United States v. Chandler-Dunbar Water Power Co.

• Decision Date: 02 March 1907
• Docket Number: 1,543.
• Parties: UNITED STATES v. CHANDLER-DUNBAR WATER POWER CO.
• Court: U.S. Court of Appeals — Sixth Circuit

152 F. 25

UNITED STATES v. CHANDLER-DUNBAR WATER POWER CO.

No. 1,543.

United States Court of Appeals, Sixth Circuit.

March 2, 1907

H. M Hoyt and Duane E. Fox, for appellant.

A. B Eldredge and Moses Hooper, for appellee.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

SEVERENS Circuit Judge.

The bill in this cause was filed in behalf of the United States by the district attorney for the Western district of Michigan, under the direction of the Attorney General, for the purpose of removing a cloud upon the title which the United States claims to have in islands numbered 1 and 2 situated in the River St. Mary within the protracted lines of the north half of section 6, in township 47 north, of range 1 east, in the state of Michigan, and about 27 rods north of the south shore of the river. The islands are small, both of them containing not more than 1 1/2 acres of rocks and bowlders projecting a little above the surface of the water. The title which the United States claims to have is one acquired by the cession of the Northwest Territory from the state of Virginia, and from the necessity imposed by the provision of the Constitution delegating to the United States the power to regulate commerce between the states and between the states and foreign countries. The cloud complained of consists in a patent for the land along the shore opposite to the islands granted by the United States on December 15, 1883, to one Chandler, from whom the defendant claims to derive its title, and the assertion of the defendant that by virtue of the patent, Chandler, and the defendant by mesne conveyances from him, acquired the title to the islands. The pleadings raise these main controversies: First, the complainant contends that the patent to Chandler for the mainland was void because at the date of the patent it was under a reservation which excluded the authority of the land department to sell or convey it; and, second, assuming the patent to be valid, it did not carry the title to the submerged land adjacent and the islands situated therein. The defendant contests both these propositions. At the hearing in the court below upon pleadings and proofs, the bill was dismissed.

In order to understand the grounds on which the decree was rested, and also for the purpose of disposing of an objection raised here by the appellee and based on one of the grounds taken by the court below, it is necessary to make a preliminary statement of some special facts. There is a fall in the St. Mary's river along the front of the Chandler tract of about nine feet, the benefit of which the defendant wished to preserve. The Michigan-Lake Superior Power Company was proposing to divert the water of the river at a point above the Chandler tract, but on the same shore, and carry it behind that tract for the purpose of using it for power. Sharp controversy on this subject was pending between those parties, when on November 26, 1901, one of the attorneys employed by the Michigan-Lake Superior Power Company made application to locate some scrip on these islands and a narrow strip of land along the adjacent margin of the river. This strip would separate the land described in the Chandler patent from the bed of the stream. In March, 1902, the defendant brought suit by bill in equity against the Michigan-Lake Superior Power Company in the state circuit court to restrain the threatened diversion of the water. The defendant in that suit answered admitting the title to the mainland under the Chandler patent, but alleging that the title to the bed of the river was in the state. Shortly thereafter, the Michigan-Lake Superior Power Company employed an attorney at Washington to promote the application of the before-mentioned attorney to locate the islands and the marginal strip by virtue of the scrip as aforesaid. This was in December, 1902. In January following, the Secretary of the Interior requested the Attorney General to bring a proper action to obtain a judicial determination whether unsurveyed islands in the connecting waters of the Great Lakes passed by grants of the riparian tracts. In February following, the Washington attorney of the Michigan-Lake Superior Power Company was employed as special assistant to the United States attorney at a nominal consideration to be thereafter determined by the Attorney General. In April following, a bill was filed by the district attorney in behalf of the United States against the defendant in the court below to settle the question which the Secretary of the Interior had proposed. It assumed the validity of the Chandler patent, but complained that the defendant asserted title thereunder to the islands. This bill was subsequently withdrawn. On September 2, 1903, the present bill was filed, bearing the signature of the United States attorneys and of the special assistant employed in behalf of the United States as before stated. On the following day the Michigan-Lake Superior Power Company moved in the state court for leave to withdraw the admission it had made in its answer of title to the mainland in the complainant (the defendant here) on an affidavit that, from investigations at Washington made by its counsel, it had learned that the complainant (in that suit) had no title therein. The learned judge in the court below, the late Judge Wanty, after referring in his opinion to the presence of the representative of a private party in the promotion of the suit, refused to consider the validity of the Chandler patent, saying:

'The patent to the shore or upland, issued December 15, 1883, to the defendant's grantor, is attacked in the bill for the purpose of defeating any claim of the defendants to these islands; but those allegations will not be considered by the court, as they raise no questions which the United States has any interest in having determined in this suit. If in this case it should be held that the patent to the upland is invalid, then the title to these islands for that reason would be in the United States, and the only question for the determination of which this suit was authorized would be entirely eliminated, as any expression of opinion as to what the status of these islands would have been if the patent had been valid instead of invalid would be obiter dictum. The complainant does not here ask to have this patent set aside, and if it seriously questioned its validity for any reason set up in the bill of complaint its officers would undoubtedly take steps to annul the patent and resume title and possession of the valuable land on the shore as well as to these significant islands, whose only value to the complainant, if it does not own she upland, seems to lie in their position to form the subject-matter of a cause for the determination of the question for the adjudication of which this suit was authorized to be instituted in the name of the United States.'

Thereupon he passed to the other question, that of the effect of the grant upon the title to the bed of the river, upon which question he held with the defendant. It is contended that the presence of the representative of a private interest to promote a private advantage vitiates the proceeding. We think, however, that the question of the propriety of employing an attorney for a private party to assist in the prosecution of a suit by the United States in the public interest is one addressed to the judgment and discretion of the Attorney General who is charged with the responsibility for the conduct of the suit. If the object of the private party and that of the United States are one and the same, there would seem to be no sound objection. If, however, the name and authority of the United States were likely to be perverted to the promotion of a merely private object, one in which the public has no interest, such facts would indicate the impropriety of such a course, and might in some circumstances rightly influence the judgment in the case. For the reason that in the present case we find no ground for entertaining this objection as a foundation for judicial action in the disposition of the case upon its merits, we overrule it. But of course there will remain to us the duty of considering and determining what results ought to follow from the particular facts exhibited by the record, and from the manner and occasion in which those facts are presented to the court for judgment.

The first question which we shall consider is whether the defendant does not have title to this land by virtue of the statute of limitation of March 3, 1891, c. 559, 26 Stat. 1093 (U.S. Comp. St. 1901, p. 1521), which declares 'that suits by the United States to vacate and annul any patent heretofore issued, shall only be brought within five years from the passage of this act,' and the adverse possession held for that period by the defendant after the passage of the act, if indeed possession is necessary to its operation as a limitation. Counsel for complainant raise two objections to the application of this statute. One is that this suit is not a suit to annul the Chandler patent, but only to maintain the title to these islands, and that they attack the validity of the patent only for the purpose of maintaining the title to the islands. This amounts to a contention that although the patent could not be attacked directly, after the time prescribed, yet it may be done indirectly, for the purpose of controlling an incident, the right to which flows from the patent itself. The proposition is too plainly untenable for argument. But we add that the general rule is that possession of land under a claim of title for the period prescribed by a statute of limitation vests the title in him for whose protection the statute creates the limitation; and if, as we think, possession is not necessary under ...