United States v. Washington Improvement & Development Co.

• Decision Date: 15 July 1911
• Docket Number: 1,552.
• Citation: 189 F. 674
• Court: U.S. District Court — District of Washington
• Parties: UNITED STATES v. WASHINGTON IMPROVEMENT & DEVELOPMENT CO. et al.

189 F. 674

UNITED STATES v. WASHINGTON IMPROVEMENT & DEVELOPMENT CO. et al.

No. 1,552.

United States Circuit Court, E.D. Washington.

July 15, 1911

Oscar Cain, U.S. Atty., E. C. Macdonald, Asst. U.S. Atty., and A M. Craven, Sp. Asst. U.S. Atty.

F. V Brown, L. F. Chester, and W. A. Monten, for defendants.

RUDKIN District Judge.

By Act Cong. June 4, 1898, c. 377, 30 Stat. 430, the United States granted to the Washington Improvement & Development Company and to its assigns a right of way for its railway, telegraph and telephone lines through the Colville Indian reservation in the state of Washington, beginning at a point on the Columbia river near the mouth of the Sans Poil river, running thence in a northerly direction to the international boundary line between British Columbia and the state of Washington together with certain incidental rights and privileges not material to our present inquiry. Section 3 of the act provided that the company should cause maps showing the route of its located lines through the reservation to be filed in the office of the Secretary of the Interior; that, when a map showing any portion of the railway company's located line was filed as therein provided, the company should commence grading such located line within six months thereafter, or such location should be void; and that such location should be approved by the Secretary of the Interior in sections of 25 miles before the construction of any such section should begin. Section 5 of the act provided that the rights therein granted should be forfeited by the company, unless at least 25 miles of the railroad should be constructed through the reservation within two years after the passage of the act; and by section 6 Congress reserved the right to alter, amend, or repeal the act in whole or in part.

It appears from the bill of complaint filed on behalf of the government that the defendant Washington Improvement & Development Company accepted the rights and privileges granted under the provisions of the act, and filed maps from time to time in the office of the Secretary of the Interior, showing the route of its located lines through the reservation, which maps were approved by the Secretary of the Interior on divers dates between June 23, 1899, and November 27, 1899; that the Washington Improvement & Development Company did not commerce grading its located lines or any part thereof within six months after the filing of such maps, or at all; that it did not construct or cause to be constructed through the reservation any portion of its railroad within two years after the passage of the act, or at all, and that no part of the railroad has been constructed or is now under construction by the Washington Improvement & Development Company or its assigns; that on the 20th day of July, 1906, the Washington Improvement & Development Company assigned to the Washington & Great Northern Railway Company all rights and privileges granted or acquired under or by virtue of the act of Congress; that thereafter the Washington & Great Northern Railway Company made a like assignment to the Great Northern Railway Company; that neither the Washington & Great Northern Railway Company or the Great Northern Railway Company at any time located any portion of its railroad through the reservation, and that no portion of the railroad has been constructed through the reservation by either of said companies within two years after the passage of the granting act, or at all; that the United States elects to forfeit all rights and privileges granted under the act of Congress by reason of the failure on the part of the defendants to comply with the terms thereof, and the prayer of the bill is that the rights and privileges granted to the defendants and each of them be declared forfeited to the United States.

The defendants have interposed a demurrer to the bill on three grounds, but the second and third grounds of demurrer are mere amplifications of the first, which is as follows:

'That said proceeding is instituted, and said bill of complaint is filed, without any lawful authority therefor.'

The question is thus presented whether the United States may maintain a suit in equity to forfeit a land grant such as this for breach of a condition subsequent, in the absence of a declaration of forfeiture by Congress, or express authority from Congress for the institution of such a proceeding. Of course, if a suit will lie under such circumstances, the Attorney General is the proper officer to institute it, for, as said by the court in United States v. San Jacinto Tin Co., 125 U.S. 273, 8 Sup.Ct. 850, 31 L.Ed. 747:

'If the United States in any particular case has a just cause for calling upon the judiciary of the country, in any of its courts, for relief by setting aside or annulling any of its contracts, its obligations, or its most solemn instruments, the question of the appeal to the judicial tribunals of the country must primarily be decided by the Attorney General of the United States. That such power should exist somewhere, and that the United States should not be more helpless in relieving itself from frauds, impostures, and deceptions than the private individual, is hardly open to argument. The Constitution itself declares that the judicial power shall extend to all cases to which the United States shall be a party, and that this means mainly where it is a party plaintiff is a necessary result of the well-established proposition that it cannot be sued in any court without its consent. There must, then, be an officer or officers of the government to determine when the United States shall sue, to decide for what it shall sue, and to be responsible that such suits shall be brought in appropriate cases.

The attorneys of the United States in every judicial district are officers of this character, and they are by statute under the immediate supervision and control of the Attorney General. How, then, can it be argued that, if the United States has been deceived, entrapped, or defrauded into the making under the forms of law of an instrument which injuriously affects its rights of property, or other rights, it cannot bring a suit to avoid the effect of such instrument thus fraudulently obtained, without a special act of Congress in each case, or without some special authority applicable to this class of cases, while all other just grounds of suing in a court of justice concededly belong to the department of justice, and are in use every day?'

But the question still remains, Has a right of action accrued in favor of the government under the facts set forth in the bill? The opinions of the different Attorneys General, the declarations of the Supreme Court of the United States, the legislation of Congress, and the practice of all departments of the government through a long series of years convince me that no such right exists. By section 1 of Act Cong. May 26, 1824, c. 165, 4 Stat. 47, the United States granted to the state of Indiana a right of way for a canal 'by which to connect the navigation of the rivers Wabash and Miami with Lake Erie.'

Section 2 of the act provided:

'That, if the said state shall not survey, and direct by law said canal to be opened, and furnish the Commissioner of the General Land Office a map thereof, within three years from and after the date of this act; or, if the said canal be not completed, suitable for navigation, within twelve years thereafter; or, if said land, hereby granted, shall ever cease to be used and occupied for the purpose of constructing and keeping in repair a canal, suitable for navigation; the reservation and grant aforesaid shall be void, and of noneffect.'

By resolution dated March 19, 1878, the United States Senate directed the Attorney General to report whether the lands and rights granted by the United States to the state of Indiana under the above act had reverted to the United States, 'and if so, what action upon the part of the United States, legislative or otherwise, is necessary and proper to enable it to obtain possession thereof. ' In response to this resolution Attorney General Devens, after discussing the nature of the grant, reported as follows:

'In response, therefore, to so much of the resolution as directs me to report 'what action on the part of the United States, legislative or otherwise, is necessary,' I have to state that I am of the opinion that Congress may provide by appropriate legislation for the appointment of a commissioner to examine said canal and report whether in fact it has been abandoned and ceased to be used as a public highway. If such commissioner is appointed, and his report shall show that the canal has been abandoned, Congress may then declare a forfeiture, or direct that proper legal proceedings be instituted by the Attorney General in the courts to have a forfeiture declared.' 16 Opinions of Attorneys General, p. 250.

By section 3 of Act Cong. July 27, 1866, c. 278, 14 Stat. 292, the United States granted to the Atlantic & Pacific Railroad Company certain lands in alternate odd sections on each side of its line of road to aid in its construction. Section 8 of the act provided: 'That each and every grant, right, and privilege herein are so made and given to and accepted by said Atlantic and Pacific Railroad Company, upon and subject to the following conditions, namely: That the said company shall commence the work on said road within two years from the approval of this act by the President, and shall complete not less than fifty miles per year after the second year, and shall construct, equip, furnish, and complete the main line of the whole road by the fourth day of July, Anno Domini, eighteen hundred and seventy-eight.'

Application was made under section 4 of the...