United States v. Hudspeth

• Decision Date: 11 September 1967
• Docket Number: 20906.,No. 20905,20905
• Citation: 384 F.2d 683
• Parties: UNITED STATES of America, Appellant, v. John HUDSPETH et al., Appellees. John HUDSPETH et al., Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

384 F.2d 683 (1967)

UNITED STATES of America, Appellant, v. John HUDSPETH et al., Appellees.

John HUDSPETH et al., Appellants, v. UNITED STATES of America, Appellee.

Nos. 20905, 20906.

United States Court of Appeals Ninth Circuit.

September 11, 1967.

COPYRIGHT MATERIAL OMITTED

Sidney Lezak, U. S. Atty., Portland, Or., Edwin L. Weisl, Jr., Asst. Atty. Gen., Roger P. Marquis, William M. Cohen, Attys., Lands Division, Dept. of Justice, Washington, D. C., for appellant & cross-appellee.

Bodie & Minturn, Prineville, Or. Cake, Jaureguy, Hardy, Buttler & McEwen, Donald W. McEwen, Portland, Or., for appellees & cross-appellants.

Before CHAMBERS, Circuit Judge, MADDEN, Judge of the Court of Claims, and BROWNING, Circuit Judge.

BROWNING, Circuit Judge:

The United States sought damages from the Hudspeths for cutting and removing timber from federally owned lands in Township 11 South, Range 19 East, Willamette Meridian, Oregon. The Hudspeths contended that the lands from which most of the timber was removed were privately owned lands adjoining those owned by the government. Thus the principal issue at trial was the proper location of the boundary between the properties.

The west side of Township 11 was officially surveyed by David Thompson in 1871. The remaining exterior lines of the Township, and its interior lines, were officially surveyed by John S. Kincaid in 1872. In 1958 and 1962, after the alleged trespasses, Floyd A. Brooks resurveyed a portion of the Township on instructions of the Secretary of Interior issued pursuant to 43 U.S.C. § 772 (1964).¹

The parties agree that the true boundary between their properties is determined by the position of the exterior and interior lines of the Township on the ground as located by the Thompson and Kincaid surveys. They also agree that even if these lines were incorrectly located on the ground by the Thompson and Kincaid surveys, the boundary fixed by reference to them could not be altered by the Brooks' resurvey, conducted after the government had transferred the land. 43 U.S.C. § 772 (second proviso); State of New Mexico v. State of Colorado, 267 U. S. 30, 41, 45 S.Ct. 202, 69 L.Ed. 499 (1925); United States v. State Inv. Co., 264 U.S. 206, 212, 44 S.Ct. 289, 68 L.Ed. 639 (1924); Cragin v. Powell, 128 U.S. 691, 698-699, 9 S.Ct. 203, 32 L.Ed. 566 (1888).

The pretrial order specified two issues of fact to be decided by the court: "1. Did plaintiff accurately resurvey" the lines in question "in accordance with the original surveys?"; and, "2. If issue No. 1 is answered in the affirmative, what volume of timber did defendants cut and remove from lands of the plaintiff?" A single issue of law was stated: "Are defendants bound by plaintiff's resurvey?"

The government's case consisted almost entirely of documents and testimony describing the procedures followed and the conclusions reached by Mr. Brooks. The boundary as located by Mr. Brooks revealed a substantial area of trespass.

In defense, the Hudspeths sought to show that Mr. Brooks had not accurately retraced the Kincaid lines. Their principal contention was that Mr. Brooks based his resurvey upon a number of markers which he mistakenly identified as original corner monuments placed by Mr. Kincaid. They offered evidence that none of these monuments were properly marked, and that none were located where they should have been according to the distances and directions in Mr. Kincaid's field notes. Their evidence indicated that several of the monuments had been placed by private surveyors long after Mr. Kincaid completed his work.

The Hudspeths contended that in fact Mr. Kincaid had placed few if any interior monuments in the Township.² They therefore introduced evidence locating the Kincaid lines on the ground without reference to the interior monuments relied upon by Mr. Brooks. This evidence projected the interior lines of the Township in accordance with the directions and distances in Mr. Kincaid's notes from monuments on the west boundary of the Township which both parties accepted as original monuments placed by Mr. Thompson a year prior to Mr. Kincaid's survey. This reconstruction indicated that Mr. Brooks' resurvey located the Township to the north and west of the ground position fixed by Mr. Kincaid. Locating the boundary in accordance with the Hudspeths' evidence eliminated most of the area of trespass.

The district court found: "Defendants, on the facts of this case, are not bound by * * * the Brooks' resurvey. Plaintiff has failed to establish by a preponderance of the evidence that defendants trespassed on plaintiff's land, the lines of which were established by the John S. Kincaid survey in 1872. The evidence establishes that such trespasses occurred, but since the plaintiff tried the case on the basis of the alleged dependent resurveys there was no way that the Court could fix the extent of such trespasses."³ The court concluded: "Defendants are entitled to a judgment of dismissal, without prejudice, to the right of the plaintiff, to institute an action based on the Kincaid survey."⁴

Based upon phrases culled from remarks of the trial judge and his findings and conclusions, the government argues that the court mistakenly thought Mr. Brooks sought to establish the pertinent lines of the Township anew rather than relocate the Thompson and Kincaid lines, and that the court rejected the line drawn by Mr. Brooks simply because his resurvey came after the alleged trespass in point of time.

But it is clear from the record as a whole that the district court fully understood that the boundary was determined by the Thompson and Kincaid lines; that the sole legitimate purpose of the Brooks' resurvey was to relocate and retrace those lines in the alleged trespass area; and that the factual issue which the parties submitted to the court was whether Mr. Brooks had accurately retraced the original lines. It is also clear that the action was dismissed because the court concluded that the government failed to carry its burden of proof on this issue for the reasons suggested in the above outline of the evidence. We are satisfied that the court did not clearly err in weighing the evidence.

The government advances the argument, in a variety of forms, that the district court should have accorded the Brooks' resurvey a more controlling role than that of mere evidence on a disputed question of fact. None of these contentions appears to have been made below. It is ordinarily inappropriate to reverse upon a ground not submitted to the district court. Chi Sheng Liu v. Holton, 297 F.2d 740, 744 (9th Cir. 1961); First Fed. Sav. & Loan Ass'n of Bremerton v. United States, 295 F.2d 481, 482-483 (9th Cir. 1961). This is true though the appellant be the United States. United States v. Hoth, 207 F.2d 386, 389 (9th Cir. 1953). We see no reason to depart from that principle here.

The first of these contentions is that the Hudspeths were precluded from challenging the results of Brooks' resurvey because they failed to exhaust their administrative remedies. The government points out that the Brooks' resurvey was authorized by the Secretary of Interior pursuant to statute (43 U.S.C. § 772); was conducted by an official surveyor in accordance with official standards appearing in the Manual of Surveying Instructions, Department of Interior, 1947; and was officially approved by the Chief of the Branch of Cadastral Engineering, Bureau of Land Management. They argue that approval of the resurvey constituted an administrative decision which the Hudspeths should have appealed to the Director of the Bureau of Land Management and the Secretary of Interior pursuant to 43 C.F.R. §§ 1842, 1844 (revised as of January 1, 1966), if they felt aggrieved.

Because the contention was not made below, it is not clear from the record that the suggested remedy was applicable to administrative action of this type, or that it was available to the Hudspeths. If it was an applicable and available remedy, the record does not show that the Hudspeths failed to exhaust it. Assuming that they did fail to exhaust it, there was no opportunity for the district court to consider (1) whether Congress intended that such a failure should preclude persons in the Hudspeths' position from asserting in subsequent litigation that the resurvey was in error and deprived them of bona fide rights based on the original survey contrary to the express proviso of 43 U.S.C. § 772;⁵ or (2) whether, even assuming an affirmative answer to this question, "the particular circumstances which exist make the case an appropriate one for relaxation of or strict adherence to the rule." Donato v. United States, 302 F.2d 468, 470 (9th Cir. 1962).

Similar considerations apply to the government's contention that the district court's review of the Brooks' survey should have been limited to determining whether it was contrary to law, not supported by substantial evidence, or arbitrary or capricious; and to its alternate argument that the judicial function was limited to inquiring whether the Brooks' resurvey was conducted in accordance with the Manual of Surveying Instructions (Dept. of Interior, 1947). As we have said, the government joined the Hudspeths in framing the issue as the simple question of fact, noted again below,⁶ to be determined by the court in the usual way. The...