Zager v. United States, 65-C-171.
| Decision Date | 25 July 1966 |
| Docket Number | No. 65-C-171.,65-C-171. |
| Citation | 256 F. Supp. 396 |
| Parties | Harold Wesley ZAGER and Carol Jean Zager, Husband and wife, Plaintiffs, v. UNITED STATES of America, Stewart Udall, Secretary of the Interior, and the State of Wisconsin, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Robert J. Kay, Madison, Wis., for plaintiffs.
James B. Brennan, U. S. Atty., by Robert J. Lerner, Asst. U. S. Atty., Milwaukee, Wis., for defendants, United States and Stewart Udall, Secretary of Interior.
This action was originally brought by the plaintiffs against the United States of America, Stewart Udall, Secretary of the Interior, and the State of Wisconsin in the Circuit Court of Forest County, Wisconsin. It was removed to this court upon petition for removal by the United States under Title 28 U.S.C.A. § 1442(a) on behalf of the defendants United States of America and Stewart Udall, Secretary of the Interior.
The complaint alleges that plaintiffs are the joint owners in fee simple of the following described premises, situated in the County of Forest, State of Wisconsin, to wit:
"Government Lot Four (4), in Section Seven (7), Township Thirty-eight (38) North, of Range Twelve (12) East of the Fourt (sic) Principal Meridian, and also that portion of Lot 4 which is presently designated as portions of Lot Six (6) and Nine (9), which lies West of the eastern boundary line of Lot 4 as extended North from the meander line, as shown on the original survey approved December 20, 1859, to the actual shoreline of Lake Julia, excluding Lots Seven (7) and Eight (8), lying within the described area."
Plaintiffs contend that the above-described land was part of a grant to the State of Wisconsin in 1859 from the United States of America pursuant to the Swamplands Act of February 28, 1850. Said land, known as Government Lot Four, was described as bordering on Lake Julia and was transferred by patent in 1898 from the State of Wisconsin to plaintiffs' predecessors in title. From 1898 to 1941, plaintiffs' predecessors in title exercised dominion and control over Government Lot Four, including a certain strip of land comprising approximately 32 acres, lying between the meander line as said land was originally surveyed and the actual shoreline of Lake Julia.
In 1938, the Bureau of Land Management, a division of the Department of the Interior of the United States, acting under and pursuant to the direction of the Secretary of the Interior, conducted a resurvey of the above-described land, and upon completion of the resurvey in 1941, the Bureau of Land Management declared that any land lying between the meander line of Lake Julia and Government Lot Four, as shown on the original survey approved December 20, 1859, and the actual shoreline of Lake Julia was omitted public lands and proceeded to take possession and control of said lands which comprised approximately 32 acres.
Plaintiffs contend that such possession and control was contrary to the paramount rights of their predecessors in title and as continued presently is contrary to their paramount rights. Plaintiffs allege that the Secretary of the Interior acted beyond the scope of his delegated powers and authority under the laws of the United States in conducting a resurvey of the land in question and in occupying and controlling that part of such land located between the original meander line of Lake Julia and Government Lot Four and the actual shoreline of Lake Julia. Plaintiffs have demanded of defendants, United States of America and Stewart Udall, Secretary of the Interior, that plaintiffs be placed in possession of said land, which demand has been rejected.
Plaintiffs pray that this court quiet plaintiffs' title to the above-described property and adjudge that none of the defendants have any right, title, or interest in or to said property, and pray that defendants, United States of America and Stewart Udall, Secretary of the Interior, and their agents and officials, be ejected from said property and be restrained from interfering with plaintiffs' quiet and peaceful enjoyment of said premises. If this court deems that plaintiffs' title to the above-described premises cannot be quieted in them without further ministerial actions of the Secretary of the Interior and the State of Wisconsin, then plaintiffs further pray that this court command the performance of such ministerial actions.
This case is presently before the court upon the motion of the defendants, the United States of America and Stewart Udall, Secretary of the Interior, to dismiss the complaint of the plaintiffs due to the alleged sovereign immunity of the United States and the Secretary of the Interior and the alleged lack of statutory authorization for the suit in question.
It is an ancient doctrine that a sovereign cannot be sued without its consent. The United States is a sovereign. Under traditional law, therefore, it cannot be sued without its consent.* United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888 (1940). Congress is the organ through which the United States gives its consent.
There are three ways in which this consent is given: one is by statute specifically authorizing suit against the United States in a federal district court or State court; two is by allowing suit before the Court of Claims; and three is by passage of a private law granting redress.
Section 2410 of Title 28 U.S.C.A. provides that the United States may be named a party to an action in a federal district court or State court having jurisdiction over the subject matter when the United States has or claims a mortgage or other lien interest. Plaintiff asks this court to extend the meaning of Title 28 U.S.C.A. § 2410 to include situations where the United States claims a title interest as well as a lien interest. Then it could be held that Congress has consented to this...
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Murray v. United States
...States, 294 F.2d 734 (D.C.Cir.1961) (section 2410 does not waive immunity when the United States claims title) and Zager v. United States, 256 F.Supp. 396 (E.D.Wis.1966) (same) and Haggard v. Lancaster, 320 F.Supp. 1252 (N.D.Miss.1970) (no waiver in action to enjoin use of park for access t......
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Jules Hairstylists of Maryland v. United States, Civ. A. No. 17190.
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Brown v. Johnson
...over property on which the United States claims title. Anderson v. United States, 229 F.2d 675 (5th Cir. 1956); Zager v. United States, 256 F.Supp. 396 (E.D.Wis.1966). Until recently, such suits were barred by sovereign immunity and the sovereign's failure to give consent to be sued. Malone......
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San Juan County v. Russell, C 4-71.
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