Ct. 306, 28 L.Ed. 846; Salomon v. U.S., 19 Wall. 17, 22 L.Ed. 46; Amoskeag Co. v. U.S., 17 Wall. 592, 21 L.Ed. 715; U.S. v. Smith, 94 U.S. 214, 24 L.Ed. 115; U.S. v. Peck, 102 U.S. 64, 26 L.Ed. 46; Chicago Co. v. U.S., 104 U.S. 680, 26 L.Ed. 891; U.S. v. State Bank, 96 U.S. 30, 24 L.Ed. 647; Marine Ins. Co. v. Hodgson, 7 Cranch, 332, 3 L.Ed. 362; Veazie v. Williams, 8 How. 161, 12 L.Ed. 1018; McQuiddy v. Ware, 20 Wall. 14, 22 L.Ed. 311; Williams v. Gibbes, 20 How. 535, 15 L.Ed. 1013; U.S. v. McClure (C.C.) 174 F. 510; U.S. v. Hyde et al. (C.C.) 174 F. 175; Brundy v. Mayfield, 15 Mont. 201, 38 P. 1067; McHenry v. Nygaard, 72 Minn. 11, 74 N.W. 1106; Galliher v. Caldwell, 3 Wash.T. 501, 18 P. 72; Hedrick v. Atchison, T. & S.F.R. Co., 120 Mo. 540, 25 S.W. 759; U.S. v. Citizens Co., 19 Okl. 585, 93 P. 448; Janes v. Wilkinson, 2 Kan.App. 361, 42 P. 735; Watt v. Amos, 14 Okl. 178, 79 P. 109; Brygger v. Schweitzer, 5 Wash. 564, 32 P. 462; Gage v. Gunther, 136 Cal. 338, 68 P. 710, 89 Am.St.Rep. 141; Hanna v. Haynes, 42 Wash. 284, 84 P. 861; 2 Story on Equity Jur. 694.

Defendants rely on the following authorities: Doolan v. Carr, 125 U.S. 618, 8 Sup.Ct. 1228, 31 L.Ed. 844; Caha v. U.S., 152 U.S. 211, 221, 14 Sup.Ct. 513, 38 L.Ed. 415; Cosmos Co. v. Gray Eagle Co., 190 U.S. 301, 309, 23 Sup.Ct. 692, 47 L.Ed. 1064; Smelting Co. v. Kemp, 104 U.S. 636, 637, 26 L.Ed. 875; U.S. v. Curtner (C.C.) 38 F. 1, at 9-10; James v. Germania Iron Co., 107 F. 597, 600, 46 C.C.A. 476; Le Marshel v. Teagarden (C.C.) 152 F. 662, 665, 666; Durango Land & Coal Co. v. Evans, 80 F. 425, 430, 25 C.C.A. 523; Campbell v. Weyerhaeuser, 161 F. 332, 88 C.C.A. 412; U.S. v. McClure (C.C.) 174 F. 510, affirmed 187 F. 265; So. Pac. R. Co. v. Burlingame, 5 Land Dec.Dept.Int. 415, 417; Robinson v. Forrest, 29 Cal. 317, 325; Middleton v. Low, 30 Cal. 596-604, 605; Bullock v. Rouse, 81 Cal. 590, 22 P. 919, 920; Smith v. City of Los Angeles, 158 Cal. 702, 112 P. 307, 310; Zeigler v. State of Idaho, 30 Land Dec.Dept.Int. 1; McFarland v. State of Idaho, 32 Land Dec.Dept.Int. 107; Kay v. State of Montana, 34 Land Dec.Dept.Int. 139; Thorpe et al. v. State of Idaho, 35 Land Dec.Dept.Int. 640; Id., 36 Land Dec.Dept.Int. 479; Pacific Live Stock Co. v. Isaacs, 52 Or. 54, 96 P. 460, 464; Baldwin v. Keith, 13 Okl. 624, 75 P. 1124; Loney v. Scott, 57 Or. 378, 112 P. 172, 175, 32 L.R.A. (N.S.) 466.

Suit to have the patents canceled cannot be maintained by complainants, and will only be entertained on complaint of the United States. U.S. v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93; 32 Cyc. 1051-1055.

The township plat having been filed in April, 1901, the lands in dispute were unsurveyed at the time of the first alleged selection, in March, 1900. The government survey creates, not merely identifies, sections of land. There were no such lands as those described in the first application at the time of selection. U.S. v. Curtner (C.C.) 38 F. 1, at 9 & 10; So. Pac. R. Co. v. Burlingame, 5 Land Dec.Dept.Int. 415, 417, and cases cited; Robinson v. Forrest, 29 Cal. 317, 325; Middleton v. Low, 30 Cal. 596, 604, 605; Bullock v. Rouse, 81 Cal. 590, 22 P. 919, 920; Smith v. City of Los Angeles, 158 Cal. 702, 112 P. 307, 310.

Act March 3, 1893, c. 208, 27 Statutes at Large, p. 592, provides:

'That the states of North Dakota, South Dakota, Montana, Idaho, and Washington shall have a preference right over any person or corporation to select lands subject to entry by said states granted to said states by the act of Congress approved February twenty-second, eighteen hundred and eighty-nine, for a period of sixty days after lands have been surveyed and duly declared to be subject to selection and entry under the general land laws of the United States: And provided further, that such preference right shall not accrue against bona fide homestead or pre-emption settlers on any of said lands at the date of filing of the plat of survey of any township in any local land office of said states.'

On May 10, 1893, the Department of the Interior promulgated certain regulations to carry this statute into effect. Section 2 provided:

'During said period of sixty days no person not claiming in virtue of settlement existing at the date of the filing of the plats, nor corporation, will be allowed to enter the lands subject to selection by the respective states; but the law cannot be held to inhibit, during said period, the selection of lands previously granted to a corporation by Congress, as, for instance, the granted sections within the primary limits of a railroad grant. ' 16 Land Dec.Dept.Int. 462.

The Lieu Land Act provides:

'That in cases in which a tract covered by an...