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

of setting aside all the conveyances under which they held, upon the ground that this homestead was inalienable for twenty-five years after the date of the patent issued under the Act of 1884 (Act July 4, 1884, chap. 180, 23 Stat. at L. 96, Comp. Stat. § 4612, 3 Fed. Stat. Anno. 2d ed. p. 820). In the course of the opinion the doctrine was restated that in such a suit the claims of the government appeal to the conscience of the chancellor with the same, but with no greater or less, force than those of a private individual under similar circumstances. However, the court held that the Act of 1884 did not repeal, amend, or modify any of the provisions of the earlier act, and did not extend from five years to twenty-five years the restriction on alienation; that Taylor had fully complied with the prior act, had all rights under it, and that Hemmer stood in his shoes. Under this holding, the disposition of the case did not depend upon the doctrine of equitable estoppel quoted.

Nevertheless, there can be no doubt that situations may be and are presented where both state and nation enter courts of equity as suitors, under conditions which place them upon an equal footing in this respect with the private citizen; that where the relations existing are such as to convey actual knowledge of and acquiescence in asserted claims, under conditions which would make the subsequent denial of such claims inequitable, the doctrine of equitable estoppel, as distinguished from mere laches, may be invoked even against the government. The cases just cited are examples of such, but their doctrine cannot be so far extended as to validate the unauthorized appropriation of the public lands upon the mere ground of occupation and improvements made, the knowledge of which is presumed to be brought home to the government through "fiscal operations so various, and agencies so numerous and


scattered, that the utmost vigilance
would not save the
public from the eral government
most serious losses permitting
if the doctrine of
laches can be applied to such tran-
sactions." The doctrine of equitable
estoppel has no application here.

It remains to consider the contention of the government upon its cross appeal, viz., that the courts should have decreed an accounting and damages as prayed. We are unable to perceive why that contention is not sound, and this notwithstanding the lands have not been injured and would not, perhaps, have been otherwise leased or used by the government during the same period. United States V. Bernard (C. C. A.) 121 C. C. A. 190, 202 Fed. 731; St. Louis v. Western U. Teleg. Co. 149 U. S. 465, 37 L. ed. 810, 13 Sup. Ct. Rep. 990. It would seem further that the

charge imposed by the regulations should fairly and reasonably measure the value of such use. Congress clearly has the power to prescribe the terms upon which it will per

mit the lands of the United States to be used or otherwise disposed of; and the authority to make such rules conferred upon executive officers is not a delegation of legislative power.

"A provision in an act of Congress as to the use made of moneys received from government property clearly indicates an authority to the executive officer authorized by statute to make regulations regarding the property to impose a charge for its use." United States v. Grimaud, 220 U. S. 506, 55 L. ed. 563, 31 Sup. Ct. Rep. 480; Cosmos Exploration Co. v. Gray Eagle Oil Co. 190 U. S. 301, 47 L. ed. 1064, 23 Sup. Ct. Rep. 692, 24 Sup. Ct. Rep. 860.

By the Act of 1896, the Secretary of the Interior is expressly authorized to permit the use of such rights of way under general regulations to be fixed by him. It follows that the decree of the trial court, quieting and confirming the title to the lands

in question, as against all claims, demands, and contentions of the defendant, and enjoining said defendant from further operating the said works without the permission of the plaintiff, and from further maintaining its unlawful and tortious possession and occupancy within the Cache national forest 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 re-
lating to national forests, must be
affirmed, but the cause will be re-
manded to the District Court for
an accounting for

the reasonable val- Public land-
ue of use and occu- accounting for
pation, and for occupation.
such other proceed-

use and

ings as may be necessary, in accordance with the views herein expressed.

Petition for rehearing denied.


State power of eminent domain over property of United States.

The reported case (UTAH POWER & LIGHT Co. v. UNITED STATES, ante, 535) together with a case reported under the same title in (1917) 243 U. S. 389, 61 L. ed. 791, 37 Sup. Ct. Rep. 387, states the rule that Federal forest reservations within a state cannot be taken by the state by eminent domain as sites for works employed in generating and distributing electric power. It is asserted in the reported case that the public lands of the United States are held by it, not as an ordinary individual or proprietor, but in trust for all the people of all the states, and that Congress has exclusive right to dispose of such land, and no state can interfere with such right or embarrass its exercise. In the case in the Federal Supreme Court, in answering the contention of the defendant that the question as to the right of the state to take Federal lands by power of eminent domain must be tested by the laws of the state in which the lands are situated, rather than by legislation of Congress, and that lands of the United States within the state, when not used or needed for a fort or other governmental purpose of the United States, are subject to the jurisdiction, powers, and laws of the state in the same way and to a similar extent as are lands of others, the court said: "To this [contention] we cannot assent. Not only does the Constitution (art. 4, § 3, cl. 2) commit to Congress the power 'to dispose of and make all needful rules and reg

ulations respecting' the lands of the
United States, but the settled course
of legislation, congressional and state,
and repeated decisions of this court,
have gone upon the theory that the
power of Congress is exclusive, and
that only through its exercise in some
form can rights in lands belonging to
the United States be acquired. True,
for many purposes a state has civil
and criminal jurisdiction over lands
within its limits belonging to the Unit-
ed States, but this jurisdiction does
not extend to any matter that is not
consistent with full power in the Unit-
ed States to protect its lands, to con-
trol their use, and to prescribe in
what manner others may acquire
rights in them. Thus, while the state
may punish public offenses, such as
murder or larceny, committed on such
lands, and may tax private property,
such as live stock, located thereon, it
may not tax the lands themselves, or
invest others with any right whatever
in them.
And so we are of
opinion that the inclusion within a
state of lands of the United States
does not take from Congress the pow-
er to control their occupancy and use,
to protect them from trespass and in-
jury, and to prescribe the conditions
upon which others may obtain rights
in them, even though this may involve
the exercise in some measure of what
commonly is known as the police pow-

In comparing these two cases, it is to be noted that, in both cases, the

rule is broadly stated that Congress has the power to dispose of and make all needful rules and regulations respecting the lands of the United States within the state, and that this power of Congress is exclusive, and only through its exercise in some form can rights in lands in the United States be acquired; and the actual holding in both cases is the same. There is an apparent limitation in the language used by the Federal Supreme Court to the effect that "it results that state laws, including those relating to the exercise of the power of eminent domain, have no bearing upon a controversy such as is here presented, save as they may have been adopted or made applicable by Congress."

In United States v. Certain Lands (1913) 208 Fed. 429, it appeared that for the purpose of establishing a national forest reserve, the state granted a tract of land to the Federal government, only reserving jurisdiction concurrent with the United States with respect to criminal and civil process. Under these circumstances, it was held that the state could not assert the right to exercise the power of eminent domain to establish highways, or to take gravel banks or other necessary material for the purpose of building or maintaining such public highways.

In Cleary v. Skiffich (1901) 28 Colo. 362, 89 Am. St. Rep. 207, 65 Pac. 59, 21 Mor. Min. Rep. 284, it is held that the state law authorizing the location of mill sites upon any land within the state cannot authorize the location of mill sites upon public mineral land, where the Federal law denies the right to locate mill sites upon this character of land, since in this matter the Federal law must control.

In Brigham City v. Rich (1908) 34 Utah, 130, 97 Pac. 220, it is apparently assumed that land of the Federal government is not subject to be taken by state agencies in eminent domain proceedings. The question was presented in this case as to whether or not the title to public land was in a private person, and hence subject to be taken in eminent domain proceedings, and it was held in the affirmative. The court stated the issue to be, "whether

the land at the time suit was begun was subject to condemnation or whether it was the property of the United States."

In Van Brocklin V. Tennessee (Van Brocklin v. Anderson) (1885) 117 U. S. 151, 29 L. ed. 845, 6 Sup. Ct. Rep. 670, which involved the power of a state to assess lands of the United States within its borders, the court, referring to United States v. Railroad Bridge Co. (1855) 6 McLean, 517, Fed. Cas. No. 16,114 (hereinafter referred to), said "the question in issue in that case was not of the state's right of taxation, but of its right of eminent domain for the construction of roads and bridges. The decision of the learned justice in favor of the validity of the exercise of that right by a state over lands of the United States, without the consent of the United States, manifested either by an express act of Congress, or by the assent of a department or officer vested by law with the power of disposing of lands of the United States, appears to have been based upon the theory that the United States can hold land as a private proprietor for other than public objects, and upon a presumption of the acquiescence of Congress in the state's exercise of the power as tending to increase the value of the lands; and it finds some support in dicta of Mr. Justice Woodbury, in a case in which, however, the exercise of the power by the state was adjudged to be unlawful.

But it can hardly be reconciled with the views expressed by Congress, in acts concerning particular railroads, too numerous to be cited, as well as in general legislation. Acts of Aug. 4, 1852, chap. 80, and March 3, 1855, chap. 200, 10 Stat. at L. 28, 683; July 26, 1866, chap. 262, § 8, 14 Stat. at L. 253, Rev. Stat. § 2477, Comp. Stat. § 4919, 8 Fed. Stat. Anno. 2d ed. p. 785. When that question shall be brought into judgment here, it will require and will receive the careful consideration of the court."

In United States v. Utah Power & Light Co. (1913) 126 C. C. A. 376, 209 Fed. 554 (an earlier appeal in the reported case, ante, 535), it is pointed out that the provision of the Federal

Constitution that Congress shall have power to dispose of and make all needful rules and regulations respecting the territory belonging to the United States is a supreme law of the land, and embodies an express grant of power to the national government. It means that the title and rights in and to public lands are created by the acts of Congress, and must be governed by their provisions whether they are hard or lenient, and that no rights whatever can be obtained to lands within the United States except as Congress may consent.

The foregoing views show a tendency greatly to restrict, if not absolutely to deny, the power of the state with regard to the right to take title or create easements upon land of the Federal government by the exercise of the power of eminent domain, except as such right may be expressly conferred by Congress. In this regard the late cases do not seem in harmony with the views of the earlier cases on the matter, although it may be said that the earlier views are based almost entirely upon obiter statements.

In one of the earlier cases, United States v. Chicago (1849) 7 How. (U. S.) 185, 12 L. ed. 660, it is said arguendo that it is not questioned that land within the state, purchased by the United States as a mere proprietor, and not reserved or appropriated for any special purpose, is liable to condemnation for streets or highways, like the lands of other proprietors, under the rights of eminent domain. To the same effect is the language of Justice Field in Ft. Leavenworth R. Co. v. Lowe (1885) 114 U. S. 525, 29 L. ed. 264, 5 Sup. Ct. Rep. 995, wherein it is said arguendo that "so far as the land constituting the reservation was not used for military purposes, the possession of the United States was only that of an individual proprietor. The state could have exercised with reference to it the same authority and jurisdiction which she could have exercised over similar property held by private parties." This case, however, involved an action by a railroad company to recover taxes paid under an

alleged illegal assessment upon property situated within a military reservation.

The matter received very able consideration in United States v. Railroad Bridge Co. (1855) 6 McLean, 517 Fed. Cas. No. 16,114. Upon this point it is said: "The proprietorship of land in a state by the general government cannot, it would seem, enlarge its sovereignty or restrict the sovereignty of the state. This sovereignty extends to the state, subject only to the proprietary right of the lands owned by the Federal government, and the right to dispose of such lands and protect them under such regulations as it may deem proper. The state organizes its territory into counties and townships, and regulates its process throughout its limits. And in the discharge of the ordinary functions of sovereignty, a state has a right to provide for intercourse between the citizens, commercial and otherwise, in every part of the state, by the establishment of easements, whether they may be common roads, turnpike, plank, or railroads. The kind of easement must depend upon the discretion of the legislature. And this power extends as well over the lands owned by the United States, as to those owned by individuals. This power, it is believed, has been exercised by all the states in which the public lands have been situated. It is a power which belongs to the state, and the exercise of which is essential to the prosperity and advancement of the country. State and county roads have been established and constructed over the public lands in a state under the laws of the state, without any doubt of its power, and with the acquiescence of the Federal government. In this respect the lands of the public have been treated and appropriated by the state as the lands of individuals. These easements have so manifestly conduced to the public interest, that no objection, from any quarter, has hitherto been made. And it is believed that this power belongs to the states.

"It is difficult to perceive on what principle the mere ownership of land

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by the general government within a state should prohibit the exercise of the sovereign power of the state in so important a matter as the easements named. In no point of view are these improvements prejudicial to the general interest; on the contrary, they greatly promote it. They encourage population, and increase the value of land. In no respect is the exercise of this power by the state inconsistent with a fair construction of the constitutional power of Congress over the public lands. It does not interfere with the disposition of the lands, and instead of lessening, enhances their value.

"Where lands are reserved or held by the general government for specified and national purposes, it may be admitted that a state cannot construct an easement which shall, in any degree, affect such purposes injuriously. No one can question the right of the Federal government to select the sites for its forts, arsenals, and other public buildings. The right claimed for the state has no reference to lands specially appropriated, but to those held as general proprietor by the government, whether surveyed or not. The right of eminent domain appertains to a state sovereignty, and it is exercised free from the restraints of the Federal Constitution. The property of individuals is subject to this right, and no reason is perceived why the aggregate property, in a state, of the individuals of the Union, should not also be subject to it. The principle is the same, and the beneficial result to the proprietors is the same, in proportion to their interests. These easements have their source in state power, and do not belong to Federal action. They are necessary for the public at large, and essential to the interests of the people of the state. The power of a state to construct a road necessarily implies the right, not only to appropriate the line of the road, but the materials necessary for its construction and use. Whether we look to principle or the structure of the Federal and state governments, or the uniform practice of the new states, there would seem to be no doubt that

a state has the power to construct a public road through the public lands." In Jones v. Florida C. & P. R. Co. (1889) 41 Fed. 70, the rule is stated that every state has, by virtue of its sovereignty and the right of eminent domain, power to create, by establishment of railroads, easements upon all lands within its limits, except such lands as may be expressly reserved for the purposes of the national government, and such easements as interfere with the purpose for which the land is reserved.

In Illinois C. R. Co. v. Chicago, B. & N. R. Co. (1880) 26 Fed. 477, it is said arguendo that. lands owned by the United States within the state, and not held for a public purpose, are subject to the state's right of eminent domain, the same as lands owned and held by individuals, and it is only land which the United States owns and holds within the state upon which it maintains public buildings, arsenals, forts, etc., that is exempt from such authority.

In People ex rel. Aspen M. & S. Co. v. District Ct. (1887) 11 Colo. 147, 17 Pac. 298, it is also stated arguendo, subject to certain proprietary rights in the public government, that "the sovereignty of the state extends to all the territory within its limits, and in the discharge of the ordinary functions of sovereignty the state may establish easements as well upon the lands owned by the United States, as upon lands owned by individuals."

In Burt v. Merchants' Ins. Co. (1871) 106 Mass. 356, 8 Am. Rep. 339, it is said that the United States, acting through Congress, has the right of eminent domain for all purposes incidental to the exercise of the power conferred by the Constitution, such as exist by necessary implication, and none other; and on the other hand the state as to other purposes has the same right even to the extent of taking public lands of the United States.

The general rule has also been stated in the following cases, that the United States has but a proprietary interest in lands held by it within the state for no special purpose, and since. the sovereignty is in the state, the

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