State v. Warner Valley Stock Co.

• Decision Date: 01 February 1910
• Citation: 106 P. 780,56 Or. 283
• Parties: STATE v. WARNER VALLEY STOCK CO. et al.
• Court: Oregon Supreme Court

106 P. 780

56 Or. 283

STATE v. WARNER VALLEY STOCK CO. et al.

Supreme Court of Oregon

February 1, 1910

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

Action by the State of Oregon against the Warner Valley Stock Company and others. From a judgment for the defendant named plaintiff appeals. Affirmed in part, and reversed in part and remanded for further proceedings.

A.M. Crawford, Atty. Gen. (W.J. Moore, on the brief) for appellant.

E.E Coovert and James B. Kerr (Coovert & Stapleton, on the brief), for respondent.

E.B. Watson and Wm. P. Lord, for defendants.

EAKIN J.

This is a suit commenced by the state against the Warner Valley Stock Company, R.F. McConnaughy, its predecessor in interest, and 28 other persons, who are homestead or pre-emption settlers on portions of the land involved, for the purpose of canceling seven certain deeds issued by the state land board to said McConnaughy and the Warner Valley Stock Company, conveying to them large bodies of swamp land now claimed by the latter. The complaint is very lengthy, consisting of 83 pages of printed matter, and we can only refer briefly to the matters affecting the validity of the deeds. Although the complaint does not state separately the facts concerning each deed sought to be canceled, counsel for each party and also the trial court have treated it as containing a several cause of suit as to each of the deeds, and we will consider it as containing at least three causes of suit for the purpose of this opinion. The four deeds, of date August 21, 1891, and the one dated March 23, 1893, all to McConnaughy we will treat as one cause of suit, the one dated January 18, 1883, to McConnaughy, as one cause, and the deed to the Warner Valley Stock Company, of date June 23, 1899, as another; this classification being suggested by the points considered. A demurrer to the complaint was filed by the Warner Valley Stock Company and was sustained by the court as to each of the deeds except the one dated June 23, 1899, conveying 5,228.11 acres, on the ground that the suit is barred by the statute of limitations. The defendant homestead and pre-emption settlers filed an answer, but, upon motion of the Warner Valley Stock Company, it was stricken out and no further proceeding was had in relation to them. Issue was tendered by the Warner Valley Stock Company to the last cause of suit, which was tried upon the evidence, and findings and decree rendered against the plaintiff. The plaintiff appeals.

The Warner Valley Stock Company claims to have acquired title to the land, both in its own right and through its predecessors in interest, from the state as swamp land, granted to the state by the act of Congress on March 12, 1860 (Act March 12, 1860, c. 5, 12 Stat. 3), extending to Oregon the act granting to Arkansas and other states swamp lands within their limits of date September 28, 1850 (Act Sept. 28, 1850, c. 84, 9 Stat.

519). The legislative assembly of Oregon by an act of date October 26, 1870 (Laws 1870, p. 54), seeking to avail itself of the grant above referred to, made provision for the selection, description, and sale of the swamp lands within the state by the commissioner of lands, viz., the Governor. None of the lands involved in this suit were surveyed until June, 1875, when some township lines and a portion of the section lines were established and the survey completed in August, 1879. Pursuant to this act, C.C. Beekman and four others on November 28, 1870, filed with the said commissioner an application to purchase certain swamp lands described by a general reference to natural objects. The amount of land included is not stated in the application, nor can it be computed therefrom, but consisted of a large body of land, probably more than 150 square miles. These applicants made no other effort to comply with the act of 1870 prior to March 13, 1884. On May 5, 1880, H.C. Owen made application to purchase under said act certain lands which evidently included the lands applied for by C.C. Beekman and others. On September 7, 1881, he filed a similar application for the same and additional lands, and again, on March 6, 1883, he filed another. On March 13, 1884, the said C.C. Beekman and others, by their agent, H.C. Owen, filed an application, alleged therein to be supplemental to their original application, describing by legal subdivisions the land said to be covered by their first application and as a renewal of it, and on March 14, 1884, duly assigned to H.C. Owen all their right, title, and interest under said application and supplemental application, and on the same day H.C. Owen filed another application to purchase the same and other lands, and tendered to the state land board $15,780.32, being 20 per centum of the purchase price of the amount of land then available under his said application. Thereafter, on April 3, 1884, the state land board, acting upon said application, received said payment and issued to H.C. Owen certificate of sale No. 144, consisting of 78,901.61 acres, described by legal subdivisions. Upon this certificate of sale No. 144 depends the validity of six of the deeds in question, as it is the only authority for their issuance. Afterwards the state land board issued to McConnaughy, as successor in interest to said H.C. Owen, four deeds of date August 21, 1891, conveying to him certain lands aggregating 14,984.20 acres, and on March 23, 1893, issued to him another deed conveying 1,356.70 acres, all based upon said certificate of sale No. 144, and cancellation of which is asked in this suit.

The application of C.C. Beekman and others, filed November 28, 1870, is in the following language: "We, the undersigned citizens of the United States, and each over the age of twenty-one years, do hereby apply to purchase the following described unsurveyed swamp and overflowed lands situated, lying and being in Grant county, commencing at 'Stone Bridge,' thence west to the road called 'Lower Bidwell Road,' near foothills; thence in a northeasterly direction to a point of willows on Heney creek and near the sink of said creek; thence north twenty miles, or along foothills on west side of marsh; thence east five miles to or near the east foothills; thence in a southerly direction along east side of marsh and near the foothills to the C.F. Smith military road, east of Stone Bridge; thence west to the place of beginning. Also commencing at the 'Stone Bridge' south to point of hill, thence west to spring near road; thence south along foothills to springs called 'Warner Springs'; thence south along foothills to a large stone, the lower Bidwell road passing on each side of stone; thence along the road, called lower Bidwell road, to and including a lake called 'Little Warner' at foot of mountain, still continuing along said road passing old mail station, known as Soldier Camp; still following said road, passing a small alkali lake; still south along said road to a point on Deep Creek called 'Halfway House'; still southward along said south road to a creek with willowy growth on banks; thence eastwardly along line of said marsh, near foothills surrounding same; thence northerly along the line of said marsh to the camp of C.F. Smith, military road; thence westerly to the place of beginning; the same intended to include both Lake Warner and Little Warner, Deep Creek, and all marsh lands surrounding the same. This application is made under the provisions of an act of the Legislative Assembly of the State of Oregon, entitled an act for the selection and sale of swamp and overflowed lands belonging to the State of Oregon, approved October 26, 1870. Witness our hands this 25th day of November, 1870, at Jacksonville, Oregon. W.A. Owen. A.P. Owen. T.G. Reames. C.C. Beekman. B.P. Smith." This application was numbered "30," and will be hereafter referred to by number. The last application of H.C. Owen, upon which certificate of sale No. 144 was issued, includes much of the land mentioned in application No. 30, and the certificate makes particular reference to the fact that it is issued to H.C. Owen as successor to C.C. Beekman and others, evidently referring to application No. 30. The first tender of the 20 per centum of the purchase price of the lands claimed under application No. 30 by any one authorized to make such tender was made on March 14, 1884, by H.C. Owen, in connection with his application to purchase of that date, and was accepted by the board.

Section 1 of the act of 1870 provides that the commissioner by deputies shall proceed as soon as practicable to select in the field all the lands rendered unfit for cultivation by inundation or overflow, and "it shall be the duty of such deputies to describe each tract of swamp or overflowed land they may select, in a clear and distinct manner, either by legal subdivisions or by actual survey." Section 2 provides that, after such selections are made, "it shall be the duty of said commissioner to make out maps and descriptions thereof in duplicate, one copy to be kept in suitable books in his office, and the other to be filed in the office of the county clerk of the county in which such swamp lands may be located. **** Upon the receipt of such certificate (from the county clerk) it shall be the duty of the said commissioner to give public notice of said completion, approval and filing, for four weeks successively." Section 3 provides that the swamp land of this state shall be sold by said commissioner at a price not less than $1 per acre, and any person over the age of 21 years and a citizen of the United States "may become an applicant for the purchase of *** said swamp and overflowed lands upon filing his application therefor (describing the tract or tracts he desires to purchase) by the actual survey; or...