Territory of Arizona v. Perrin

• Decision Date: 18 November 1905
• Docket Number: Civil 900
• Parties: TERRITORY OF ARIZONA, at the Relation and to the Use of Thomas Devine, Treasurer and ex-Officio Tax-Collector of Coconino County, Plaintiff and Appellant, v. EDWARD B. PERRIN, Defendant and Appellee
• Court: Arizona Supreme Court

83 P. 361

9 Ariz. 316

TERRITORY OF ARIZONA, at the Relation and to the Use of Thomas Devine, Treasurer and ex-Officio Tax-Collector of Coconino County, Plaintiff and Appellant, v. EDWARD B. PERRIN, Defendant and Appellee

Civil No. 900

Supreme Court of Arizona

November 18, 1905

APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Coconino. Richard E. Sloan Judge. Affirmed.

The facts are stated in the opinion.

Edward M. Doe, for Appellant.

Joseph H. Kibbey, for Appellee.

OPINION

CAMPBELL, J.

-- This is an action brought by the territory of Arizona, at the relation of the treasurer and ex-officio tax-collector of Coconino County, against Edward B. Perrin. The action is brought under the provisions of act No. 92, page 148, of the legislative assembly of 1903, to enforce against certain lands the taxes levied thereon for the year 1903. The appellee was in April, 1902, and for some years prior thereto had been, the owner of the lands upon which taxes were sought to be imposed. Said lands were embraced within the odd-numbered sections within the general limits of the Atlantic and Pacific Railroad land grant, and, while not owned by the United States, were within the exterior limits of what was then and is now the San Francisco Mountain Forest Reserve, a forest reserve theretofore duly established by the president of the United States. During the month of December 1901, and up to the month of April, 1902, appellee had correspondence with the secretary of the interior of the United States, looking to the acquisiton by the United States of the land held by the appellee, that the same might be incorporated in and become a part of the forest reservation. He made a proposition to the department of the interior offering to relinquish to the United States the lands in question, and to select in lieu thereof vacant unappropriated public lands within certain prescribed limits and in the manner provided by the act of Congress of June 4, 1897, 30 Stats. 36, chap. 2. There were certain outstanding contracts granting the right to cut timber from a portion of the lands involved, and at the instance of the secretary of the interior the appellee agreed to use his good offices in securing from the holders of these timber privileges compliance with rules and regulations to be prescribed by the interior department. Forms of deeds of relinquishment were submitted by the appellee to the secretary of the interior, and approved by that officer. The proposition made was accepted by the secretary of the interior in April, 1902, and subsequently, in the same month, the president of the United States, at the request of the secretary of the interior, issued his proclamation incorporating into the reserve the lands of appellee. It was a part of the agreement entered into with the secretary of the interior that the appellee should as soon as practicable execute to the United States deeds of relinquishment of said lands. These deeds were so executed, and on the thirty-first day of January, 1903, were caused to be recorded in the office of the recorder in the county in which the lands are situated, and abstracts of title to the said lands were furnished to the secretary of the interior at his request. Thereafter, in April, 1903, the secretary of the interior approved the said abstracts of title and the deeds of relinquishment, with the exception of a small part of the land conveyed, which at the time this action was tried in the court below had not yet been approved. After the agreement reached by correspondence and the proclamation of the President, appellee in no wise attempted to exercise any claim or control over the lands, but they were and remain under the complete control of the secretary of the interior, and are and have been in all respects treated as a part of the forest reservation.

It is contended by the appellant that, although the deeds of relinquishment were filed and recorded on January 31, 1903 the government took no title to the lands until the deeds and abstracts were approved by the secretary of the interior, and the selection of the lands in lieu of those relinquished were made by the appellee and approved by the land department of the government, and, as such selections and approvals were not made until after the first Monday in February, 1903, the lien for taxes for the year 1903, by virtue of the provisions of paragraph 3833 of the Revised Statutes of Arizona of 1901, attached to the lands on the first Monday in February in that year. The act of June 4, 1897, under which the lands were relinquished to the government, provides: "That in cases in which a tract covered by an unperfected bona fide claim or by...