State of Wyoming v. United States

• Decision Date: 14 November 1962
• Docket Number: No. 6869.,6869.
• Citation: 310 F.2d 566
• Parties: STATE OF WYOMING and the Richfield Oil Corporation, a corporation, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

310 F.2d 566 (1962)

STATE OF WYOMING and the Richfield Oil Corporation, a corporation, Appellants, v. UNITED STATES of America, Appellee.

No. 6869.

United States Court of Appeals Tenth Circuit.

October 12, 1962.

Rehearing Denied November 14, 1962.

COPYRIGHT MATERIAL OMITTED

William D. Foote and M. F. Schade, Los Angeles, Cal. (W. M. Haight, Deputy Atty.Gen., State of Wyoming, and Frank M. Gallivan, Cheyenne, Wyo., were on the brief), for appellants.

S. Billingsley Hill, Atty., Dept. of Justice (Ramsey Clark, Asst. Atty. Gen., Dept. of Justice, Robert N. Chaffin, U. S. Atty., Cheyenne, Wyo., Roger P. Marquis and Margaret S. Willick, Attys., Dept. of Justice, were on the brief), for the United States.

Before PHILLIPS, PICKETT and HILL, Circuit Judges.

PHILLIPS, Circuit Judge.

The United States brought this action against the State of Wyoming¹ and Richfield Oil Corporation,² seeking a declaratory judgment, under 28 U.S.C.A. § 2201, establishing its title to certain lands in the State of Wyoming, as against the adverse claims of title made by the State of Wyoming, and by Richfield Oil Corporation as the lessee under oil and gas leases on a portion of such lands. From a judgment in favor of the United States, the State of Wyoming and Richfield have appealed.

Section 4 of the Act providing for the admission of the State of Wyoming into the Union, 26 Stat. 222, in part reads:

"Sections numbered sixteen and thirty-six in every township of said proposed State, and where such sections, or any parts thereof, have been sold or otherwise disposed of by or under the authority of any act of Congress, other lands equivalent thereto, in legal subdivisions of not less than one quarter section, and as contiguous as may be to the section in lieu of which the same is taken, are hereby granted to said State for the support of common schools, such indemnity lands to be selected within said State in such manner as the legislature may provide, with the approval of the Secretary of the Interior: * * *."

Section 12 of such Act in part reads:

"The State of Wyoming shall not be entitled to any further or other grants of land for any purpose than as expressly provided in this act; * * *."

Section 14 of such Act in part reads:

"* * * And there shall be deducted from the number of acres of land donated by this act for specific objects to said State the number of acres heretofore donated by Congress to said Territory for similar objects."

Article 18, § 1 of the Wyoming Constitution, Wyoming Statutes, 1957, Vol. 1, p. 165, in part reads:

"The state of Wyoming hereby agrees to accept the grants of lands heretofore made, or that may hereafter be made by the United States to the state, for educational purposes, * * * with the conditions and limitations that may be imposed by the act or acts of congress, making such grants * * *."

Article 18, § 4 of the Wyoming Constitution, supra, in part reads:

"The legislature shall * * * provide by law for the location and selection of all lands that have been or may hereafter be granted by congress to the state, * * *."

Section 2 of the Act of May 18, 1796, (The Public Lands Survey Act) 1 Stat. 464, 466, as carried forward in 43 U.S. C.A. § 751, establishing the mode of surveying public lands, provides for the division of the public lands by north and south lines, running according to the true meridian, and by other lines crossing them at right angles, so as to form townships of six miles square; for the division of each township into thirty-six sections, each containing as nearly as may be, six hundred and forty acres; for the progressive numbering of such sections from one through thirty-six; and for the marking of the corners of each section. The public lands of the United States in the Territory of Wyoming were surveyed under the provisions of the Public Lands Survey Act. Such surveys were approved and accepted in 1883 and 1884. Thereafter, it was discovered that many of the surveys were either inaccurate or erroneous and that many of the monuments were obliterated. Because of those facts and the effect thereof upon titles to lands in the State of Wyoming, the State, acting through its officials, private claimants, and officials of the United States,³ requested Congress to provide for resurveys covering large areas in the State, so that the State, private and Federal lands could be accurately located.⁴ Congress responded to such requests in 1903, 1905 and 1908 by enacting legislation which directed resurveys of areas of the State in excess of 12,000,000 acres. The Resurvey Act of January 10, 1903, 32 Stat. 767, provides:

"That the Secretary of the Interior be, and he is hereby, authorized and directed to cause to be made a resurvey of the following townships in the State of Wyoming: here follows a description of the townships to be resurveyed. * * * Provided, That nothing herein contained shall be so construed as to impair the present bona fide rights or claim of any actual occupant of any of said lands so occupied to the amount of land to which, under the law, he is entitled."

The Resurvey Act of March 3, 1905, 33 Stat. 992, was substantially the same as the 1903 Act, except it described different townships. The Resurvey Act of May 29, 1908, 35 Stat. 465, was substantially the same as the two prior Acts, except it described different townships.

The resurveys under the 1903 Act were commenced shortly after that Act became effective and continued under it and the two latter Acts to and including 1921.

(When hereinafter we use the phrase "original school section(s)" we mean the school section(s) as located by the original survey thereof and when hereinafter we use the phrase "resurveyed school section(s)" we mean the school section(s) as located by the resurvey thereof.)

We disagree with the contention of counsel for appellants that we should consider only that part of the evidence which is specifically applicable to the 9 sections remaining in controversy in this action. The resurveys of the townships in which such sections were located were not isolated surveys, separate and apart from the resurveys of the other townships, made under the same or like Congressional authority and for the same reasons and purposes. On the contrary, the resurveys of such townships were a part of an overall plan to correct errors in earlier surveys of many townships. Hence, the conduct of the State and of the United States, with respect to the resurvey of other school sections, was pertinent to show the relative course of action of each in the carrying out of such overall plan and the reliance of the United States on such State conduct.

The officials of the State, throughout the period of the resurveys, actively cooperated and assisted in the making of such resurveys, acting on the premise that Congress intended that either the original school sections or the resurveyed school sections, but not both, should be segregated and designated as school sections granted to the State. On March 17, 1904, Mr. Gilcrest, State Land Inspector and member of the State Board of Land Commissioners, advised the United States Surveyor General that in the making of the resurveys, the State was entitled to have Sections 16 and 36 segregated as originally surveyed. Early in 1904, the State authorities were advised by the Surveyor General as to the desirability of having a representative on the ground to point out the original school sections, so that they could be segregated. By the Act of February 15, 1905, § 36-35, Wyoming Statutes, 1957, it was provided that:

"The commissioner of public lands shall select and locate all lands which are now or may be hereafter granted to the State of Wyoming by the United States for any purpose whatever."

On May 18, 1906, the Governor convened a special meeting of the State Board of School Land Commissioners, of which he was President, and the State Treasurer and Superintendent of Public Instruction were members. The minutes of that meeting recite the following:

"The question of the resurvey of lands in Wyoming being considered it was moved and duly carried that the officers of the Board be authorized to waive the right of the State of Wyoming to sections 16 and 36, or lands selected in lieu thereof, and accept similar numbered tracts, as resurveyed, or lieu land when upon resurvey said tracts are in conflict with private land claims, when such action is not apparently to the serious disadvantage of the State and that the officers of the Board be authorized to execute such papers as may be required by the United States to carry out this plan."

Five days thereafter, the State Land Board adopted a motion stating that it waived its right to original school sections in 12 townships and "agrees to accept in lieu thereof said numbered sections in said numbered townships * * * as resurveyed" and, thereafter, the successive State Commissioners of Public Lands (when it was in the State's interest to do so) consistently filed written waivers of the State's right to have the original school sections segregated and accepted in lieu thereof, as its school land grant, resurveyed school sections.

There were instances where the State officials waived the surveying out by metes and bounds of original school sections and agreed to accept in lieu thereof similarly numbered resurveyed school sections, and in those instances, in accordance with instructions from the Commissioner of the General Land Office, the lines of the original survey in such townships were not rerun.

The record discloses no instance where the State, under the Resolution of May 18, 1906, elected to accept resurveyed school sections in lieu of original school sections, that the State did not execute a waiver of its rights to the latter, and the record discloses many instances where upon such an election by the State it executed such a waiver.

When it was in the State's interest to retain original school sections, they were segregated...