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

• Decision Date: 18 May 1892
• Citation: 54 F. 807
• Parties: UNITED STATES v. WILLAMETTE VAL. & C.M. WAGON-ROAD CO. et al.
• Court: U.S. District Court — District of Oregon

54 F. 807

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

United States Circuit Court, D. Oregon.

May 18, 1892

A. H Tanner and Franklin P. Mays, for the United States.

C. E S. Wood, for defendants.

GILBERT Circuit Judge.

A bill was filed on behalf of the United States against the Willamette Valley & Cascade Mountain Wagon-Road Company and other defendants, setting forth the act of congress of July 5, 1866, which grants to the state of Oregon, to aid in the construction of a wagon road from Albany to the eastern boundary of the state, certain sections of the public lands situate along the line of said road, together with a right of way for the same, and confers upon the legislature power to dispose of the lands as the work progressed, upon the issuance of a certificate of the governor of the state to the secretary of the interior that any 10 miles of the same were completed; but provides that, if the road is not completed in five years, no further sales shall be made, but the land remaining unsold shall revert to the United States; and further provides that the road shall be constructed of such width, grades, and bridges as to permit of its regular use as a wagon road, and in such other special manner as the state may prescribe, and that the road shall remain a public highway for the use of the government of the United States.

The bill alleges that the state of Oregon, by an act passed October 24, 1866, transferred to the corporation defendant all lands and rights so granted to the state by congress, for the purpose of aiding the corporation in constructing the road mentioned in the act. The bill further states that by an act of congress of July 15, 1870, a change was made in the route of the road, and that the corporation defendant thereupon, by supplemental articles of incorporation changed the line of its road to conform to the act of congress; that on the 11th day of May, 1868, the officers of the corporation fraudulently represented to the governor of Oregon that the road had been constructed as required by law for a distance of 180 miles from Albany, and thereby fraudulently procured a certificate to that effect from the governor; that on the 8th day of September, 1870, the 9th day of January, 1871, and the 24th day of June, 1871, further certificates were fraudulently procured, to the effect that the remainder of the road to the state line had been completed; but the bill alleges that the road never was constructed.

The bill further alleges that by act of congress of June, 1874 patents for the granted lands were authorized to be issued to the state of Oregon, or to any corporation to which its rights had been transferred 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 Oregon, as in said acts provided, to have been constructed and completed: '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 for lands to which the state is already entitled.'

The bill then avers that patents were issued on June 19, 1876, for 107,893.01 acres of the lands, and on October 30, 1882, for 440,856.72 acres. The prayer of the bill is that all of the lands granted to the state by the act of July 5, 1866, be decreed to be forfeited to the United States, and restored to the public domain, and that the certificates and patents be declared fraudulent and void.

To this bill the defendants Weill and Cahn first filed two pleas, with accompanying answers. The first plea set up that the patent of October, 1882, was issued after due examination by the secretary of the interior, and in pursuance of the act of June, 1874, and that said defendants, relying thereon, had paid taxes and other expenses on said lands, and had sold portions thereof with warranty of title, and that it would be inequitable for the United States to claim a forfeiture of the lands. The second plea averred that in 1871 these defendants, believing that the road had been fully completed, as certified by the governors of Oregon, made purchase of the lands in good faith, and paid therefor $161,400. The pleas were set down for argument upon their sufficiency, and it was held upon the facts contained in the first plea that the claim of the government was a stale claim, and that lapse of time was a bar to the suit, and that the second plea was good, for that it showed that the defendants were bona fide purchasers, (42 F. 351;) and the bill was dismissed. Appeal was taken to the supreme court, and the decision of the circuit court was reversed; the supreme court holding that the defense of laches could not be made as against the government, and that the United States should have the opportunity to file replication, and put in issue the allegations of the pleas, (11 S.Ct. 988.) When the case was remanded to this court, the defendants Weill and Cahn, instead of relying upon the pleas, answered the bill upon its merits, and the case now comes before the court on exception to portions of the answer, for impertinence.

The first exception is to that portion of the answer which responds to the allegation of the bill that the defendant corporation in constructing the wagon road, was bound to construct the same in the manner prescribed by an existing statute of the state of Oregon, enacted October 14, 1862. The points involved in this exception were ably discussed by Judge Sawyer in the case of U.S. v. Dalles Military Road Co., 40 F. 114, in which he held that the act of congress of February 25, 1867, granting the lands to the state, and...