O'Reilly v. Noxon

Mr. Justice White delivered the opinion of the court: We will assume, but not decide — as the question is not presented — that the approving of a right-of-way for a reservoir site stands upon the same basis-, so far as the powers of the courts to review the same are concerned, as does the issuing of a patent by the government, and that our district courts have jurisdiction thereof; and upon that presumption, will proceed to determine the case. The officers of the Land Department are specially designated by law to receive, consider and pass upon proofs presented with respect to the matters here involved. If they err in the construction of the law applicable to the facts of the case, or if their decision is brought about by fraud, their findings may be reviewed and annulled by the courts, in a proper — 372 — case, but their findings and conclusions as to matters of fact are conclusive, and if they err in that respect, the remedy is by appeal from one officer to another of the department. In Johnson v. Towsley, 13 Wallace 72, it is declared that “courts.of equity, both in England and this country, have always had the power, in certain classes of cases, to inquire into, and correct injustice and wrong, in both judicial and executive action, founded in fraud, mistake or other special ground of equity, when private rights are invaded,” and it is there held' that, after title of land has passed from the government to individuals, and the question has become one of private right, the jurisdiction of courts of equity may be invoked to ascertain if the patentee does-not hold in trust for other parties, and if it is found that, by an erroneous application of the law, the patent should have been issued to another, the court will correct the mistake. In Moore v. Robbins, 96 U. S. 530, the declaration of that court is, that equity will interfere when it is clear that such officers have, by a mistake of law, given to one man the land which, on the undisputed facts, belongs to another. In Marquez v. Frisbie, 101 U. S. 473, in considering the language of the Moore-Robbins case, it is declared that “this means, and it is a sound principle, that where there is a mixed question of law and of fact, and the court cannot so separate it as to see clearly where the mistake of law is, the decision of the tribunal to' which the law has confided the matter is conclusive.” The courts will not review the decisions of the Land Department on questions of evidence, nor as to the method of the officers thereof in arriving at their conclusions. Unless the facts, and all the facts, together with the findings upon such facts, are disclosed, or enough undisputed facts are presented, — 373 — which were proven before the department to clearly establish that an error of law was committed, and that the party complaining was thereby deprived of his substantial rights, courts cannot hold that the law was misconstrued by the officers of the department. — Durango, etc., Co. v. Evans, 25 C. C. A. 523-529. The defendant contends that the complaint falls short in these essential requirements. He asserts that “not a single map or drawing of any kind was incorporated in the complaint. ’ ’ Certainly, if that is true, it renders the complaint vulnerable to the objection urged. It appears in the bill of exceptions that, at the hearing upon the demurrer, and before the judgment thereon, leave was granted to plaintiff to amend his amended complaint by adding to and incorporating therein: “Paragraphs to be numbered 141, 23} and 37}, thereby making the maps, certificate, affidavit and other data therein, parts of said complaint.” While the maps are not hodily within the complaint,' nor in the record as here presented under the certificate of the clerk of the district court, certain maps said to be the maps of O’Reilly, filed February 25, 1898; of Noxon, filed respectively February 3, 1898, and December 20, 1899 — were lodged with the clerk of this court at the time of filing the record herein, and plaintiff contends that thereby .they became, and are, a part of the record. We cannot concur in this view. The means of identification are wholly lacking. It is essential that all matters constituting the record be bodily therein, or, at least, brought therein by reference, and so identified by the clerk’s certificate thereon or in some other appropriate way. Without such means of identification, maps, instruments, matters and things that were never before the trial court might be interpolated into the record here. Furthermore, plaintiff has wholly failed to make any attempt to bring into — 374 — the record the maps, application and field notes of the Tarryall Reservoir and Ditch Company, except solely by alleging that the maps and data thereon, as filed by Noxon February 3, 1898, were duplicates of those filed by the Tarryall company. Such allegations are insufficient. They constitute only the opinion of the pleader with reference to such maps. Some affidavits are set forth in full in the complaint; others in substance only. The words “alleging,” “showing” and “tending to show” are used as a summary and a conclusion of the pleader of what the undisclosed evidence established. In one place it is alleged, “that, on November 2, 1898, the then Secretary rendered his decision upon Noxon’s appeal, wherein he declared, among other things,” followed by what purports to be a synopsis of the Secretary’s decision. What the “other things” were which the Secretary declared, is in no wise disclosed. Plaintiff contends that the Tarryall Reservoir and Ditch Company never had a legal existence, as, he alleges, no stock thereof was ever subscribed for, issued or allotted; that it was incapable of becoming vested with any title or franchise or of transferring the same, and even if it were a legal entity, it forfeited all its rights by its failure to construct its reservoir within the time limited by the act, and, therefore, Noxon acquired nothing as the transferee of .that company. If the legality of the corporation could be inquired into in this character of a case, the complaint before us in no wise presents the matter. The allegation in that respect is, that O’Reilly “filed affidavits alleging and showing that * * * no stock of said company had ever been subscribed for, allotted or issued; that such showing and allegations were not controverted.” The affidavits themselves, or when or by whom made, are not set forth. Further, it is recited that the Secretary, “after — 375 — reviewing the history of the case and the previous rulings and decisions, and after considering the validity of the corporate existence of the Tarryall Beservoid and Ditch Company, and of Mr. Noxon’s claims as its transferee, declared: ‘ This matter is not, however, of controlling importance as between 0’Beilly and Noxon, because, in either event, Noxon has the advantage’,” but it fails.to disclose of what the Secretary’s review consisted, or how he considered the validity of the corporate existence of the company, or what conclusion he reached thereon. For aught that appears, the Secretary may have found that the affidavits were wholly insufficient, that the corporation was a legal entity and had forfeited no- rights. We could very properly end this controversy without further comment, but believing, as we do, that the Secretary’s decision, upon the facts presented by this record, was sound in law, we are constrained to so hold. Mills’ Annotated Statutes, § 2265, provided, among other things, a method of preparing maps and declaratory statements concerning applications for reservoir sites. The contention of plaintiff is, that the assignment of the Tarryall Beservoir and Ditch Company of its rights to Noxon, was of no effect, and that Noxon’s filing of December 20,1899, was subsequent to O’Beilly’s, and, therefore, conferred no rights upon Noxon; and as the maps and statement filed by Noxon February 3, 1898, were' not in conformity with the requirements of the statute, while the map and statement filed by O’Reilly February 25, 1898, were in conformity therewith, no vested rights accrued to Noxon under either of his filings or the assignment; whereas, vested rights did accrue to O’Reilly under his filings, notwithstanding this court, in Lamar Canal Co. v. The Amity L. & I. Co., 26 Colo. 370, on July 17, 1899, held said statute unconstitutional and void. — 376 — Plaintiff’s contention is not well based. He assumes that which the record does not disclose, to wit: that he initiated rights under § 2265, supra, or at all. The filing upon the site by the Tarryall company, and the subsequent approval of such filing by the Secretary, whether valid or voidable, segregated the land from the public domain and appropriated it to private use, so that no legal .entry of it could be made by O’Reilly or by any other applicant, until there was a determination, either judicial, legislative or executive, annulling such approval and restoring the site to the public domain. In James v. The Germania Iron Co., 107 Fed. 597, 603, it is held: That the entry of public land under the laws of the United States, whether legal or illegal, segregates it from the public domain, appropriates it to private use, and withdraws it from subsequent entry or acquisition until the prior entry is officially cancelled and removed. Many cases are therein cited substantiating the rule. Analogous in principle is Gurney v. Brown, 32 Colo. 472, which was carried to, and affirmed by, the United States Supreme Court, in 201 U. S. 184. In accepting and approving the. application of the Tarryall company, the department necessarily held upon the record before it that the company had a legal existence; that it had complied with the laws and customs regarding the construction and location of reservoirs and the appropriation and priority of water rights therefor. This would necessarily stand until otherwise properly adjudicated. O’Reilly’s application, therefore, vested no rights in him in the absence of a previous judicial, legislative or executive forfeiture of the grant to the Tarryall company. If the rights acquired by the Tarryall company under the approval of its reservoir site were subject to forfeiture by its failure to .construct the reservoir — 377 — within the period of five years fixed by law, it or its transferee, nevertheless, had the right of possession thereunder until such forfeiture was declared in a proper proceeding. The approval of the company’s application was, in effect, the sovereign saying to all, such company has an apparent right to the premises described, which must be recognized and respected until the sovereign, in some proper procedure, inquires into its validity. It may be, when the inquiry is made, the apparent right becomes, in reality, no right at all, but until such inquiry and determination, the apparent right must be respected. Whatever rights the company possessed were transferred to Noxon, and, under such transfer, he went into possession of the reservoir site in January, 1898, and commenced work thereon, continuing the same through the pendency of this controversy before the department. Under such circumstances, if Noxon chose to waive his rights, or apparent rights, under the approval of the site to the company and before the sovereign had questioned such rights, and to ask that a site embracing the same and other unappropriated land be approved to him upon a new application presented in his own name, the authority of the Secretary of the Interior to grant it was certainly ample. Moreover, it could very properly, under the circumstances of this case, be considered an extension of time in which to complete the work. The transferee of the company was then in possession, prosecuting the work, and no other rights had attached. Though it is designated a new application, the name applied does not necessarily determine the character of the instrument. Furthermore, the transaction could be properly held, in effect, the relinquishment of the filing by the Tarryall company and its transferee, and the acceptance by the department — 378 — of a new filing by Noxon before the intervention of any adverse claim. Opinion filed December 5, 1910; rehearing denied February 6, 1911. We think the conclnsion of the department, that O’Reilly had failed to show any vested rights that would he impaired or defeated by the approval of Noxon’s application, was just and right, and as to whether Noxon had fully complied with all the requirements of the law and the rules and regulations of the department, we have no concern. Unless the rights of others were affected, the matter is exclusively between Noxon and the sovereign. The judgment is, therefore, affirmed. Affirmed. Decision en banc.