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

• Decision Date: 12 May 1890
• Citation: United States v. Wallamet, V. & C.M. Wagon-Road Co., 42 F. 351 (9th Cir. 1890)
• Parties: UNITED STATES v. WALLAMET V. & C. M. WAGON ROAD CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

42 F. 351

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

United States District Court, D. Oregon.

May 12, 1890

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 were completed.If the road was not completed within 5 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 issuance 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 issuing of formal patents for said lands, therefore, be it enacted. * * * 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 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 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 judgments, which the court is hereby authorized to render, declaring forfeited to the United States all of such 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 other things, for the disposition of the lands in case the same are declared forfeited by the final determination of said suit.

In pursuance of this act, this suit was commenced by the attorney general on August 29, 1889, on behalf of the United States against the wagon road company and others, to have the lands included in said grant forfeited to the United States, and the patents issued therefor, as well as the certificates of the governors of Oregon, concerning the construction of the road, declared fraudulent and void, on the ground and for the reason, as alleged, that the road never was 'constructed and maintained' as required by law, either in whole or in part, so as to be a public highway, over which the property, troops, or mails of the United States could be transported; that the proceeds of said lands were not applied to the construction of the road; that the certificates of the governors were false, and were obtained on the false and fraudulent representations of the wagon road company, without examination on the part of said governors, and in one instance-- that of September 8, 1870,-- with his knowledge that the same was false; all of which was known to the defendants at the time they acquired an interest in these lands.

The bill also shows that by sundry conveyances, commencing with that of the wagon road company of August 19, 1871, to H. K. W. Clarke, and ending with that of Fred W. Clarke, the son of said H. K. W. Clarke, to Alexander Weill, of April 9, 1879, the title to said lands has become vested in the defendantsAlexander Weill and David Cahn, and that T. Edgenton Hogg, and certain corporations of which he is an officer, made defendants in the bill, claim an interest in said lands.

The defendants Weill and Cahn, by leave of the court, have filed two pleas to the bill and their joint and several answers in support thereof.

The first plea may be called an estoppel.

Briefly, it alleges that after these defendants had acquired the title to the lands in question, as stated in the bill, and in March, 1878, a complaint was received at the office of the secretary of the interior to the effect that the road had not been constructed as required by the act of July, 1866, in consequence of which the commissioner of the general land-office, with the approval of said secretary, appointed a special agent to examine the road, and report thereon; that in October, 1880, said agent reported that the road had not been constructed as required by law; that said report, and the evidence accompanying the same, was laid before congress, and in the house of representatives was referred to the committee on military affairs, which committee, upon consideration of said report and evidence, and evidence contradictory thereof, made a report in February, 1881, recommending that no action of congress by had in the premises.

In their report the committee say they'do not feel called upon to investigate the disputed question of fraud arising from the ex parte testimony submitted, or warranted in expressing an opinion in regard to the same, but believe that to be a matter within the province of the judicial, and not the legislative, department of the government,' and conclude as follows:

'(1) That the act of congress approved July 5, 1866, vested a present title to the land in question in the state of Oregon; (2) that by the act of the legislature, and the acts of the governor of Oregon, the title to said land was vested in the Wallamet Valley & Cascade Mountain Wagon Road Company; (3) that by the deed of said company to Clarke, and the subsequent deeds from Clarke and others, the title of said land is now lawfully vested in the present claimant, Alexander Weill; (4) that said title cannot be forfeited or annulled, or reinvested in the United States, excepting by a judicial proceeding; and that the same has become a vested right, which congress cannot impair or take away.'

That afterwards, on February 8, 1882, a communication from the secretary of the interior was laid before congress containing further charges, and alleged proofs that the road was not constructed as required by the act of July 5, 1866; and the matter was referred inthe house of representatives to the committee on public lands, and in the senate to the...