Phipps v. Stancliff , 110 Or. 299 ( 1924 )

BEAN, J.

The lot is a part of the lands granted to the Oregon & California Railroad Company by the Act of Congress of July 25, 1866, and the amendments thereto. These acts contain provisions requiring the sale of the lands to actual settlers in tracts of not more than 160 acres, or one-quarter section, to each purchaser at prices not to exceed $2.50 per acre, and reserving to Congress the right to alter, amend or repeal the acts, having due regard for the rights of the grantee companies.

On April 30, 1908, the Congress adopted a joint resolution, authorizing and directing the Attorney General of the United States to institute and prosecute any and all suits in equity, actions at law or other proceedings, to enforce any rights or remedies of- the United States arising or growing out of either or any of the granting acts and their amendments, namely: Act of July 25, 1866, 14 Stats, at L. 239, Chap. 242; Act of June 25, 1868, 15 Stats, at L. 80, Chap. 80; Act of April 10, 1869, 16 Stats, at L. 47, Chap. 27 ; Act of May 4,1870,16 Stats, at L. 94, Chap. 69.

Asserting that the Oregon & California Railroad Company had violated the terms of the grant, the United States brought suit to declare a forfeiture of the granted lands including the land involved in the present case. This suit reached its finality in the United States Supreme Court in the case of Oregon & California R. R. Co. et al. v. United States, 238 U. S. 393 (59 L. Ed. 1360, 35 Sup. Ct. Rep. 908, see, also, Rose’s U. S. Notes), and 243 U. S. 549 (61 L. Ed. 890, 37 Sup. Ct. Rep. 443). On June 21, 1915, the United States Supreme Court held in effect that the provisos of the land grant requiring the granted lands to be sold by the railroad companies only to actual settlers in quantities not exceeding 160 acres each, and at a price not exceeding $2.50 per acre, were not conditions subsequent, the violation of which resulted in forfeiture of the grants, but were covenants which are enforceable. The United States Supreme Court enjoined any disposition of the lands until Congress should have a reasonable opportunity to provide by legislation for their disposition in accordance with such policy, as it might deem fitting under the circumstances, and at the same time secure fco the defendants, the railroad companies, all the value the granting acts conferred upon the railroads.

Pursuant to these decisions the Congress passed the Act of June 9, 1916, known as the Chamberlain-Ferris Act, 39 Stats, at L. 218, Chap. 137, revesting in the United States title to all the granted lands which had not been sold prior to July 1, 1913, but preserving the rights of the railroad company which were declared to be $2.50 per acre, and declaring the terms upon which such revested lands might be entered under the public land laws by qualified persons.

Pursuant to the provisions of the Chamberlain-Ferris Act portions of the revested lands, including the tract involved herein, were classified as agricultural lands, and listed and advertised as open to entry by the public with a preferred right to honorably discharged soldiers, sailors and marines. Frank L. Stancliff, the defendant, exercising his preferred right as an honorably discharged soldier, made a homestead entry under the United States land laws for lot 9 in the Roseburg land office, and proceeded to occupy and improve the land. Plaintiff thereafter brought this action to eject the defendant, the complaint being in the usual form. The answer avers the granting and patenting of lot 9 to the railroad company, its revestment in the United States through the Chamberlain-Ferris Act, and the homestead entry of defendant and his occupancy of the land under such entry. Lot 9 is surrounded by lands which were in private ownership prior to the grant to the railroad company.

The reply admits the homestead entry of the land by defendant, and his possession; denies the other allegations of the answer and affirmatively alleges: That the land lies within the primary limits of the railroad grant, being in an odd-numbered section within the twenty-mile limits covered by the grant; that the railroad company definitely located, that part of its road opposite the land January 7, 1871; that the road was actually completed opposite the land and accepted by the United States on August 29, 1883, and the railroad company was thereupon entitled to patent; that patent was issued to the company May 28, 1902, but that the patent did not convey title; that the lot in question is part of the southeast quarter of section 33; that in the year 1878, Robert Phipps, grantor and predecessor in interest of the plaintiff, was in the actual, exclusive, notorious, peaceable and adverse possession of the lot, claiming title thereto under a chain of conveyances from his predecessors, extending from the year 1863, down to and including a conveyance from one Harkness, dated October 23, 1878, under which Phipps went into possession; that Robert Phipps continued in like possession of the lot, having the same under fence and farming it, from that time to on or about March 9, 1912, when he placed plaintiff in possession under a deed dated March 9, 1912, and from that time till about September 19, 1920, when defendant wrongfully took possession, plaintiff continued in possession, having the land under fence and farming the same, and claiming to own it against all the world. The reply further alleges that the plaintiff and his grantors and predecessors in interest have, since the year 1863, until defendant wrongfully took possession, been in the actual, adverse, hostile, exclusive, open, notorious and continuous possession of lot 9, holding and owning and claiming to own the same adversely to all the world; that title to the lot was not vested in the Oregon & California Railroad Company at the time of the passage of the Chamberlain-Ferris Act, of at any time after the year 1881.

The defendant demurred to the reply. The court sustained the demurrer, and, plaintiff refusing to plead further, judgment was entered for defendant.

The lot in question was described in the suit above mentioned in the federal court, and it is apparent that the record title to the lot is in the government of the United States, and that the Department of the Interior of the United States, through the United States land office, granted defendant’s homestead entry. The United States, therefore, has a claim to the land in question. There has been no adjudication of the claim of plaintiff to the land as between the United States and the plaintiff.

1. In the act of Congress admitting Oregon into the Union it is provided:

“That the foregoing propositions, hereinbefore offered, are on the condition that the people of Oregon shall provide by an ordinance, irrevocable without the consent of the United States, that said state shall never interfere with the primary disposal of the soil within the same by the United States, or with any regulations Congress may find necessary for securing the title in said soil to bona fide purchasers thereof * * .” 1 Or. L., p. 27.

The legislative assembly of the State of Oregon, by an act approved June 3, 1859, accepted the proposition of the United States, and solemnly ordained that the state ‘ ‘ shall never interfere with the primary disposal of the soil within the same by the United States, ’ ’ and that it would conform to the requirement of the Congress of the United States above quoted: 1 Or. L., p. 30.

In the opinion in Pin v. Morris, 1 Or. 230, a case involving a portion of a donation of land claim, Mr. Chief Justice Williams said:

“Congress has organized a land department of the government, whose business it is made to determine those questions which arise out of the disposal of the public lands, and the courts of the country cannot interfere to regulate or control that business, without introducing uncertainty and confusion into the whole system. ’ ’

In Moore v. Fields, 1 Or. 317, the syllabus reads:

“The courts of this State will entertain no proceedings, arising out of facts still pending in, and undetermined by, the land department of the United States.”

This policy has been strictly adhered to ever since: Frink v. Thomas, 20 Or. 265 (25 Pac. 717, 12 L. R. A. 239); Robertson v. State Land Board, 42 Or. 183 (70 Pac. 614); Weatherford v. McKay, 59 Or. 558 (117 Pac. 969); State ex rel. v. Hyde, 88 Or. 1, 40 (169 Pac. 757, 171 Pac. 582, Ann. Cas. 1918E, 688). See, also, Catholic Bishop v. Gibbon, 158 U. S. 155 (39 L. Ed. 931, 15 Sup. Ct. Rep. 779, see, also, Rose’s U. S. Notes).

2. As to all matters of fact within the scope of the authority of the officers of the United States land district, their findings are conclusive: Sanford v. Sanford, 19 Or. 1; affirmed in 139 U. S. 642 (35 L. Ed. 290, 11 Sup. Ct. Rep. 666, see, also, Rose’s U. S. Notes); Johnson v. Townsley, 13 Wall. 72 (20 L. Ed. 485); Moore v. Robbins, 96 U. S. 530 (24 L. Ed. 848); Smelting Co. v. Kemp, 104 U. S. 636 (26 L. Ed. 875).

The government of the United States hy its Department of the Interior and Land Department, with the sanction of the federal Supreme Court, says in effect, that title to the lot in question which was granted to the Oregon & California Railroad Company in aid of its railroad, hy virtue of the Act of July 25, 1866, and the amendments thereto, pursuant to the plan suggested by the Supreme Court of the United States and carried out by the Chamberlain-Ferris Act, revested in the United States and was subject to entry under the homestead laws by the defendant.

The plaintiff says in substance, that the title to the land was not so revested in the United States and was not subject to defendant’s homestead entry. It does not appear that this question has ever been presented to the United States Land Department.

It would not he in conformity with the enabling act of Congress admitting Oregon into the Union or the ordinance of the legislative assembly of the state accepting the propositions of Congress in that regard, nor in accordance with the long established policy of the courts, to interfere in the disposal of the lot of land in question. We are unable to see how the court could do so without the presence of the United States government as an interested party herein.

Reversed. Rehearing Denied. Costs Taxed. For appellant there was a brief and oral argument by Mr. B. L. Eddy.

3. Section 41, Or. L., provides that the court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the’court shall cause them to be brought in. As the government of the United States cannot be brought in as a party to this suit the only alternative is to dismiss the action: Beasley v. Shively, 20 Or. 508 (26 Pac. 846).

If plaintiff’s contention could be acceded to, it would result in utter confusion. If the defendant should be dispossessed by the court, the Land Department might adhere to its present program, resulting in a perplexing question as to the issuance of a patent for the land. The judgment of the Circuit Court sustaining the demurrer to the reply is affirmed.

For the reason suggested the action is dismissed without prejudice to plaintiff’s rights. Affirmed.

McBride, C. J., and Brown and McCourt, JJ., concur.