United States of America the Riverside Oil Company v. Ethan Hitchcock

• Decision Date: 18 May 1903
• Docket Number: No. 632,632
• Citation: 190 U.S. 316,47 L.Ed. 1074,23 S.Ct. 698
• Parties: UNITED STATES OF AMERICA on the Relation of THE RIVERSIDE OIL COMPANY, Plff. in Err. , v. ETHAN A. HITCHCOCK, Secretary of the Interior
• Court: U.S. Supreme Court

190 U.S. 316

23 S.Ct. 698

47 L.Ed. 1074

UNITED STATES OF AMERICA on the Relation of THE RIVERSIDE OIL COMPANY, Plff. in Err.,

v ETHAN A. HITCHCOCK, Secretary of the Interior.

No. 632.

Argued March 17, 18, 1903.

Decided May 18, 1903.

The relator, plaintiff in error, filed its petition in the supreme court of the District of Columbia, asking for a writ of mandamus to compel the defendant, the Secretary of the Interior, to vacate a certain order made by him rejecting selections of land by one Clarke, and to compel the defendant to order such selections passed to patent and to cause to be prepared and presented for signature to the proper officers of the United States of America a patent for the selected land, or for such other relief as might be proper. The court denied the petition, and from that judgment the relator appealed to the court of appeals of the District, which, after a hearing, affirmed the judgment of the court below. The relator has brought the case here by writ of error.

The petition for the writ filed in the court below, in addition to various conclusions of law, made the following averments of fact:

On October 28, 1898, one C. W. Clarke was the owner in fee of certain land in the state of Oregon covered by a patent from the United States to his grantors, which is described in the petition, and the land was situated in a forest reservation in that state, designated as the Cascade Range Forest Reservation. On the day above mentioned Clarke executed a deed, which conveyed in fee and relinquished to the United States the land above described, and the deed was surrender to the register and receiver of the proper land office and received and accepted by them. Certain land was thereupon selected by Clarke, which land had been duly surveyed and classified as agricultural land prior to the selection, and appeared on the records of the Land Department as agricultural land, subject to disposition under the act of June 4, 1897 (30 Stat. at L. 36, chap. 2, U. S. Comp. Stat. 1901, p. 1541), relating to forest reserve lands. A copy of the material portion of that act is set forth in the margin in the case immediately preceding, Cosmos Exploration Co. v. Gray Eagle Oil Co. 189 U. S. ——, ante, 692, 23 Sup. Ct. Rep. 692.

After the selection of the land the register certified that the land thus selected in lieu of the land relinquished to the United States was free from conflict, and that there was no adverse filing, entry, or claim thereto, and he thereupon entered the selected land upon the records and tract books of the land office. The Land Department thereafter required Clarke (without authority of law as averred) to publich a notice of his selection for a period of sixty days, and the register forwarded all the papers to the Commissioner of the General Land Office, together with his above-mentioned certificate, and reported to that office that publication had been ordered pursuant to the circular of the General Land Office of December 18, 1899. Clarke complied with the requirements of the department and published the notice, and on February 6, 1900, before the sixty days had expired, the Kern Oil Company filed in the local office a protest against the selection, with accompanying affidavits, which protest and affidavits were also thereupon forwarded to the General Land Office. The petitioner avers that the protest was insufficient to constitute an issue as to whether or not the land selected by Clarke was vacant land open to settlement at the time of such selection, and it was averred that the protestant, by reason of the non-discovery of mineral in the land, was wholly without standing as an adverse claimant under the law and practice of the Land Department.

On January 2, 1900, Clarke duly conveyed by deed the selected land to the petitioner, and it thereby became vested with all of Clarke's rights in and to the land, and it is still the owner thereof and entitled to demand and receive from the United States a patent therefor. The petitioner then filed in the General Land Office a motion to dismiss the protest.

It was then averred that at the time of the selection by Clarke no other person had any right, title, or interest, vested or inchoate, in or to the land so selected, and that the persons mentioned in the protest and affidavits, and alleged to have been upon the land as locators at or before the time of the selection by Clarke, and under whom the protestant asserted rights were pretended explorers for minerals who had made no discovery of minerals upon the land or any part thereof, but had merely staked off pretended mining claims for the purpose of deceiving others and discouraging and defeating them from acquiring title to such land under the land laws, and that such staking off initiated no lawful right, inchoate or vested, under such land laws.

The hearing was had before the Commissioner of the General Land Office, and a decision in the matter was given by him, by which he held that the title of the selector did not vest until approval by the Commissioner, and that the land in the selection was yet open to exploration under the mining laws, and if at the date of the decision the land is shown to be mineral it defeats the selection.

From this decision the petitioner appealed to the Secretary of the Interior, and assigned, among other things, that the Commissioner erred in not sustaining the motion to dismiss the protest and in not passing the land selected to patent, and that he also erred in ordering a hearing, and in not holding that the showing of the tract books and land records at the date of the selection governed the character of the land for the purpose of the selection, and also in holding that a discovery of mineral upon the land selected subsequent to the selection and before approval by the Commissioner would defeat such selection; that the Commissioner also erred in calling upon the selector to demand a hearing and assume the burden of proof upon the question of the character of the land, and in directing that at such hearing, if demanded, the character of the land subsequent to the selection should be embraced in the issue.

On April 25, 1901, the defendant rendered a decision in the matter, wherein, as averred, he held that questions respecting the class and character of the selected land were to be determined by the conditions existing at the time when all requirements necessary to obtain title have been complied with by the selector; that the mere recital in one of the forms approved by the respondent, of an accompanying non-mineral and non-occupancy affidavit, constituted a regulation of the department requiring the filing of such affidavit as a condition precedent to the vesting of selector's title; that such alleged regulation was binding upon selector's forest reserve lieu land; that the affidavits filed by the selector Clarke failed to allege non-occupancy, and therefore he had not complied with the requirements necessary to obtain title; that since the said selection by Clarke valuable deposits of mineral petroleum oil had been discovered, and that, in view of the alleged admitted occupancy subsequent to the said selection and the subsequently discovered value of the land for mining purposes, it was apparent that the required proofs of the then non-mineral character and non-occupancy of the land could not then be supplied; that, therefore, the selections must be rejected.

The petition averred that the defendant vacated the order of the Commissioner directing a hearing, and arbitrarily, wrongfully, and unlawfully attempted to reject the selections and destroy the vested rights of Clarke and his grantees.

The protest mentioned in nowise questioned the sufficiency in substance and form of the selection made by Clarke, nor was the point of the alleged insufficiency of the affidavit raised by the Commissioner of the General Land Office in his decision of December 18, 1900, and the United States has in nowise notified the selector of any defect in the exchange, and there is no issue in the...