United States v. Whitney

• Decision Date: 07 February 1910
• Citation: 176 F. 593
• Parties: UNITED STATES v. WHITNEY et al.
• Court: U.S. District Court — District of Idaho

176 F. 593

UNITED STATES v. WHITNEY et al.

United States Circuit Court, D. Idaho, Central Division.

February 7, 1910

C. H Lingenfelter, U.S. Atty., and B. E. Stoutemyer, for the United states.

T. D Cahalan, Chas. H. Carey, James B. Kerr, and Ernest W. Hardy for defendants.

DIETRICH District Judge.

The suit is brought to enforce a forfeiture of the title to a reservoir site located on public land on account of an alleged breach by the grantee of a condition subsequent embraced in the original grant. From the bill and answer upon which the cause is submitted, it appears that W. Grant Whitney, to all of whose property interests the defendant has succeeded, in the year 1900 acquired such rights in, and title to, a certain reservoir site in the state of Idaho as accrue to a qualified person who fully complies with all the terms and conditions of sections 18 to 21, inclusive, of an act of Congress entitled 'An act to repeal timber culture law, and for other purposes,' approved March 3, 1891 (Act March 3, 1891, c. 561, 26 Stat. 1095, 1101, 1102 (U.S. Comp. St. 1901, pp. 1535, 1570, 1571)), and an act amendatory thereof, approved May 11, 1898 (Act May 11, 1898, c. 292, Sec. 2, 30 Stat. 404 (U.S. Comp. St. 1901, p. 1575)), and with the rules and regulations of the Secretary of the Interior, adopted in pursuance thereof, excepting only the requirement that actual construction of the contemplated works be completed within the prescribed period of five years. Whitney located the site within 12 months prior to December 13, 1899, upon which date he properly filed maps thereof in the local land office and with the Secretary of the Interior, who upon October 18, 1900, duly approved the same and indorsed his approval thereon. Some preparation--the nature of which is not clearly disclosed-- was made to finance and carry out the project, but no actual construction work was done upon the ground, which still remains in its natural condition. The only excuses offered for the default in completing the work within the time prescribed by law are that the grantee was greatly harrassed by litigation involving the title to certain privately-owned lands embraced within the site, and, further, that some of complainant's agents circulated reports tending to cast a cloud upon the validity of his claims, and calling into question his right to hold the site for reservoir purposes. These excuses are not seriously urged by the defendant, and are dismissed as not presenting any substantial defense.

In its general features the act of March 3, 1891, is very similar to the railroad right of way act (Act March 3, 1875, c. 152, 18 Stat. 482 (U.S. Comp. St. 1901, p. 1568)). The language of section 18 is:

'That the right of way through the public lands and reservations of the United States is hereby granted * * * to the extent,' etc.

Section 19 provides that, upon the approval of the map by the Secretary of the Interior, such approval shall be noted upon the plats in the local land office, 'and thereafter all such lands over which such rights of way shall pass shall be disposed of subject to such right of way. ' It is accordingly held that as in the case of a railroad right of way the grant is in praesenti, and that title to the land shown upon the applicant's maps vests in him upon the approval thereof by the Secretary of the Interior. Noble v. Union River Logging Co., 147 U.S. 171, 13 Sup.Ct. 271, 37 L.Ed. 123;

Min., St. P. & Sault Ste. Marie Railroad Co. v. Doughty, 208 U.S. 251, 28 Sup.Ct. 291, 52 L.Ed. 4 74.

Conceding that Whitney thus became vested with the title to the reservoir site, complainant contends for a forfeiture of all rights so acquired, under and by reason of section 20 of the act, which, among other things, provides:

'That if any section of said canal or ditch shall not be completed within five years after the location of said section the rights herein granted shall be forfeited as to any uncompleted section of said canal, ditch, or reservoir, to the extent that the same is not completed at the date of the forfeiture.'

This requirement being in the nature of a condition subsequent, the rule undoubtedly is that failure to comply therewith does not operate ipso facto to divest the grantee of the title and reinvest the grantor therewith, but that to be effectual, the default must be followed with a declaration of forfeiture by some competent authority, and, the grant here being of a public nature, such declaration can be made only by an act of Congress, or in an appropriate judicial proceeding. United States v. De Repentigny, 5 Wall. 211, 267-268, 18 L.Ed. 627; Schulenberg v. Harriman, 21 Wall. 44, 62-64, 22 L.Ed. 551; Farnsworth v. Minnesota, etc., Ry., 92 U.S. 49, 66-68, 23 L.Ed. 530; McMicken v. United States, 97 U.S. 204, 218, 24 L.Ed. 947; Bybee v. Oregon, etc., Ry., 139 U.S. 663, 674-677, 11 Sup.Ct. 641, 35 L.Ed. 305; St. Louis, etc., Ry. v. McGee, 115 U.S. 469, 472-475, 6 Sup.Ct. 123, 29 L.Ed. 446; Railroad Co. v. Mingus, 165 U.S. 413, 430-434, 17 Sup.Ct. 348, 41 L.Ed. 770.

In Schulenberg v. Harriman, supra, the rule is stated to be as follows:

'In what manner the reserved right of the grantor for breach of the condition must be asserted so as to restore the estate depends upon the character of the grant. If it be a private grant, that right must be asserted by entry or its equivalent. If the grant be a public one, it must be asserted by judicial proceedings authorized by law, the equivalent of an inquest of office at common law, finding the fact of forfeiture and adjudging the restoration of the estate on that ground, or there must be some legislative assertion of ownership of the property for breach of the condition, such as an act directing the possession and appropriation of the property, or that it be offered for sale or settlement. At common law the sovereign could not make an entry in person, and therefore an office found was necessary to determine the estate, but, as said by this court in a late case, 'the mode of asserting or of resuming the forfeited grant is subject to the legislative authority of the government. It may be after judicial investigation, or by taking possession directly under the authority of the government without these preliminary proceedings.' In the present case no action has been taken either by legislation or judicial proceedings to enforce a forfeiture of the estate granted by the acts of 1856 and 1864. The title remains, therefore, in the state as completely as it existed on the day when the title by location of the route of the railroad acquired precision and became attached to the adjoining alternate sections.'

In the present case, there has been no congressional action looking to an enforcement of the forfeiture, and the only expression of the legislative will is to be found in the provision already quoted from the original grant. The precise question submitted for decision therefore is: Was it competent for the Attorney General to institute this proceeding, and is this court authorized to enforce the forfeiture by finding the breach and decreeing a restoration of the estate? Maintaining that the executive department is powerless to institute such a proceeding until Congress shall have expressly conferred special authority therefor, the defendant attaches great significance to the fact that in referring to judicial declarations of forfeiture the Supreme Court in the cases above cited almost invariably speaks of such actions not merely as judicial proceedings, but as judicial proceedings authorized by law, or instituted under authority of law.

It is, however, conceded that in none of these cases was the present question involved, and for support of her position defendant mainly relies upon United States v. Tenn. & Coosa Ry. Co. (C.C.) 71 F. 71, and United States v. N.P.R.R. co., 177 U.S. 435, 20 Sup.Ct. 706, 44 L.Ed. 836. In the former case the question arose under the provisions of a railroad land grant act and a subsequent general act declaring a forfeiture of lands theretofore granted in aid of railways where certain conditions had not been complied with. By the suit the United States sought to enforce a forfeiture of lands granted to the defendant, reliance, however, being placed not upon a condition specified in the general forfeiture act, but upon another condition subsequent prescribed by the granting act, and concerning which the general forfeiture act was silent. In the course of the opinion (by Bruce, District Judge) it is said:

'If it be correct that the lands in question are not within the terms of the forfeiture act, then how is it shown that it ever was the purpose of Congress to insist upon any forfeiture contained in any provision of the act? On the contrary, does it not show that no such purpose was ever entertained because never put into execution by the legislative act? It may be, and, indeed, the language used in the forfeiture act (cited supra) indicates that the lands in question may have been properly excluded from the terms of that act. * * * It is a clear implication from the action of Congress in the forfeiture act, September 29, 1890 (chapter 1040, 26 Stat. 496 (U.S. Comp. St. 1901, p. 1598)), that the Congress did not intend to insist upon any condition subsequent which existed in the granting act.'

It is doubtless true that the method of declaring a forfeiture is subject to legislative control, and if, as appears to be the case, the court construed the forfeiture act, or any other congressional act, as...