United States v. Garaventa Land & Livestock Co.

• Decision Date: 06 July 1942
• Docket Number: No. 9950.,9950.
• Parties: UNITED STATES v. GARAVENTA LAND & LIVESTOCK CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

129 F.2d 416 (1942)

UNITED STATES v. GARAVENTA LAND & LIVESTOCK CO. et al.

No. 9950.

Circuit Court of Appeals, Ninth Circuit.

July 6, 1942.

Norman M. Littell, Asst. Atty. Gen., Norman MacDonald and Charles R. Denny, Attys., Department of Justice, both of Washington, D. C., and Miles N. Pike, U. S. Atty., of Reno, Nev., for appellant.

William M. Kearney, Douglas A. Busey, and Robert Taylor Adams, all of Reno, Nev., for appellees.

Before MATHEWS, HANEY, and HEALY, Circuit Judges.

HANEY, Circuit Judge.

The United States has appealed from an adverse judgment in an action brought by it to recover possession of certain lands.

In 1861, the lands in question were settled upon and occupied by the predecessors in interest of appellee. The boundaries of Pyramid Lake Indian Reservation, established by an executive order of March 23, 1874, included the lands in question, but they have never been occupied, since settled upon by appellee's predecessors, by any of the Indians for whom the reservation was established.

The Act of June 7, 1924, Ch. 311, 43 Stat. 596, 25 U.S.C.A. § 421 note, was an act entitled "An act for the relief of settlers and town-site occupants of certain lands in the Pyramid Lake Indian Reservation, Nevada". Section 1 of that act authorized the Secretary of the Interior "* * * to sell to settlers or their transferees, under such terms, conditions, and price per acre as the said Secretary may prescribe, any lands in the Pyramid Lake Indian Reservation, in the State of Nevada, that have been settled upon, occupied, and improved by said settlers and their transferees in good faith for a period of twenty-one years or more immediately preceding the passage of this Act * * * Provided further, That said sales shall be by private cash entry * * *."

Section 4 provided: "All sales in accordance with section 1 of this Act shall be made through the local land office within ninety days after the price of the land shall have been fixed by the Secretary of the Interior: Provided, That where entry is not made within the time specified, the United States shall enter upon the premises and take possession thereof for the use and benefit of the Piute Indians of the Pyramid Lake Indian Reservation."

The act contained no provision for repossession of the lands by the United States in the event of default in payment of part of the purchase price. It contained no provision expressly authorizing installment payments on the purchase price.

On March 3, 1925 the price of appellee's land was fixed by the Secretary of the Interior. The amount required to be paid by appellee was $7,395.70. At the same time, the Secretary stated that the "claimants of the lands listed will be allowed 90 days from February 7, 1925 * * * within which to pay the appraised price of the land * * *" On May 1, 1925, the Secretary, by telegram, authorized the claimants to either pay cash in full or one-fourth down and the balance in three equal installments with interest on the deferred payments at the rate of 5% per annum.

Appellee made application to purchase the lands in question on May 7, 1925, and paid $1,853.92, its application stating: "The prices to be paid for the said land are governed by the notice of March 3, 1925 and local Land Office notice dated May 1, 1925 under the same heading, or in the event any changes are made in the ruling of March 3, 1925 reducing the prices to be paid for the said land or the terms of payment the undersigned desires and requests the benefit thereof."

The application was allowed on September 16, 1925, but no further sum has been paid by appellee on the purchase price.

On September 26, 1931 the register of the proper land office was directed to notify appellee that it was allowed 90 days from receipt of notice within which to pay the balance of $5,541.78 principal with interest "or to appeal to the Secretary of the Interior failing in which the purchase, which is hereby held for cancellation will be finally canceled without further notice". Prior to the expiration of the 90 days, the decision was revoked and the register was directed to notify appellee that an extension of 30 days' time had been granted it to pay "one-third of the deferred payments, together with one-third of the accrued interest, the balance to be paid in two equal installments, with interest, in one and two years from the extension period". The register was further directed to notify appellee "that if the first amount is not paid on or before January 31, 1932, or an appeal filed the purchase, which is hereby held for cancellation will be cancelled, the money heretofore paid forfeited and the case closed without further notice".

On April 12, 1935, the register was directed to notify appellee that the purchase price of the land was reduced to $4,005.70, and the interest rate reduced to 4%, that appellee would be allowed 30 days from receipt of notice to pay the balance owing or the interest to December 31, 1934 only, and that unless either of such payments were made, or an appeal was taken to the Secretary of the Interior, appellee's entry would be canceled, its payment forfeited and the case closed without further notice. Appellee appealed to the Secretary of Interior on July 15, 1935, who held on November 25, 1935, that all interest due must be paid within 30 days after notice, that one-third of the unpaid principal now outstanding must be paid by August 27, 1936; that the unpaid principal would be computed on the basis of the reduced price above mentioned; and that interest would be computed from the date of default. Accordingly, the register was directed to notify appellee that $701.09 interest due as of March 31, 1936 must be paid within 30 days after notice, and if not so paid, the entry would be canceled without further notice.

Appellee made no response to any of the notices, and on May 13, 1936, the Commissioner of the General Land Office wrote the register that appellee's entry was thereby canceled. Notice of cancellation was given appellee, and on June 2, 1936, appellee was notified to vacate the lands in question on or before September 30, 1936.

Appellee failed to comply with the notice, and this action was filed on February 4, 1938. The complaint alleged that appellant, at all times since 1848, has been the owner and entitled to possession of the lands in question; that appellee's application to purchase such lands, pursuant to the Act of June 7, 1924, was accepted, but that appellee failed to make the required payments; and that appellee's entry had been canceled, and possession of the lands demanded on behalf of the proper tribe of Indians. Recovery of possession of the lands in question and for the issuance of all necessary writs to accomplish such object, were prayed for.

The answer contained denials and two affirmative defenses. In the first affirmative defense, appellee alleged that the lands had been occupied by it and its predecessors for more than 70 years, had been extensively improved, and by reason thereof it would...