United States v. Dalles Military Road Co.

• Decision Date: 20 February 1890
• Citation: 41 F. 493
• Parties: UNITED STATES v. DALLES MILITARY ROAD CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

41 F. 493

UNITED STATES v. DALLES MILITARY ROAD CO. et al.

United States Circuit Court, D. Oregon.

February 20, 1890

Syllabus by the Court

In 1867 there was granted the state of Oregon, by an act of congress certain public lands to aid in the construction of a military wagon road. The grant was in the words, 'there be and hereby is granted to the state of Oregon,' and it was provided that the lands granted should be disposed of by the legislature for the purposes of the grant. It was further provided that when the governor of the state should certify to the secretary of the interior that 10 continuous miles of the aided road are completed, a quantity of the lands granted, not exceeding 30 sections, might be sold, and so on from time to time until the road should be completed. The governor of Oregon having thereafter certified to the completion of said road, the commissioner of the general land office withdrew from sale the lands granted, in favor of the defendant company, to which the grant had been transferred by act of the state legislature, and afterwards, in 1874 congress by an act provided 'that in all cases when the roads in aid of the construction of which said lands were granted, are shown by the certificate of the governor of the state of Oregon, as in said acts provided, to have been constructed and completed, patents for said lands shall issue in due form to the state of Oregon as fast as the same shall under said grants, be selected and certified, unless the state of Oregon shall, by public acts, have transferred its interests in said lands to any corporation or corporations in which case patents shall issue from the general land-office to such corporation or corporations upon payment of the necessary expenses thereof. ' Held: (1) The act granting lands in aid of the Dalles military road passed a present title to the state of Oregon, to be defeated only by a breach of conditions subsequent. (2) The fact that the governor's certificate was not made on completion of each section of ten miles of the road, makes no difference. It is sufficient if made at one time covering the completion of the whole road. (3) The authority to determine whether the road was completed was vested solely in the governor of Oregon whose decision, in the absence of any such fraud as would vitiate it, is necessarily final and conclusive. (4) The right to a patent once vested, is equivalent, as respects the government dealing with the public lands, to a patent issued. (5) Purchasers of these lands from the state's grantee, were not required to go over the road and ascertain for themselves whether it had been completed in all particulars in accordance with the requirements of the granting act, but were entitled to rely upon the record, constituted by the said acts of congress and of the state, the withdrawal of the lands by the commissioner, and the governor's certificate. (6) The provision of the act of congress authorizing the bringing of this suit by the United States to procure a decree of forfeiture of said lands, 'saving and preserving the rights of bona fide purchasers of either of said grants, or of any portion of said grants, for a valuable consideration,' recognizes the rights of innocent purchasers, if they had been otherwise doubtful. (7) Where 15 years have elapsed after affirmative and confirmatory action by congress in directing the issue of patents to lands in all cases where the certificate of the governor had been made, and 20 years have elapsed after the date of such certificates, and before the act authorizing the bringing to this suit, it is not within the established principles of equity jurisprudence to allow such suit to be maintained, and the cause of suit ought to be regarded as stale. (8) The government is now estopped by the action had from time to time by congress and its agents duly authorized, and the public record made of such acts, from alleging the non-fulfilment of the statutory conditions of the grant.

This is a bill in equity, filed by the attorney general of the United States, in pursuance of the act of congress of March 2, 1889, (25 St. 850,) to procure a decree of forfeiture of all lands granted by the act of congress of February 25, 1867, to the state of Oregon, to aid in the construction of a military wagon road from Dalles City, on the Columbia, to Fort Boise, on the Snake river, found in 14 St. 409, on the ground that the terms of the grant had not been complied with. It also seeks a cancellation of all patents therefor, issued by the united States under the act, and all conveyances to purchasers under said patents, and under the act, as well as a forfeiture of the lands still unpatented. The bill alleges, in substance, that the road, in aid of which the grant was made, was never constructed in whole, or in part; that through the fraudulent representations of the officers, stockholders, and agents of the corporation, the governor of Oregon was deceived and induced to issue a certificate in pursuance of the provisions of the act, declaring that he had examined the road throughout its entire length, and that it had been constructed and completed in all respects in accordance with the statute; and that, relying upon this certificate, the patents to portions of the lands had been issued by the United States. The state of Oregon, by an act passed October 20, 1868, granted the same lands to the defendant, the Dalles Military Road Company, for the same purpose and upon the same terms as prescribed in said act of congress. St. Or. 1868, 3. After the road was claimed to have been completed in accordance with the provisions of said several acts, and after the governor of Oregon had certified to the completion, as provided in the acts, and the road had been accepted, and patents to portions of the lands issued, the said Dalles Military Road Company conveyed the lands for a large consideration, to one Edward Martin, and by sundry mesne conveyances from him, the title became vested in the defendant, the Eastern Oregon Land Company. The defendants, by leave of the court first obtained, filed two pleas, to the bill, supported by an answer under oath, denying the fraud alleged in the unverified bill as prescribed by Equity Rule 32. The first alleges:

'That George L. Woods, then the governor of Oregon, without any false or fraudulent representations having at any time been made to him by the officers, stockholders, or agents of the Dalles Military Road Company, or any other person, or persons in its or their interest, and without any one or more of them having falsely or fraudulently induced him to certify that the road of said company was constructed in accordance with law; and without any fraud whatever on his part, on January 23, 1869, made a certificate which certificate is in the words following: 'I, George L. Woods, governor of the state of Oregon, do hereby certify that this plat or map of the Dalles Military Road has been duly filed in my office by the Dalles Military Road Company, and shows in connection with the public surveys, as far as said public surveys are completed, the location of the line of route as actually surveyed, and upon which their road is constructed in accordance with the requirement of an act of congress approved February 25, 1867, entitled 'An act granting lands to the state or Oregon, to aid in the construction of a Military Wagon Road from Dalles City, on the Columbia river, to Fort Boise, on Snake river,' and with the act of the legislative assembly of the state of Oregon, approved October 20, 1868, entitled 'An act donating certain lands to Dalles Military Road Company.' I further certify that I have made a careful examination of said road since its completion, and that the same is built in all respects as required by said above recited acts, and that said road is accepted;' that afterwards, on May 31, 1876, the Dalles Military Road Company, for a valuable consideration, to-wit: the sum of $125,000, to it paid by Edward Martin, sold and conveyed all the said lands belonging to it to said Martin, his heirs, and assigns, and that by sundry mesne conveyances from said Martin, to the Eastern Oregon Land Company, one of the defendants, the title to all said lands became and now is vested in said defendant, the Eastern Oregon Land Company.' The second plea sets out the same facts, as stated in the first, and the further facts that on December 18, 1869, after making of said certificate by the governor of Oregon, the commissioner of the general land-office withdrew from sale the odd numbered sections within three miles on each side of the said road in favor of the Dalles Military Road Company; that congress afterwards, on June 18, 1874, passed an act entitled 'An act to authorize the issuance of patents for lands granted to the state of Oregon in certain cases,' which after reciting that congress had granted the state of Oregon in certain lands, 'to aid in the construction of certain military wagon roads in said state,' and that 'there exists no law providing for issuing formal patents for said lands,'-- provided 'That in all cases when the roads in aid of the construction of which said lands were granted, are shown by the certificate of the governor of the state of Oregon, as in said acts provided, to have been constructed and completed, patents for said lands shall issue in due form, to the state of Oregon, as fast as the same shall, under said grants, be selected and certified, unless the state of Oregon shall, by public acts, have transferred its interests in said lands to any corporation or corporations, in which case patents shall issue from the general land-office to such corporation or corporations, upon payment of the necessary expenses thereof, Provided: that this shall not be

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