Donley v. Van Horn

Plaintiff, to whom had been issued a patent to the land in controversy, sued for recovery of the premises and to quiet title. The lower court adjudged plaintiff to be the owner and entitled to possession. From this judgment defendant appeals.

The land, which is situated in Imperial County, has been in the exclusive occupancy of defendant ever since some time prior to December 26, 1911, on which, date he filed in the proper office, viz., the local land office at Los Angeles, his

[2] On May 10, 1915, while the land still was withdrawn from entry or sale under the secretary’s withdrawal order of April 2, 1909, plaintiff, Avho claimed to be the owner of a certain section of state school land for which the state had issued to her a patent, made selection of the land in controversy under the act of May 2, 1914 (38 U. S. Stats. 372), in lieu of her school land, and a patent of the lieu land so selected by her was issued to her by the United States on August 9, 1916. The' act imder which plaintiff made her lieu selection—the act of May 2, 1914—provides that “the state of California, or its grantees, may, with the approval of the Secretary of the Interior, reconvey to the United States any of the lands heretofore granted to said state in the townships authorized to be resurveyed by the act of July 1, 1912, . . . and select. in lieu thereof ah equal amount of vacant, unappropriated, surveyed, unreserved,

Appellant contends that, upon the facts found by the trial court—facts that appear on the face of the record of the Land Department—the land, when respondent’s lieu selection received the approval of the Secretary of the Interior, was not “vacant” and “unreserved” public land, within the meaning of the act of May 2, 1914; that, therefore, the Land Department had no authority to issue the patent, and no title passed to respondent. We are constrained to hold that this is an unescapable conclusion.

All the controlling facts in the case are disclosed by the records of the land office, copies of which were incorporated into the trial court’s findings. The following summary, based upon the land office records and found by the trial court to be true, will suffice for an understanding of what we conceive to be the ultimate question in the case: Subsequently to the withdrawal of the land from entry on April 2, 1909, under the first form of withdrawal authorized by the act of June 17, 1902, viz., on March 17, 1913, the reclamation service reported to the Secretary of the Interior that certain of the lands so withdrawn, including the land in controversy, were not necessary to the reclamation project, and recommended the revocation of the withdrawal order. The day following the filing of this report, viz., March 18, 1913, the assistant secretary of the interior indorsed on the report of the. reclamation service an order approving the recommendation. This indorsement did not operate as an absolute and immediate revocation of the withdrawal order of April 2, 1909. For, by the express terms of this order of March 18, 1913, so indorsed on the report of the reclamation service, the assistant secretary directed the commissioner of the general land office to ascertain whether the lands included in the report of the reclamation service had been otherwise withdrawn or reserved by law, and, if not, to cause notice to be given that they will be open to settlement and entry at times to be fixed by the commissioner. Before such notice could be given, viz., on April 17, 1913, the order of March 18, 1913, was suspended, after a copy thereof had been forwarded to the register and receiver of the Los Angeles land office. The order that the assistant secretary had so indorsed on the report of the reclamation service on

On December 26, 1911,- defendant, as we already have stated, tendered to the local land office in Los Angeles an application to make a desert land entry on the land in controversy. This application was rejected on the ground that the land had been withdrawn from entry by the withdrawal order of April 2, 1909, and that such withdrawal was still in full force and effect. Defendant appealed successively to the commissioner of the general land office and to the Secretary of the Interior, by both of whom his right to make such entry while the land was withdrawn for irrigation works was denied. During all these times defendant was a citizen of the United States, possessed of all the qualifications essential to qualify him to make entry upon such of the public lands as might be open to entry and legal settle

On February 17, 1914, which was prior to the passage of the act of May 2, 1914, and while the land was still withdrawn from settlement or entry under the secretary’s withdrawal order of April 2, 1909, plaintiff wrote a letter to the Land Department expressing a willingness to select the land in controversy in lieu of her state school land. The first assistant Secretary of the Interior, in a letter dated March 21, 1914, addressed to plaintiff, informed her that if the bill then pending in Congress, and which subsequently was enacted as the act of May 2, 1914, became a law, its provisions would enable her to make the selection. “In the meantime,” so the letter runs, “the Commissioner of the General Land Office has been directed to withhold any of the above tract that you desire to select from restoration to entry. Should H. R. 122 be enacted into law proper steps will be taken by this Department to enable you to make selection of the land in lieu of that claimed by you under the grant from the State of California.” On November 14, 1914, the Secretary of the Interior notified the commissioner of the general land office that, in view of the fact that the department had knowledge of the character and status of the land that plaintiff desired to select under the act of May 2, 1’914, the usual affidavit as to the character and status of lieu land, required by the departmental regulations to be

On June 27,1915, the commissioner of the general land office transmitted to the Secretary of the Interior a written report wherein he recommended approval of plaintiff’s lieu selection. This report to the Secretary of the Interior, after reciting the complications and conflicts involved in plaintiff’s school section and stating that plaintiff is willing to reconvey her school land to the United States, and, in lieu thereof, select the land in controversy, and after reciting the facts showing the exact status of the land, including defendant’s attempted desert land entry and his occupancy, concludes with the following recommendations: (1) That the withdrawal order of April 2, 1909, be revoked and the fixing of dates for settlement and entry waived; and (2) that plaintiff’s selection, made May 10, 1915, be approved. On November 3, 1915, these recommendations were approved by the following order indorsed on the commissioner’s written report: “Nov. 3, 1915. Approved and it is so ordered. Andrieus A. Jones, First Assistant Secretary.” Thereafter, on August 9, 1916, the United States issued to plaintiff the patent under which she claims title to the land in controversy.

As we already have pointed out, the act under which respondent claims that the Land Department was authorized to issue the patent to her, the act of May 2, 1914, expressly provides that the land to be selected in lieu of the base land shall be “vacant,” unappropriated, surveyed, unreserved, nonmineral public lands.” And, as we have shown, if the

[4] “Vacant lands,” says the United States circuit court of appeals in Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 13 , [ 61 L. R A. 230 , 50 C. C. A. 89 ], “are such as are absolutely free, unclaimed, and unoccupied.” (Italics ours.) Public land is not vacant if it is lawfully occupied by a settler under a claim and color of right. “The land was not vacant and open to settlement . . . because it was then occupied by the defendants’ grantors under a claim and color of right. It matters not that they had not at that time acquired any rights against the United States. . . . whatever his rights may be, the fact that the miner is in actual possession without having made any location at all shows that the land is not ‘vacant.’ ” (Id.) [5] If the occupancy be unlawful and the occupant but a mere trespasser, as is the ease where the land occupied by the settler is withdrawn from settlement and entry, the land, doubtless, should be deemed to be “vacant,” notwithstanding the settler’s actual occupancy. But if, during the occupancy of land that, for any reason, has been withdrawn from settlement and entry, it again is thrown open to settlement, the settler’s occupancy ceases to be unlawful, it immediately becomes lawful, he no longer is a trespasser or intruder, and the land so occupied by him immediately ceases to be within the category of “vacant” land.

[6] Reserved land is land that has been withheld or kept back from sale or disposition. The word “reserved” is defined in the Standard Dictionary as “retained; kept back.” Pending its withdrawal for the Yuma reclamation project, the land in controversy was “kept back” by the government from sale. It was withheld or reserved; it was not “unreserved” public land, within the meaning of the act of May 2, 1914. It is not necessary, as respondent contends, that, to be “reserved” land, the reservation should be of a more or less permanent character, as in the case of reservations for Indians, forests, forts, arsenals, and the like. In Northern

[7] This brings us to the ultimate question in the case, viz.: Was the land, at the time of the approval of respondent’s selection, both vacant and unreserved 1 Her counsel say that “the revocation of the withdrawal of the selected land and the approval of the selection thereof was made by the sanie indorsement and at the same instant, strictly in uno flatu.” It evidently is respondent’s contention that, notwithstanding appellant’s continued and uninterrupted occupancy, with the intent to make entry just as soon as it again should be thrown open to settlement, the land continued to be “vacant” up to and including the very instant when, by the revocation of the withdrawal order and. the approval of plaintiff’s selection, it ceased to be re

This claim that the revocation of the withdrawal order and the approval of respondent’s lieu selection took place at the same instant, without any interval of time whatever, is the Achilles heel in respondent’s contention that she acquired a right to the land under her lieu selection. If the revocation of the withdrawal order and the approval of respondent’s lieu selection were so absolutely synchronous that no instant of time whatever, however short, elapsed between the revocation of the withdrawal and the approval of respondent’s lieu selection, then it necessarily follows that, at the very instant when the secretary approved respondent’s lieu selection, the land still was under the spell of the withdrawal order, and that, therefore, when her selection was approved the land was not “unreserved” public land subject to disposal by the Land Department under the act of May 2, 1914. If, to avoid this dilemma, some interval of time, however short, may be deemed to have elapsed between the revocation of the withdrawal order and the approval of respondent’s lieu selection, notwithstanding both acts were effected by the one act of the assistant secretary in indorsing his approval on the commissioner’s written recommendations, then, during that interval, however short, appellant’s occupancy of the land ceased to be unlawful and he ceased to be a trespasser. At the very instant that the withdrawal order was revoked, the land became open to entry, and appellant, who had occupied the land all this time, waiting for the day when" he. lawfully could make entry under the public land laws, who had made valuable improvements, who, possessing the necessary qualifications, had vainly tried to enter the land under the Desert Land Act, who diligently prosecuted appeals from adverse decisions of the local land officers and the commissioner of the general land office to the Secretary

The status of the land at the time of the secretary’s approval of respondent’s selection is the crux of the case. That is to say, in order that title should pass to respondent under the patent issued to her August 9, 1916, it is essential that the land should have been both vacant and unreserved at the time of the secretary’s approval of her lieu selection. That particular point of time, and none other, is the crucial or determinative point of time. That this is so will readily appear when we remember that at the date when respond- • ent made her lieu selection, May 10, 1915, the land unquestionably was not “unreserved.” It still was in the category of reserved land by reason of the withdrawal order of April 2, 1909, which, as to the land selected by respondent, was still unrevoked and in full force and effect. Consequently, no right in respondent, inchoate or inceptive, could attach to the land, by virtue of her act of selecting it as lieu for her state school section. Unless, therefore, the land was both vacant and unreserved at the very instant of the secretary’s approval of her selection—and that, we think, was an impossibility—so that the secretary’s act of approval could create in her some sort of a right to the land, inchoate or inceptive, she never could acquire any right thereto. For, without doubt, when, on November 3, 1915, by revocation of the withdrawal order, the land ceased to be reserved and became “unreserved,” appellant’s occupancy, unless a right of some sort already had vested in respondent, immediately became a lawful occupancy, and, being lawful, the land ceased, instanter, to be “vacant,” and thereby it ceased to possess one of the attributes essential to the right of disposal under the act of May 2, 1914.

Our conclusion is that the land in controversy was not subject to disposition under the act of May 2, 1914. Re

It is so ordered.

Thomas, J., and Weller, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 24, 1920.

All the Justices concurred.