United States v. Otley

• Decision Date: 21 April 1942
• Docket Number: No. 9696.,9696.
• Citation: 127 F.2d 988
• Parties: UNITED STATES v. OTLEY et al.
• Court: U.S. Court of Appeals — Ninth Circuit

127 F.2d 988 (1942)

UNITED STATES v. OTLEY et al.

No. 9696.

Circuit Court of Appeals, Ninth Circuit.

April 21, 1942.

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Norman M. Littell, Asst. Atty. Gen., John F. Cotter, W. Robert Koerner, Charles R. Denny, and Clifford E. Fix, all of Washington, D. C., Benjamin Catchings, Senior Atty., United States Department of Agriculture, of Atlanta, Ga., and Carl C. Donaugh, U. S. Atty., J. Mason Dillard, Asst. U. S. Atty., and Hugh L. Biggs, Sp. Atty., all of Portland, Or., for appellant United States.

John W. McCulloch and Edwin D. Hicks, both of Portland, Or., and Robert M. Duncan, of Burns, Or., for appellants Otley et al.

Before DENMAN, MATHEWS, and HEALY, Circuit Judges.

DENMAN, Circuit Judge.

The United States appeals from a judgment holding that certain lands in Malheur Lake, a non-navigable body of fresh water in Oregon, were bordering upon lands transferred by fourteen of its patents to the predecessors in interest of certain appellees, and declaring they were lands conveyed by the patents. The United States is hereinafter called the "plaintiff" and these appellees, defendants below, the "patentees."

The areas of land under the lake so held to be conveyed were for each patent those between "ordinary" or "mean" high water lake boundary of the patent and two lines extending to the center of the lake from the opposite ends of the shore boundary, save as to certain islands in the lake. On making this declaratory judgment, the district court retained for future computation and decision the areas in the lake conveyed by each patent.

Certain of the patentees appeal from the decision that the lake islands were not included in the patented land.

Certain other appellants, hereinafter called the "adverse claimants," also appeal from the judgment's holding that, though lands in the lake were patented to certain of the patentees, they have not been acquired by the adverse claimants by holding them adversely for the Oregon statutory period.

Plaintiff's complaint alleges that it is the owner in fee simple of some 47,760.40 acres of unsurveyed land lying within the boundary lines of Lake Malheur Reservation, a refuge for the breeding and protection of migratory birds, reserved by order dated August 18, 1908, made by President Theodore Roosevelt.

The reserved area is more particularly described in a map attached to and made a part of the Executive Order entitled "Lake Malheur Reservation Oregon," and hereinafter called the Roosevelt map.

The map shows two unsurveyed connecting bodies of water, Lake Malheur and Lake Harney, surrounded by fractional lots of land with one or more of the boundary lines of each lot the shore line of one or the other of the lakes, the Reservation consisting of the fractional sections and unsurveyed land in the lakes. The plaintiff's exhibit of the Executive Order and map particularly describes the fractional lots (which include those patented to the patentees) as the "smallest legal subdivisions which touch the shore lines of Lakes Malheur and Harney," and is as follows:

It is hereby ordered that all smallest legal subdivisions which touch the shore line of Lakes Malheur and Harney and the streams and waters connecting these lakes in township twenty-five south, ranges thirty-two, thirty-two and one-half and thirty-three; township twenty-six south, ranges twenty-nine, thirty, thirty-one, thirty-two and thirty-three; township twenty-seven south, ranges twenty-nine, twenty-nine and one-half, thirty and thirty-two, all east of the Willamette Meridian, Oregon, together with all islands and unsurveyed lands situated within the meander lines of said lakes and connecting waters, as segregated by the broken line shown upon the diagram hereto attached and made a part of this Order, are hereby reserved, subject to valid existing rights, and set aside for the use of the Department of Agriculture as a preserve and breeding ground for native birds. The taking or destruction of birds' eggs and nests, and the taking or killing of any species of native bird for any purpose whatsoever, except under such rules and regulations as may be prescribed by the Secretary of Agriculture, is prohibited, and warning is expressly given to all persons not to commit within the reserved territory any of the acts hereby enjoined. This reserve to be known as Lake Malheur Reservation.

THEODORE ROOSEVELT August 18, 1908. THE WHITE HOUSE, No. 929.

The complaint applies to the Lake Malheur area of the reserve the term "Malheur Division." It alleges that the exterior boundaries of the Malheur Division, consisting of the 47,760.40 acres of unsurveyed area, except the closing line between the two lakes, were surveyed by one John H. Neal for the General Land Office. This survey, hereinafter called the Neal survey, coincides with the "shore line of Lake Malheur" as platted in the Roosevelt map included in the reserve order.

The complaint also alleges that the defendants, although they have no right or title thereto, claim an interest in portions of the 47,760.40 acres of the Lake Malheur area as shown on the Roosevelt map and that they have been and are trespassing upon the plaintiff's reserved lands, using them for pasturage and hay cutting and other economic uses, for which plaintiff is entitled to damages and to rental for the occupancy thereof.

The complaint also alleges that the interests of the defendants are conflicting inter se and that they are large in number and hence they are joined in a single suit. Its prayer is for a determination of plaintiff's and defendants' rights in the Malheur Division of the Lake Malheur Reservation and, in effect, this is a suit by the plaintiff to quiet its title to the entire area shown on the above map as Lake Malheur.

All the defendants answered, denying the allegations of the complaint concerning the plaintiff's claim of title to the lands described on the Roosevelt map as Lake Malheur, which front the patented border lots of those having the "valid existing rights" referred to in the Order. Certain defendants claimed certain lands within that area by virtue of either homestead or desert land patents which their predecessors in interest received from the plaintiff. These patents were to certain of the bordering lots, which they claim, under the law of Oregon controlling the plaintiff in transferring its lands in that state, also conveyed the lands in the lake from their lake shore boundaries to the center of the lake.

The answers of the adverse claimants set up they claimed by adverse possession land in the lake bed by virtue of holding it adversely to the fractional lot patentees alleged to own the land between their shore boundaries and the lake center.

Each of the defendants sets up a counter-claim describing his fractional lot as bordering on a true meander line of Lake Malheur as shown in the Neal survey or describing the lands claimed adversely in the lake area, and they joined in the prayer that the rights of the parties in the lake lands be determined.

The plaintiff replied to the effect that the body of water known as Lake Malheur was vagrant in nature and varying widely in elevations and area with the seasons of the year, and alleged that the meander line of the Neal survey did not truly meander the lake at its mean high water mark nor approximately at the water levels of Lake Malheur nor at the existing shore line thereof, and that the plats of the fractional sections shown as bordering on the shores of the lake in the Roosevelt map had the meander line merely as a boundary thereof and not as the meander line of the lake; and that "neither the said Commissioner of the General Land Office nor the said Surveyor General nor the said John H. Neal knew the elevations within said Malheur Division and as a result of their ignorance thereof and of the gross inaccuracies of the said survey lines as `meander lines' the General Land Office grossly and erroneously approved and platted the said survey so as to show all of the said Malheur Division as `Malheur Lake' and the above described fractional townships and lots as abutting thereon and extending to the shore lines thereof. That if in fact the waters within said Malheur Division constituted a lake, its boundaries did not and never have coincided even approximately with the said Neal Survey Lines. That insofar as said waters constituted a permanent body of water, its true boundaries would have more accurately coincided with the contour line of an elevation of 4090 feet above sea level."

The case had an extended trial at which a great volume of evidence was introduced. The district court held with the defendants that it had been shown affirmatively that the plats were correctly drawn to border upon the Neal meander line which was a true meander line of the lake; that the lake shore was their true boundary, and that the patents covered the adjoining land in the lake.

With respect to the issue tendered by the adverse claimants, who offered proof that they had fenced in lake bed land of certain patentees for the statutory period, the district court made no findings, but adjudged they had no title by adverse possession. These appeals followed.

A. Appellees' patents embody the plats showing their upland borders in Malheur Lake, and hence by their terms convey the adjoining land in the lake bottom. The suit, in effect, is one to cancel fourteen patents as to part of the land they convey in which an exceptional heavy burden rests upon the United States.

It is agreed by the parties that the Oregon law controls the transfers of land by the patents and that if the fractional lots, which contain no reservation or exception of the lake land, are bounded (as described in the Roosevelt map) by the mean or ordinary high water mark of the shores of Malheur Lake, they also conveyed to the patentees the land in the bed of the lake bounded by the shore line of the patent and two lines from the opposite ends of...