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Jones v. Florida C. & P. R. Co. (C. C.) 41 Fed. 70. This view is predicated upon the assumption that, while government lands are not reserved or held for specified national purposes, the United States occupies the position of a mere individual proprietor, with rights and remedies neither less nor greater. An examination of the cases cited, however, discloses that the peculiar facts with which they dealt, as well as the limitations stated in the opinions written, greatly modify the scope of the doctrine stated; and the later cases leave little doubt that the Supreme Court has not recognized, and will not recognize, the limited control of Congress over the territory and property belonging to the United States, for which defendant contends. The public lands of the United States are held by it, not as an ordinary individual proprietor, but in trust for all the people of all the states, to pay debts and provide for the common defense and general welfare, under the express terms of the Constitution itself. It matters not whether the title is acquired by cession from other states, or by treaty with a foreign country, whether the lands are located within states or in territories, they are held for these supreme public uses when and as they may arise. The Congress has the exclusive right to control and dispose of them, and no state can interfere with this right or embarrass its exercise. United States v. Gratiot, 14 Pet. 526, 10 L. ed. 573; Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; Irvine v. Marshall, 20 How. 558, 15 L. ed. 994; Gibson v. Chouteau, 13 Wall. 92-99, 20 L. ed. 534-536.

"The means employed by the government of the Union are not given by the people of a particular state, but by the people of all the states; and being given by all, for the benefit of all, should be subjected to that government only which belongs to all. All subjects over which the sovereign power of a state extends are objects of taxation; but those over which it does not extend are,

upon the soundest principles, exempt from taxation. The sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission; but does not extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States." Van Brocklin v. Tennessee (Van Brocklin v. Anderson) 117 U. S. 151-155, 29 L. ed. 845, 846, 6 Sup. Ct. Rep. 670, 672.

Moreover, the act enabling the people of Utah to form a Constitution and state government imposes the condition that the people inhabiting said proposed state forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof. In the Constitution of Utah, subsequently adopted, this provision was incorporated in terms. It is urged that insistence upon these terms, when the new state of Utah was admitted, implies that the exclusive control of Congress was conceived not to exist in the absence of such an express reservation; but the better view is that the expression in the Enabling Act, and in the Constitution of the new state, was but declaratory of a constitutional power known to exist, and was inserted to forestall all possible contention. Van Brocklin v. Tennessee (Van Brocklin v. Anderson) 117 U. S. 167, 29 L. ed. 845, 6 Sup. Ct. Rep. 670; Stearns v. Minnesota, 179 U. S. 223, 45 L. ed. 162, 21 Sup. Ct. Rep. 73. It is idle to insist that the provisions of the Utah Enabling Act and Constitution do not interfere with defendant's contentions. In the brief counsel say: "They did not provide that the land should remain 'at the sole and entire disposition of the United States,' but merely provided that it should remain 'subject to the disposition of the United States.""

This is a distinction without a substantial difference. The acquisition of a perpetual easement under the alleged power of eminent do

(144 C. C. A. 470, 230 Fed. 328.)

main is such an appropriation as amounts to an invasion of the constitutional power of Congress.

"The power to tax [as the power to take] involves the power to destroy; the power to destroy may defeat and render useless the power to create; and there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control. The states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government." Van Brocklin v. Tennessee (Van Brocklin v. Anderson) 117 U. S. 155, 156, 29 L. ed. 845, 846, 6 Sup. Ct. Rep. 670, 673.

The United States does not and cannot hold property as a monarch may for private or personal uses; it cannot hold as a private proprietor for other than public objects. Van Brocklin v. Tennessee (Van Brocklin v. Anderson) 117 U. S. 158-161, 29 L. ed. 847-849, 6 Sup. Ct. Rep. 670. "All the public lands of the nation are held in trust for the people of the whole country." United States v. Trinidad Coal & Coking Co. 137 U. S. 160, 34 L. ed. 640, 11 Sup. Ct. Rep. 57; Light v. United States, 220 U. S. 523-537, 55 L. ed. 570-574, 31 Sup. Ct. Rep. 485.

The United States can prohibit absolutely or fix the terms on which the property may be used. As it can withhold or reserve the land it can do so indefinitely. Light v. United States, 220 U. S. loc. cit. 536, 55 L. ed. 574, 31 Sup. Ct. Rep. 485; Stearns v. Minnesota, 179 U. S. 243, 45 L. ed. 173, 21 Sup. Ct. Rep. 73. In Coe v. Errol, 116 U. S. 517-524, 29 L. ed. 715-717, 6 Sup. Ct. Rep. 475, 477. Mr. Justice Bradley said: "We take it to be a point settled beyond all contradiction or question that a state has jurisdiction of all all persons and

things within its territory which do not belong to some other jurisdiction, such as the representatives of foreign governments, with their houses and effects, and property belonging to or in the use of the government of the United States."

And in Van Brocklin v. Tennessee (Van Brocklin v. Anderson) 117 U. S. loc. cit. 165, 29 L. ed. 850, 6 Sup. Ct. Rep. 670, Mr. Justice Gray quotes approvingly the following language of Mr. Douglas, in which Mr. Webster concurred: "The title of the United States can be devested by no other power, by no other means, in no other mode, than that which Congress shall sanction and prescribe. It cannot be done by the action of the people, or legislature of a territory or state."

To hold otherwise "would tend to create a conflict between the officers of the two governments, to deprive the United States of a title lawfully acquired under express acts of Congress, and to defeat the exercise of the constitutional power to lay and collect taxes, to pay the debts, and provide for the common defense and general welfare of the United States."

The rights of the states in the shores and beds of navigable waters below high-water mark bear no analogy to the claim of defendant here. In such cases the government asserts not title, but control over navigation. United States v. Chandler-Dunbar Water Power Co. 229 U. S. 53, 57 L. ed. 1063, 33 Sup. Ct. Rep. 667, 678. The distinction is clearly drawn by the Supreme Court in Van Brocklin v. Tennessee (Van Brocklin v. Anderson) 117 U. S. 167, 168, 29 L. ed. 850, 851, 6 Sup. Ct. Rep. 670: "Upon the admission of a state into the Union, the state doubtless acquires general jurisdiction, civil and criminal, for the preservation of public order, and the protection of persons and property, throughout its limits, except where it has ceded exclusive jurisdiction to the United States. The rights of local sovereignty, including the title in lands

held in trust for municipal uses, and in the shores of navigable waters below high-water mark, vest in the state, and not in the United States. New Orleans v. United States, 10 Pet. 662, 737, 9 L. ed. 573, 602; Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; Goodtitle v. Kibbe, 9 How. 471, 13 L. ed. 220; Doe ex dem. Hallett v. Beebe, 13 How. 25, 14 L. ed. 35; Barney v. Keokuk, 94 U. S. 324, 24 L. ed. 224. But public and unoccupied lands, to which the United States have acquired title, either by deeds of cession from other states, or by treaty with a foreign country, Congress, under the power conferred upon it by the Constitution 'to dispose of and make all needful rules and regulations respecting the territory or other property of the United States,' has the exclusive right to control and dispose of, as it has with regard to other property of the United States; and no state can interfere with this right, or embarrass its exercise. United States v. Gratiot, 14 Pet. 526, 10 L. ed. 573; Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; Irvine v. Marshall, 20 How. 558, 563, 15 L. ed. 994, 997; Gibson v. Chouteau, above cited."

It has been thought advisable and necessary to carry this discussion to somewhat unusual length because of the importance of the question involved, the earnest insistence of counsel upon the right asserted, and the absence of an express ruling by the Supreme Court thereon. United States v. Chicago, 7 How. 185, 12 L. ed. 660, the proposition was not decided because "open to some debate" and "not necessary to a disposition of the case." In Van Brocklin v. Tennessee, supra, it was announced: "When that question shall be brought into judgment here, it will require and will receive the careful consideration of the court."

In Siler v. Louisville & N. R. Co. 213 U. S. 175, 53 L. ed. 753, 29 Sup. Ct. Rep. 451, it was said that: "Where a case in this court can be decided without reference to questions arising under the Federal Con

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domain, either directly or indirectly, without the consent of the United States; and, to sustain its contention, the defendant must point to some express grant by the government, or at least to subsisting legislation from which the grant may be inferred or by which its claims have been recognized and preserved. United States v. Utah Power & Light Co. (C. C. A.) 126 C. C. A. 376, 209 Fed. loc. cit. 559. In this view, it is unnecessary to consider whether there has been any effective exercise of the power claimed.

4. We come now to the defense of equitable estoppel. This is predicated upon the view that with respect to its proprietary interests a sovereign is subject to the principles of equitable estoppel in the same manner and under the same circumstances as a private individual or corporation. By its amended answer defendant alleges that its works were constructed at very great expense, and with the presumed knowledge of the plaintiff, through its agents and representatives; that for nine years plaintiff neither objected to nor protested against the use of its land; that to enjoin the maintenance and operation of the works will cause serious loss to the defendant and great inconvenience to the public.

It should be observed, in passing, that while the decree below quieted title in complainant and embraced an injunction against the defendant,

(144 C. C. A. 470, 230 Fed. 328.)

nevertheless this situation was the direct result of defendant's insistence upon the rights for which it now contends. The bill of complaint did not seek to expel the defendant from the public domain, but prayed that it should be enjoined from maintaining its alleged unlawful possession and occupancy without the permission of plaintiff, and without first complying with the laws of the United States, and the rules and regulations promulgated by the Secretary of Agriculture relating to national forests, and, further, that defendant be required to make pecuniary payment to the plaintiff for use and occupation. The government has not refused a right of way over its lands for the beneficial uses in question. The issue of interrupted service and great inconvenience and hardship to defendant's customers, and to the public generally, is not legitimately in this case, although persistently urged. The government has shown no disposition to deal unjustly with the states, nor with their citizens, in this respect, and it is not to be expected nor presumed that it will do so. United States v. Utah Power & Light Co. supra; Stearns v. Minnesota, 179 U. S. 223-243, 45 L. ed. 162-173, 21 Sup. Ct. Rep. 73. The only question here presented is whether a public service corporation, assuming to act in the name of the state of Utah, shall receive a free and permanent right of way and capitalize that gratuity for private gain, or whether the United States shall control the disposition of its property and receive fair compensation as other landed proprietors for the use thereof. If the exigencies of this particular community are such that the interests of the people demand public grants and concessions for their necessary comfort and convenience, no doubt such will be made, as they always have been made, by government, state and national, but they must flow from congressional action, and not from individual appropriation. It is well settled that an unau4 A.L.R.-35.

thorized or wrongful entry upon public lands, and the making of improvements thereon, without taking the steps required by law to initiate a legal right thereto, are wholly inoperative as against the United States. Russian-American Co. v. United States; 199 U. S. 570, 50 L. ed. 314, 26 Sup. Ct. Rep. 157; Frisbie v. Whitney, 9 Wall. 187, 19 L. ed. 668; Lake Superior Ship Canal, R. & Iron Co. v. Finan, 155 U. S. 385, 39 L. ed. 194, 15 Sup. Ct. Rep. 115; United States v. Trinidad Coal & Coking Co. 137 U. S. 160, 34 L. ed. 640, 11 Sup. Ct. Rep. 57. Long acquiescence does not legalize an unwarranted appropriation. Camfield v. United States, 167 U. S. 527, 42 L. ed. 263, 17 Sup. Ct. Rep. 864. And failure to object does not confer any vested right as against the government. Light v. United States, 220 U.S. 523-535, 55 L. ed. 570, 573, 31 Sup. Ct. Rep. 485; Steele v. United States, 113 U. S. 130, 28 L. ed. 952, 5 Sup. Ct. Rep. 396; Wilcox v. Jackson, 13 Pet. 513, 10 L. ed.


It is equally well settled, and is, in fact, conceded, that laches is not imputable to the government, and, as stated in United States v. Kirkpatrick, 9 Wheat. 720-735, 6 L. ed. 199-203: "This maxim is founded, not in the notion of extraordinary prerogative, but upon a great public policy. The government can transact its business only through its agents; and its fiscal operations are so various, and its agencies so numerous and scattered, that the utmost vigilance would not save the public from the most serious losses, if the doctrine of laches can be applied to its transactions. It would, in effect, work a repeal of all its securities."

The defendant admits the soundness of this principle, but makes a distinction between laches, or mere delay, and equitable estoppel as resulting from the showing made by its answer, to which reference has been made. Reliance is placed in great measure upon New York v. Pine, 185 U. S. 93, 46 L. ed. 820,22

Sup. Ct. Rep. 592, in which it was held: "A failure to pursue statutory remedies is not always fatal to the rights of a party in possession, and if full and adequate compensation is made to the plaintiff, sometimes the possession of the defendant will not be disturbed."

In that case the municipality was undertaking a large work with a view of supplying its citizens with water. It had been engaged in this work for two years, and had nearly completed its dam. Before the case was brought the plaintiffs and the city had been trying to agree upon the amount of compensation, and the former were seeking compensation for the injuries they would sustain, and were not insisting upon their alleged right to an abandonment of the work. In such case it was held that the city might well assume that payment of a just compensation would be accepted in lieu of the right. The power of eminent domain was conceded. The plaintiffs were held to be estopped from insisting upon an abandonment of the work, inasmuch as adequate compensation might be ascertained and decreed.

Our attention is also directed to the decisions of this court in Iowa v. Carr (C. C. A.) 112 C. C. A. 477, 191 Fed. 257, and Hemmer v. United States (C. C. A.) 123 C. C. A. 194, 204 Fed. 898, wherein it was held that in a suit in equity the claims of the United States appeal to the conscience of the chancellor with the same, but with no greater or less, force than those of a private individual under like circumstances, and are determinable by the same rules and principles. In the former of these cases one Samuel Carr and others brought suit against one Charles R. Hannan, etc., to quiet the title to certain land on the Iowa shore of the Missouri river. The

state of Iowa intervened, and sought to establish its claim to a part of this accreted tract on the ground that it was appurtenant to an island on the Iowa part of the river bed, and, in fact, was the

Iowa part of the abandoned bed of the river. In opposition to this claim complainants set up long, continuous, adverse possession; that the land was an accretion to their own lands, to which they held title from the United States; and, further, that the state had long acquiesced in their title and possession, and had recognized it affirmatively by the levy and collection of taxes upon the disputed land as the property of the complainants. For more than twenty years the plaintiffs and their grantors were in undisturbed possession of the land under claim of title. They expended large sums of money on its improvement. The state, with full knowledge of the situation, listed the property as theirs and levied and collected taxes from them.

In Hemmer v. United States, supra, one Henry Taylor, an Indian, entered 160 acres of land in South Dakota, made his final proof, paid for the land, and obtained his final receiver's receipt under the Act of Congress of March 3, 1875 (18 Stat. at L. 420, chap. 131, § 15, Comp. Stat. § 4611, 3 Fed. Stat. Anno. 2d ed. p. 819), which provided that any Indian who was the head of a family, or who had arrived at the age of twenty-one years, and had abandoned, or should thereafter abandon, his tribal relations, should be entitled to the benefits of the Homestead Law; but that the title to the land he should acquire should be inalienable for five years from the date of his patent therefor. In 1884, after he had completed his five years of residence and occupation of his homestead, and thus stead, and thus had completely earned it, a law was passed providing that the government would hold such land in trust for twenty-five years instead of five. By mistake, the patent which was issued to him contained this provision of the later act. Afterwards the title passed from Taylor to Hemmer. The United States brought suit in equity against the immediate and remote grantees of Taylor, for the purpose

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