State v. Des Chutes Land Co.

• Decision Date: 11 February 1913
• Citation: 64 Or. 167,129 P. 764
• Parties: STATE v. DES CHUTES LAND CO.
• Court: Oregon Supreme Court

129 P. 764

64 Or. 167

STATE v. DES CHUTES LAND CO.

Supreme Court of Oregon

February 11, 1913

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by the State against the Des Chutes Land Company. From a judgment dismissing the action, the State appeals. Affirmed.

On September 25, 1907, the defendant entered into a contract with the then state land board for the reclamation of certain desert lands in this state under what is known as the Cary Act of Congress and legislation of this state in pursuance thereof. That board having been supplanted by the desert land board by virtue of the act of February 24, 1909, passed by the Legislative Assembly of Oregon, the latter body, acting in the name of the state, brought this suit to restrain the defendant from violating certain negative provisions of that contract. The circuit court dismissed the suit on demurrer to the complaint, and the state appeals.

Claude C. McColloch, of Baker, A.M. Crawford, Atty. Gen (James W. Crawford and H.C. Brodie, both of Salem, on the brief), for the State.

A.C Shaw and Charles W. Fulton, both of Portland, for respondent.

BURNETT J.

By the act of Congress of August 18, 1894, entitled "An act making appropriations for sundry expenses of the government for the fiscal year ending June 30, 1895, and for other purposes," the Secretary of the Interior, with the approval of the President, was authorized and empowered, upon proper applications of certain states, of which Oregon was one, "to contract and agree from time to time with a state in which there is situated desert lands *** to donate grant and patent to the state free of cost of survey or price such desert lands not exceeding 1,000,000 acres in each state as the state may cause to be irrigated, reclaimed and occupied and not less than 20 acres of each 160-acre tract cultivated by actual settlers within ten years next after the passage of the act as thoroughly as is required of citizens who may enter under the desert land law." After providing for the preparing and submitting to the Secretary of the Interior for his approval plans, specifications, and maps of the proposed scheme of irrigation, the act says "That any state contracting under this section is hereby authorized to make all necessary contracts to cause the said lands to be reclaimed and to induce their settlement and cultivation in accordance with and subject to the provisions of this section, but the state shall not be authorized to lease any of said lands or use or dispose of the same in any way whatever except to secure their reclamation, cultivation and settlement." Act Aug. 18, 1894, c. 301, 28 U.S.Stat. at Large, 422 (U.S.Comp.St. 1901, p. 1555); L.O.L. p. 65, The act also stipulated that as fast as any state might furnish satisfactory proof that the lands are irrigated, reclaimed, and occupied by actual settlers the general government will issue patents to the state or its assigns for such lands; that the state should not sell or dispose of more than 160 acres of land to any one person; and that any surplus of money derived by any one state from the sale of lands above the cost of their reclamation should be held as a trust fund, to be applied to the reclamation of other desert lands in that state. The act of Congress of June 11, 1896 (29 Stat. at Large, 434, c. 420), making appropriations for sundry civil expenses of the government for the ensuing year and for other purposes, made a rule, in substance, that under any law enacted by a state providing for the reclamation of arid lands pursuant to and in acceptance of the acts of Congress already mentioned liens were authorized to be created by the state to which such lands were granted, and by no other authority whatever, and when created should be valid against the separate legal subdivisions of land reclaimed for the actual cost and necessary expenses of reclamation and reasonable interest thereon from the date of reclamation until disposed of to actual settlers. The act also specified that when an ample supply of water is actually furnished patents should issue to each state without regard to settlement or cultivation, and further provided that in no event should the United States be responsible for the amount of the liens or liability in whole or in part. This legislation is known in common parlance as the "Carey Act."

By an "act to provide for the acceptance by the state of Oregon of certain lands and for the reclamation and disposal of the same," filed in the office of the Secretary of State February 28, 1901, the Legislative Assembly accepted the conditions of the Carey Act.Laws 1901, p. 378; B. & C. Comp. § 3283 et seq. By this law it was declared that, upon application to the state by any person, company, association or corporation desiring to reclaim any of the desert government lands in Oregon, the state land board should make proper application to the Secretary of the Interior and contract with him for the patent of such lands to the state.

This further provision appears in section 2 of the act (B. & C Comp. § 3284): "Said state land board is hereby authorized to make and enter into such contracts and agreements and to assume such obligations in relation to and concerning said lands as may be necessary to induce and cause such reclamation thereof as is required by the contract with the Secretary of the Interior and the acts of Congress, and is authorized and empowered to create a lien or liens which when created shall be valid on and against the separate legal subdivisions of land reclaimed for the actual cost and necessary expense of reclamation and reasonable interest thereon from the date of reclamation until said lien shall have been satisfied; provided, that in no event, in no contingency and under no circumstance shall the state of Oregon be in any manner directly or indirectly liable for any amount of any such lien or liability in whole or in part." Section 3 of this act required the person or corporation desiring to enter into a contract to furnish all preliminary maps, plans, and surveys for the approval of the Secretary of the Interior. Section 4 reads thus: "Upon the receipt of the application, map, plan of irrigation, payment, etc., as provided in section 3225, the state land board shall enter into a contract with the said person, company of persons, association, or incorporated company applying therefor, for the construction of the works substantially according to the plans submitted under said contract. The person, company of persons, association, or incorporated company entering into the same shall undertake and agree to furnish an ample supply of water, substantially in accordance with the plans submitted, to reclaim said lands in compliance with the act granting the same to the state, and make the proofs required by the Secretary of the Interior for the issuance of patent, and to pay all costs of advertising and other expenses incident to such proof and application for patent. Said person, company of persons, association, or incorporated company shall further agree and undertake that work will be commenced upon the ditches or other works necessary for the reclamation of said lands within six months after the signing of the contract by the Secretary of the Interior; that by the end of the first year ten per cent. of all the necessary expenditures will be made, and that this work will be prosecuted with due diligence until complete, and the proof of reclamation is made as required by the acts of Congress. The state land board shall, by said...