United States v. Wallamet Val. & C.M. Wagon-Road Co.

• Decision Date: 12 May 1890
• Citation: 44 F. 234
• Parties: UNITED STATES v. WALLAMET VAL. & C.M. WAGON-ROAD CO. et al.
• Court: U.S. District Court — District of Oregon

44 F. 234

UNITED STATES v. WALLAMET VAL. & C.M. WAGON-ROAD CO. et al.

United States Circuit Court, D. Oregon.

May 12, 1890

Syllabus by the Court

In 1866 congress made a grant of lands to the state of Oregon, to aid in the construction of a wagon-road from Albany through the Cascade mountains to the eastern boundary of the state, and provided that the land might be sold as the work progressed on the certificate of the governor of the state, that the portion of the same coterminous with said land was complete. The state transferred the grant, without further condition or qualification, to the Wallamet Valley & Cascade Mountain Wagon-Road Company, which undertook the construction of the road; and, within the five years allowed therefor, procured certificates from the governors of the state that the road was completed as required by law. Soon after, the company sold the lands to the defendants Weill and Cahn, who are now the legal owners thereof, except a small portion which has been disposed of. In 1874 congress authorized the issue of patents for these lands to the state or its assignee, when it was shown by the certificates of the governor that said road was 'constructed and completed.' Between 1878 and 1883 a question was made before the department of the interior whether the company had completed the road according to law, and testimony was received thereon, pro and con, and after argument, the secretary of the interior directed patents to issue to the company, which was done on October 30, 1882, for 440,856 acres, in addition to a patent for 107,893 acres, issued on June 19, 1876. In consequence of this action by the secretary, the defendants believed that the due construction of the road was admitted by the complainant, and were thereby induced to expend a large sum of money on and about said property. In 1889, congress passed an act requiring the attorney general to bring a suit in this court against all persons claiming an interest in this grant to determine the question of construction of the road, the legal effect of the governor's certificates, the right of the United States to resume the grant, and to obtain judgment declaring the land coterminous with any uncompleted portions of the road forfeited, saving the rights of any bona fide purchasers; the suit to be tried and adjudicated like other suits in equity. On August 29, 1889, in pursuance of this authority, this suit was commenced to obtain the relief therein specified. The defendants Weill and Cahn filed two pleas to the bill, in one of which they set up the foregoing facts as an estoppel, and in the other the defense of a bona fide purchase for the valuable consideration, and without notice of any failure on the part of the company to comply with the terms and conditions of the grant. Held, (1) that this suit must be tried as a suit between private persons, in which the defendants may set up any defense, including estoppel, and the statute of limitations, that they could if the complainant was merely a private person; (2) that the claim of the complainant to set aside these patents, and declare these lands forfeited, is, under these circumstances a stale one, and therefore ought not to be allowed; (3) that the complainant, by the passage of the act of 1874, either accepted the certificates as conclusive evidence of the due construction of the road, or thereby waived all further performance of the condition on which the grant was made; (4) that the complainant, by the action of its executive department in issuing the patent of 1882, impliedly recognized and accepted the performance of such condition, and, having thereby induced the defendants to change their relation to said property, by expending a large sum of money thereon and thereabout, is now estopped to allege or claim that said condition was not performed; (5) that the certificate of the governor of Oregon was made, by the act of 1866, the only evidence of the compliance with the terms of the grant by the completion of the road; (6) that, upon the facts stated in the plea, the defendants are purchasers in good faith, and for a valuable consideration, within the saving clause of the act of 1889, and within the general principles of equity jurisprudence, and (7) that, on the case made by the bill and first plea thereto, it appears that the complainant ought not to prevail in this suit, and therefore it is dismissed.

Mr. Lewis L. McArthur, for the United States.

Mr. John A. Stanley, Mr. C. E. S. Wood, and Mr. Henry Ach, for defendants.

DEADY J.

By the act of July 5, 1866, (14 St. 89,) congress made a grant to the state of Oregon, to aid in the construction of a military wagon-road from Albany to the eastern boundary of the state, of the odd sections of the public lands, equal to three sections per mile of said road, to be selected within six miles thereof, together with the right of way for the same. The legislature of the state was authorized to dispose of the lands for the construction of the road, as the work progressed, and the governor of the state certified 'to the secretary of the interior' that any 10 miles of the same was completed. If the road was not completed within five years, no further sales were to be made, and the land remaining unsold should 'revert' to the United States. The act also provided that the road should be constructed with such 'width, graduation, and bridges, as to permit of its regular use as a wagon-road,' and in such other 'special manner' as the state might prescribe; and that the road should remain a public highway for the use of the government of the United States.

On October 24, 1866, the legislature of the state granted to the Wallamet Valley & Cascade Mountain Wagon-Road Company, hereinafter called the Wagon-road company,' a corporation theretofore formed, under the general laws of Oregon, for the purpose of constructing and maintaining a wagon-road from Albany across the Cascade mountains to the Deschutes river, 'all lands, right of way, rights, privileges, and immunities,' theretofore granted to the state 'for the purpose of aiding said company' in constructing the road described in the act of congress, 'upon the conditions and limitations therein prescribed. ' Sess. Laws, 58.

Between April 11, 1868, and June 24, 1871, both inclusive, there were issued by the governors of Oregon, and duly filed with the secretary of the interior, four certificates, which, taken collectively, showed that the road had been completed according to the acts of congress, and of the legislative assembly, to the eastern boundary of the state,-- a distance of 448.7 miles.

On June 18, 1874, congress passed 'An act to authorize the issue of patents for lands granted to the state of Oregon in certain cases,' (18 St. 80,) which reads as follows:

'Whereas, certain lands have heretofore, by acts of congress, been granted to the state of Oregon to aid in the construction of certain military wagon-roads in said state, and there exists no law providing for the issue of formal patents for said lands, therefore be it enacted * * * that, in all cases where 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 act, have transferred its interests in said lands to any corporation or corporations, in which case the patents shall issue from the general land-office to such corporation or corporations upon the payment of the necessary expenses thereof: provided, that this shall not be construed to revive any land grant already expired, nor to create any new rights of any kind, except to provide for issuing patents to lands to which the state is already entitled.'

On June 19, 1876, and October 30, 1882, patents were issued to the wagon-road company, under the act of 1874, the first one for 107,893 acres, and the second one for 440,856 acres, since which no patent has been issued for any portion of the grant.

On June 6, 1881, the secretary of the interior, in a communication addressed to the speaker of the house of representatives, estimated that the company is entitled, under the grant, to 1,346 sections of land, or 861,440 acres.

On March 2, 1889, congress passed an act making it the duty of the attorney general to cause a suit to be brought against all persons or corporations claiming an interest in the wagon-road grants made to the state of Oregon, including the one made by the act of 1866--

'To determine the questions of the seasonable and proper completion of said roads, in accordance with the terms of the granting acts, either in whole or in part; the legal effect of the several certificates of the governors of the state of Oregon of the completion of said roads; and the right of resumption of such granted lands by the United States; and to obtain judgment, which the court is hereby authorized to render, declaring forfeited to the United States all of such lands as are coterminous with the part or parts of either of said wagon-roads, which were not constructed in accordance with the requirements of the granting acts; and setting aside patents which have issued for any such lands; saving and preserving the rights of all bona fide purchasers of either of said grants or any portion of said grants, for a valuable consideration, if any such there be. Said suit or suits shall be tried and adjudicated in like manner, and by the same principles and rules of jurisprudence, as other suits in equity are therein tried.'

The act also provides, among...