Azcuenaga Bros. Livestock & Land Co. v. Corta

AILSHIE, Presiding J. This action was instituted by the-plaintiff to enjoin the defendant from trespassing on section; 16, township 8 south, of range 5 west, Boise Meridian, and. for damages for his repeated acts of trespass. The complaint alleged that plaintiff was the lessee of the state of this section of land. A temporary injunction was issued, and the case was thereafter submitted to the court on the pleadings- and stipulation as to the facts concerning the title and right of possession to the land. Judgment was entered in favor-of the plaintiff, and- the defendant appealed. It seems that the government caused a survey to be- made-covering this section of land, and that after the survey and-prior to the formal approval of the survey by the general. [541] land office, the state leased section 16 to the respondent company, and thereafter and while respondent was in possession of the land grazing the same with its livestock, the appellant entered npon the land with his band of sheep and occupied and grazed the same. The only authority under which the appellant claims the right of entering upon said land and occupying it is the general sufferance, permission or license of the United States to graze livestock on the public domain. It is admitted by appellant that he knew the lands had been surveyed and that according to such survey this was section 16 of the township. He also admits that he was aware of the occupancy of the respondent at the time he entered upon the land with his livestock. Appellant has gone into the question at great length of the state’s title to sections 16 and 36, granted to the state by the general government for common school purposes. He has argued and cited many authorities which he insists support his position that the state acquires no interest or right or title to school sections until after the survey has been made by the government and formally accepted and approved by the general land office. As we view the matter, however, it is not so much a question in this case as to when the absolute title or fee vests in the state, as it is a matter of proof of the state’s interest or equity in and to the identical tract of land. The government seems to have reserved to itself the implied power to control the public surveys and consequently has reserved in itself the means of identification of sections 16 and 36 which were granted to the state by the Admission Bill for school purposes. When the respondent in this case undertook to prove its case and show as lessee of the state that the state had a right to lease this land, it was necessary to identify the land by means of a government survey. No private survey could establish that fact or identify the tract of land. The supreme court of the United States in United States v. Montana Lumber & Mfg. Co., 196 U. S. 573, 25 Sup. Ct. 367, 49 L. ed. 604, held that proof of a private survey was not [542] admissible to show that timber cut was taken from an odd section which fell within the limits of the Northern Pacific Railroad grant. In that case, three questions were certified by the circuit court of appeals for the ninth circuit up' to the supreme court of the United States, and that court answered the first and third questions in the affirmative. Those were purely and solely questions as to the admissibility of evidence. That case was subsequently followed by the circuit court of appeals in United States v. Birdseye, 137 Fed. 516, 70 C. C. A. 100, and also in Clemmons v. Gillette, 33 Mont. 321, 114 Am. St. 814, 83 Pac. 879. So far as we are aware, it has never been directly held by the supreme court of the United States, or any other court, that the state has absolutely no right or interest in school sections until after the official survey is made; but it has rather been held that there is no means of proof as to the particular tract or body of land which constitutes sections 16 and 36, and that therefore there is no legal means of identification of the land until after the official survey is made. That is what we understand to be held by the foregoing authorities, and, indeed, we so announced our understanding of the rule in Balderston v. Brady, 18 Ida. 238, 108 Pac. 742. On the other hand, the supreme court of the United States and the inferior federal courts have almost uniformly recognized an inchoate right or an equitable title as existing in the state to these sections at all times prior to the survey, and that this right is subject to be defeated on the one hand, or vested absolutely and in fee simple on the other hand, according to the condition and occupation of the property at the time the survey is made. A homesteader, however, could not acquire any interest in the property after the survey is actually made on the ground, although the survey might not be actually accepted and approved for years thereafter. The appellant in this case fails to connect himself with the government in any way, whereby he could acquire any title or right or interest in and to the property from the [543] government. According to his own showing, he is at the best a mere trespasser on the land or possibly a temporary occupant by sufferance of the government, if the government still retains the right to direct the control and occupation of such land. The respondent, on the other hand, shows that it is a lessee from the state. He also shows that the land has been surveyed, and this fact is not established by proofs of a private survey but by proofs of a government survey. While it appears that this survey has not yet been formally accepted and approved by the department, that fact could not improve appellant’s condition or relation to the land, nor could it in any way tend to. connect the appellant with the government or its title to the land. While a rejection of the survey and a resurvey by the government showing that this body of land is not in fact section 16 would ultimately defeat the state and incidentally the respondent as its lessee, that would present a condition and state of facts that does not arise in the present case and with which we are not confronted. As between these parties, where the government is asserting no right to the land, we think the state’s lessee is clearly entitled to protect its possession and occupancy of the land as against appellant. This is a much stronger case in its facts than was the case of Northern Pacific Ry. Co. v. Hussey, 61 Fed. 231, 9 C. C. A. 463, for the reason that here the land has been surveyed and the grantee’s lessee was in possession. In that case the Northern Pacific By. Co. was allowed to maintain an action to enjoin trespassers from cutting timber off of land within the limits of the Northern Pacific land grant, even though the land was still unsurveyed. This was done upon the theory that the railroad company had such an interest in the land that it might maintain its action to preserve the property from waste. Justice McKenna presided over the circuit court of appeals as one of the circuit judges at the time the Hussey case was decided. He also wrote the opinion of the supreme court in the case of United States v. Montana Lbr. & Mfg. Co., supra, and refers specifically to the Hussey case, and says there is nothing in the Hussey [544] case which is in conflict with the rule announced by the supreme court in the Montana Lumber & Mfg. Co. case. This furnishes a strong indication as to the view of the supreme court on the question considered in the Hnssey case and involved in the case now before ns. No question is raised in this ease as to the sufficiency of the facts pleaded to entitle the plaintiff to an injunction except as to the specific question of title above considered. We therefore express no opinion as to the sufficiency of the complaint in other respects to entitle the plaintiff to an injunction in this ease. For the foregoing reasons, the judgment should he affirmed, and it is' so ordered. Costs awarded in favor of respondent. Sullivan, J., concurs. Petition for rehearing denied.