The general administration of the Forest Reserve Act, and also
the determination of the various questions which may arise
thereunder before the issuing of any patent for lands selected
under the provisions of the act, are vested in the Land
Department.
The courts cannot be called upon, in advance of and without
reference to the action of the Land Department, to determine the
right and title of a person who has surrendered lands under the Act
of June 4, 1897, and selected others, in the lands so selected, or
to render a final decree determining the interest of the parties to
the action in such lands, while the questions in relation to the
title are still properly before the Land Department and have not
yet been decided.
The Land Department has the statutory right to make rules and
regulations, and the courts will take judicial knowledge of such
rules and regulations as shall be made by it regarding the sale or
exchange of public lands.
Whether it is necessary under the Forest Reserve Act for the
selector at the time of making his selection, to file in addition
to his nonmineral affidavit, an affidavit that the land is not
occupied in fact is a question of law for the Land Department to
determine, although such decision might not be binding on the court
if such question properly arose in future litigation.
Page 190 U. S. 302
It is also for the Land Department to determine whether, if
the
land were not known to be mineral at the time of the selection,
the fact that mineral in paying quantities was found thereafter
would vitiate the selection.
This is an appeal from the decree of the Circuit Court of
Appeals for the Ninth Circuit, for the Southern District of
California, sustaining the defendants' demurrer to the bill of
complainant, and dismissing the same. The questions arise under the
Act of June 4, 1897, making appropriations for the sundry civil
expenses of the government, etc. 30 Stat. 11, 36. The particular
portion of the statute under which this litigation comes is set
forth in the margin.
*
The material facts averred in the bill are as follows: the
assignor of the complainant, one C. W. Clarke, was, on November 16,
1899, the owner in fee simple absolute of certain land in a forest
reservation, nonmineral, and covered by a patent from the United
States. On December 8, 1899, there were lands in the particular
township described in the bill which, for more than a year
continuously theretofore, had been surveyed, unappropriated, and
vacant public land of the United States, open to settlement,
returned and characterized upon the official records of the United
States as agricultural land, free and open to settlement and entry
under the laws thereof. This land did not then contain any known
minerals, salines, petroleum, or mineral oils, nor had any minerals
or petroleum or other mineral oils or mineral substances of any
kind ever been discovered within the limits of such land, which was
situated in the County of Kern, within the Southern District of
California, and within
Page 190 U. S. 303
the district of lands subject to sale and disposition by the
United States land office at Visalia, California. On November 16,
1899, Clarke relinquished the land in the forest reservation to the
United States by deed recorded in the office of the county in which
the land was situated, and on December 8, 1899, he duly delivered
to the register and receiver of the United States land office at
Visalia, California, and filed in that land office his deed to the
United States indorsed as recorded in the office where the land was
situated, together with his selection of the land in lieu of the
land relinquished, and at the same time he filed with the register
and receiver a nonmineral affidavit showing the selected tract
contained no known minerals, and he also delivered to and filed
with the register and receiver an abstract of his title to the
relinquished tract, duly certified as such by the recorder of the
county in which the tract was situated, which abstract showed him
to be the owner of the land by title in fee simple absolute, free
of any lien or encumbrance at the time of such relinquishment and
at the time the deed to the United States was made, and showed that
his conveyance to the United States vested in the government the
full, complete, and perfect title thereto. On the same day
(December 8, 1899), the register and receiver of the United States
land office at Visalia, California, duly accepted, received, and
filed the deed, abstract of title, nonmineral affidavit and the
selection of the land made by Clarke, and duly entered the
selection upon the official records of the land office, and the
register of the land office then certified that the land so
selected by Clarke was free from conflict, and that there was no
adverse filing, entry, or claim thereto, and Clarke thereupon and
thereby became vested, as complainant averred, with the complete
equitable title to the land so selected, and was thereupon and
thereby entitled to receive a patent for the land from the United
States in pursuance of that selection, under the terms and in
pursuance of the provisions of the act of Congress above referred
to. Clarke thereafter assigned and transferred to the complainant
an undivided three-quarters interest in the land taken in lieu of
the relinquished land, and by virtue of the above selection the
full, complete, and equitable title to the so
Page 190 U. S. 304
selected land became immediately vested in the complainant's
assignor without further act upon his part, and complainant, by
virtue of those acts and the assignment to it, is now the complete
and equitable owner of a three-quarters interest in the land, and
entitled to a patent therefor.
Clarke did not file any affidavit of nonoccupancy of the land
selected, so far as the record shows.
It is then averred that this claim of the complainant is denied
by the defendants, who assert that the land remained subject to
entry, exploration, selection, and purchase as mineral land, until
a patent shall be issued to the complainant's assignor, and the
complainant avers that the defendants, since the selection, have
entered upon the land, bored for and obtained petroleum oil, and
are engaged in taking it therefrom.
It is also averred that the right and title of the defendants
are based upon some one or more of four certain pretended placer
mining locations which the bill describes, and which cover the land
claimed by complainant, and that the defendants assert title to and
the right to the possession of the land described in those placer
locations from some or all of the locators thereof; but complainant
alleges that these placer locations are illegal and void, because
they were not based upon any discovery of mineral within the
boundaries thereof, or of petroleum oil within such boundaries,
until after the land had been selected by complainant's assignor
Clarke.
That, after the land had been selected by complainant's
assignor, the defendants filed in the United States land office at
Visalia, California, a written verified protest against such
selection, in which protest it was alleged that the land selected
by Clarke was not subject to selection by him under the Act of June
4, 1897, above referred to, because the same was mineral land and
was included within the boundaries of a valid placer mining
location. The protest ask that the Commissioner of the General Land
Office should order a hearing to determine the mineral character of
the land, and that the selection by Clarke be rejected and
disapproved, and the bill specifically avers that such protest is
now pending before the Commissioner of the General Land Office.
Page 190 U. S. 305
That the protest does not show there was any known mine, or that
there were any known salines, or any known or existing petroleum
wells, or known petroleum deposits, on any of the land selected by
Clarke at the time the land was selected, and it is averred that
the protest, failing to show such facts, is insufficient to warrant
or justify a hearing being ordered by the Land Department to
reestablish or redetermine the character of the land, or to change
the present classification thereof as fixed by the former report of
the Surveyor General and the confirmation thereof by the Land
Department, and that such protest is insufficient to impair or
affect the validity of Clarke's selection of the land; that notice
of such selection by Clarke had been given and published on the ___
day of January, 1900, and that, by law, only sixty days are allowed
to any person or persons to file protests in the local land offices
of the United States against any selections under the law of June
4, 1897, and that the only protest or adverse claim filed against
the selection was the protest of defendants above referred to, and
that such protest does not state any facts which impair or affect
the right of said Clarke or of the complainant in said selected
land, nor does it show any grounds why a United States patent
therefor should not issue to Clarke, and that defendants are bound
and estopped by their protest and the contents thereof and the
facts therein stated, and that, if such facts be admitted they do
not show that defendants, or any of them, have any interest in the
lands as against Clarke or complainant, and it is averred that,
upon the facts as pleaded by the protest, the Land Department of
the United States cannot lawfully refuse or deny the issuance of a
patent to Clarke, and that, upon such facts he is entitled to the
approval of his selection by the Land Department of the United
States and to the issuance of a patent therefor.
Notwithstanding complainant was the complete and equitable owner
of the land and entitled to the quiet and uninterrupted possession
of the same so far as regarded the three-quarters interest therein,
yet the defendants herein, except Clarke, did, on or about February
1, 1890, and frequently since then, by themselves and their
employees, without right, title, or claim, wrongfully and
unlawfully, and in disregard of the right of Clarke,
Page 190 U. S. 306
enter upon the land, erect derricks and other machinery thereon,
and proceed to excavate the soil thereof and bore wells and drive
iron pipes therein, seeking for petroleum oil and other mineral
products in the land for the purpose of taking the same, if found,
to their own use, and removing the same; that thereafter, and on or
about the last day of February, 1900, the defendants discovered in
the wells petroleum oil in profitable quantities, and that the
defendants are now wrongfully and unlawfully in possession of the
premises, and unlawfully and continuously from day to day pumping
large quantities of petroleum oil from the wells, and are about to
and will, unless restrained by the court, remove the same from the
land and sell and dispose of and market the same, and appropriate
the proceeds thereof to their own use, to complainant's great loss
and damage, and will continue so to do to the great waste and
irreparable injury and damage of said property and the complainant,
unless restrained therefrom by the court.
It was also alleged that the defendant Clarke is the owner of an
undivided one-quarter interest in the selected land described, and
that complainant requested him to join with it in instituting and
prosecuting this suit, but he refused to join herein, and therefore
complainant made him a defendant in order that all the parties
interested in the premises might be before this Court and their
rights finally adjudicated by a decree to be entered herein.
Upon these allegations, complainant prayed for a writ of
injunction restraining defendants from interfering with
complainant's entry upon the land and enjoining defendants, other
than Clarke, from excavating or digging upon the land for the
purpose of taking petroleum oil from the wells thereon or from
marketing or disposing of the oil, until the further order and
decree of the court in the premises, and that, upon final hearing,
the injunction should be made perpetual by an order and decree of
the court.
It was also prayed that complainant might have the judgment of
the court that the full and complete equitable title to an
undivided three-quarters interest in the property is vested in the
complainant, and an undivided one-quarter interest in Clarke, and
that the adverse claims of defendants thereto should be decreed to
be wholly without right and unfounded, and that
Page 190 U. S. 307
complainant have judgment for the possession of the land, and
that a receiver should be appointed to take possession of the land
and to preserve the same and the product thereof on the premises
until the further order of the court, but not to operate the wells
thereon except to the extent necessary, if at all, to preserve the
same from deterioration in value, nor to market or remove any oil
therefrom.
Upon the filing of this bill, the court granted an order to show
cause why the complainant should not have a preliminary injunction
as asked for in the bill. The defendants appeared and interposed a
demurrer to the bill, and, upon the hearing of the order to show
cause, they presented a large number of affidavits which in
substance averred that the complainant was guilty of fraud and bad
faith in locating the claim, and that such location was a fraud
upon the statute under which it was assumed to be made. Affidavits
in reply were filed by the complainant.
The demurrer was argued at the same time as the argument was had
upon the return of the order to show cause, and thereafter, on
September 24, 1900, an order was made by the circuit court denying
the application for a receiver and for an injunction, and a decree
was also made sustaining the defendants' demurrer and dismissing
the bill with costs, and on September 26, 1900, such decree was
entered dismissing the bill. 104 F. 20.
An appeal was taken from the decree sustaining the demurrer and
dismissing the bill, but none from the order denying the
application for a receiver and for an injunction. As the appeal to
the circuit court of appeals was only from the decree overruling
the demurrer and dismissing the complainant's bill, that court
confined its discussion to the facts alleged in the bill.
Page 190 U. S. 308
MR. JUSTICE PECKHAM, after making the foregoing statement of
facts, delivered the opinion of the Court.
An examination of the complainant's bill shows that it does not
ask for an injunction until the decision of the Land Department
upon the matters pending therein. The complainant ignores those
proceedings so far as to claim now the final adjudication by the
court, based upon its alleged equitable title to a three-quarters
interest in the land selected, and it avers that the Land
Department cannot lawfully refuse or deny the issuance of a patent
to Clarke. It avers that the protest filed by defendants is
insufficient to impair or affect the validity of the selection of
land made by complainant's assignor. The court is therefore called
upon in advance of and without reference to the action of the Land
Department, to determine complainant's right and title to the
three-quarters interest in the selected land, and a final decree is
asked determining the interest of the parties in this land, while
the question in relation to the title is still properly before the
Land Department, and not yet decided. This we cannot do.
Marquez v. Frisbie, 101 U. S. 473;
United States v. Schurz, 102 U. S. 378,
102 U. S. 395.
If the Land Department has any jurisdiction over the subject
matter, the question as to the sufficiency of the protest is one
for the decision of that department, and its right to decide
thereon is not taken from it by the averment of a legal conclusion
contained in the complainant's bill that the department has no
legal right to decide otherwise than in favor of the complainant
upon the facts before it. But, assuming that the question of
issuing a patent is still and properly before the Land Department,
the complainant avers that it has an equitable title to the land
which will be protected by the court. Whether complainant has a
full, complete, and equitable title to the land is a question
depending upon considerations hereinafter stated.
There can be, as we think, no doubt that the general
administration of the forest reserve act, and also the
determination
Page 190 U. S. 309
of the various questions which may arise thereunder before the
issuing of any patent for the selected lands, are vested in the
Land Department. The statute of 1897 does not in terms refer any
question that might arise under it to that department, but the
subject matter of that act relates to the relinquishment of land in
the various forest reservations, to the United States, and to the
selection of lands in lieu thereof, from the public lands of the
United States, and the administration of the act is to be governed
by the general system adopted by the United States for the
administration of the laws regarding its public lands. Unless taken
away by some affirmative provision of law, the Land Department has
jurisdiction over the subject.
Catholic Bishop v. Gibbon,
158 U. S. 155,
158 U. S.
166-167. There is no such law, and we must hold that the
Land Department has full jurisdiction over matters involving the
right of parties to a patent for lands selected under that act in
lieu of lands relinquished in a forest reservation. By virtue of
that jurisdiction, the General Land Department has power to review
and set aside (though not arbitrarily) the decisions of local
officers relating to those questions where such officers have power
to make those decisions in the first instance.
Orchard v.
Alexander, 157 U. S. 372;
Bank v. Bladow, 176 U. S. 448,
176 U. S. 451;
Hawley v. Diller, 178 U. S. 476,
178 U. S.
490.
The Land Department also has power to adopt, and did adopt,
rules and regulations for the administration of the forest reserve
act. The power existed by virtue of the provisions of the Revised
Statutes, §§ 441, 453, and 2478. Courts will take
judicial notice of rules and regulations made by the Land
Department regarding the sale or exchange of public land.
Caha
v. United States, 152 U. S. 211,
152 U. S. 221.
The rules and regulations promulgated by that department for the
purpose of carrying out the provisions of the Act of June 4, 1897,
are found in 24 L.D. 589, 592, and we think the rules set forth
below are reasonable and entitled to respect and obedience as valid
rules and regulations.
Among the rules, it is provided:
"16. Where final certificate or patent has issued, it will be
necessary for the entryman or owner thereunder to execute a
Page 190 U. S. 310
quitclaim deed to the United States, have the same recorded on
the county records, and furnish an abstract of title, duly
authenticated, showing chain of title from the government back
again to the United States. The abstract of title should accompany
the application for change of entry, which must be filed as
required by paragraph 15, without the affidavit therein called
for."
"18. All applications for change of entry or settlement must be
forwarded by the local officers to the Commissioner of the General
Land Office for consideration, together with report as to the
status of the tract applied for."
The "consideration" mentioned in rule 18 is clearly not of the
character of a review of a decision already made by the local land
officers, but is in the nature of an original consideration of the
subject by the General Land Office, to which office the final
decision belongs. The applications are to be forwarded, not a
decision by the local land office, together with a report (not a
decision) as to the status of the land. This rule makes it the duty
of the local land officers merely to forward the various
applications to the General Land Office, and an original decision
is to be made by the latter office upon the papers transmitted to
it.
It will be noticed that the bill in this case alleges the
proceeding before the local land officers, and also that defendants
filed a protest, and that the questions raised thereby are still
before the Land Department and not yet decided. The complete
equitable title of the complainant is not, therefore, made out, and
cannot exist until a favorable decision by that department has been
made regarding the sufficiency of complainant's proof of his right
to the selected land. That question the department is competent,
and it is its duty, to decide. It may be that, when the decision of
the Land Department is made, if it be favorable to the applicant,
the complete equitable title claimed will accrue from the time the
selection of the lands was made in the local land office, and when
the patent subsequently issues, the legal title will vest from the
time of selection. But before any decision is made, how can there
be an equitable title?
We do not think that, by the act of 1883, 22 Stat. 484, the
Page 190 U. S. 311
local land officers were given any power to decide upon the
sufficiency of the application in such a case as this. That act
simply imposed upon them the duty of furnishing plats of townships
showing what lands were vacant and what lands taken. It obviously
referred to the lands that appeared vacant or appeared to have been
taken on the records of their office. It did not assume to provide
that no other lands could be taken than such as appeared so to be
on those records.
The ground upon which complainant insists that it is the
equitable owner of the land selected is that it has relinquished a
title in fee in a forest reservation, and has selected in lieu
thereof vacant land open to settlement, and that the local land
officers duly accepted, received, and filed the deed of the land
relinquished, and the affidavit that the land selected was
nonmineral, and that the officers duly entered such selection upon
the official records of the land office, and then and there
certified that the land selected was free from conflict, and that
there was no adverse filing, entry, or claim thereto. Complainant
asserts that was all that it could reasonably do; that nothing
remained on its part to do, and that, when such is the case the
equitable title vests, and it is entitled to the protection of a
court of equity to preserve and defend the title so acquired.
Counsel insists that the Act of June 4, 1897, constitutes a
standing offer on the part of the government to exchange any of its
"vacant land, open to settlement" for a similar area of patented
land in a forest reservation, and that, whenever a person
relinquishes to the government a tract in a forest reservation, and
places his deed to the government of record as required by the Land
Department rules, and selects in lieu thereof a similar area of
vacant land, open to settlement, that such offer of the government
has thereupon been both accepted and fully complied with, and that
a complete equitable title to the selected land is thereby vested
in the selector.
But even the complete equitable title asserted by complainant
must, as it would seem, be based upon the alleged right of the
local land officers to accept the deed and approve the selection,
even though such approval may be thereafter the subject of a review
in the nature of an appeal from the action
Page 190 U. S. 312
of the local officers. There must be a decision made somewhere
regarding the rights asserted by the selector of land under the act
before a complete equitable title to the land can exist. The mere
filing of papers cannot create such title. The application must
comply with and conform to the statute, and the selector cannot
decide the question for himself.
We do not see how it can be successfully maintained that,
without any decision by any official representing the government,
and by merely filing the deed relinquishing to the government a
tract of forest reserve land and assuming to select a similar area
of vacant land open to settlement, the selector has thereby
acquired a complete equitable title to the selected land. The
selector has not acquired title simply because he has selected land
which he claims was at the time of selection vacant land open to
settlement, nor does the filing of his deed conveying the land
relinquished and the abstract of title with it show necessarily
that he was the owner of the land as provided for by the statute.
So far as his action goes, it is an assertion on his part that he
was the owner in fee simple of the land he proposed to relinquish,
and that the deed conveys a fee simple title to the government, and
also that he has selected vacant land which is open to settlement,
and that therefore he is entitled to a patent for such land. These
assertions may or may not be true. Who is to decide? Complainant
asserts that, if a decision be necessary before the vesting of a
complete equitable title, that in that case the local officers are
to decide that question, and by accepting the deed and making the
certificate already mentioned, they have decided it, and thereupon,
at all events, the complete equitable title accrued even though
such decision were subject to a review by the Commissioner of the
General Land Office and thereafter by the Secretary.
But, as has already been stated, there is nothing in the statute
of 1897 which gives the local land officers the right to decide
whether the selector has complied with the provisions of the act,
and unless those officers had that power, they did not acquire it
by assuming to exercise it. We do not say they did so assume. They
received, accepted, and filed the deed, the abstract of title, the
nonmineral affidavit, and the selection as
Page 190 U. S. 313
made by Clarke. They entered that selection upon the official
records of the land office, and they certified that it was free
from conflict, and that there was no adverse filing, entry, or
claim thereto; but it cannot be said that they decided that the
selector had complied with the provisions of the statute, or that
he had done all that he ought to have done in order to acquire his
alleged complete, equitable title.
Their certificate that the land was free from conflict was
simply a certificate as to what appeared on the books of the local
office, and the same may be said of the statement that there was no
adverse filing, entry, or claim thereto upon such books. No
affidavit of nonoccupancy was filed, and they did not certify that
the land so selected was in fact vacant or unoccupied, nor did they
assume to certify that the selected land contained no minerals,
although an affidavit to that effect was presented to them. In
truth, all that these local officers did was to certify that the
selector had done certain things, and that the land selected was
vacant and open to settlement so far as it appeared from the books
of the local land office.
Taking into consideration, however, the fact that the statute
did not vest the local officers with the right to decide upon the
question of a compliance with its terms, and the further fact that
the Land Department had adopted rule 18, above referred to, which
provides for the forwarding of all applications for change of entry
or settlement to the Commissioner of the General Land Office for
his consideration, together with a report as to the status of the
tract applied for, we must conclude that the action of the local
officers did not, as it could not, amount to a decision upon the
application of the selector, so that he became vested with the
equitable title to the land he assumed to select. It is certain, as
we have already remarked, there must be some decision upon that
question before any equitable title can be claimed -- some decision
by an officer authorized to make it. Under the rule above cited,
that decision has not been made. The General Land Office has (so
far as this record shows) come to no conclusion in regard to
it.
The protest by the defendants was duly filed within the time
permitted by the regulations of the office, and the questions
Page 190 U. S. 314
arising thereunder are, as stated, in the bill still pending
before the General Land Office. Whether it was necessary at the
time of making the selection for the selector to file, in addition
to his nonmineral affidavit, an affidavit that the land was not
occupied in fact is a question of law for the Land Department to
determine among the other questions to be decided by it. Its
decision of any legal question would not, of course, be binding on
the courts whenever such a question might properly arise in any
future litigation. It is also for the Land Department to determine
whether, if the land were not known to be mineral land at the time
of the selection, the fact that mineral in paying quantities has
been found since that time will vitiate that selection.
In Kern Oil Co. v. Clarke, 30 L.D. 550, 567, referring to the
necessity of the filing of a nonoccupancy affidavit, it was
said:
"That a nonmineral affidavit should accompany the selection is
not seriously questioned by appellant. It is just as essential that
it should be accompanied by a vacancy or nonoccupancy affidavit.
Appellant's contention, that the word 'vacant,' as used in the
statute, means public lands which are not shown by the records of
the local office or General Land Office to be claimed,
appropriated, or reserved, cannot be accepted. Portions of the
public lands may be occupied, and for that reason be not subject to
selection, and yet there be no mention of their occupancy in the
records of the Land Department."
Again, in Gray Eagle Oil Co. v. Clarke, 30 L.D. 570, it was also
held that, under the Act of June 4, 1897, it must be shown that, at
the date of selection, the selected lands were unoccupied as well
as nonmineral in character, and that, until that proof was
submitted, a selector had not done that which converts the offer of
exchange into a contract fully executed on his part whereby he
secures a vested right in the selected land. It is unnecessary for
the court to express an opinion as to the correctness of these
views of the Land Department as stated in its opinion in the above
cases.
What may be the decision of the Land Department upon these
questions in this case cannot be known, but, until the various
Page 190 U. S. 315
questions of law and fact have been determined by that
department in favor of complainant, it cannot be said that it has a
complete equitable title to the land selected.
Concluding, as we do, that the question whether the complainant
has ever made a proper selection of land in lieu of the land
relinquished has never been decided by the Land Department, but is
still properly before that department, the courts cannot take
jurisdiction and proceed to decide such question themselves. The
government has provided a special tribunal for the decision of such
a question arising out of the administration of its public land
laws, and that jurisdiction cannot be taken away from it by the
courts.
United States v. Schurz, 102 U.
S. 378,
102 U. S.
395.
The bill is not based upon any alleged power of the court to
prevent the taking out of mineral from the land, pending the
decision of the Land Department upon the rights of the complainant,
and the court has not been asked by any averments in the bill or in
the prayer for relief to consider that question.
For the reasons stated, we think the bill does not state
sufficient facts upon which to base the relief asked for, and that
the defendants' demurrer to the same was properly sustained. The
decree of the circuit court of appeals must therefore be
Affirmed.
* Page 36.
"That in cases in which a tract covered by an unperfected
bona fide claim, or by a patent, is included within the
limits of a public forest reservation, the settler or owner thereof
may, if he desires to do so, relinquish the tract to the
government, and may select in lieu thereof a tract of vacant land
open to settlement not exceeding in area the tract covered by his
claim or patent, and no charge shall be made in such cases for
making the entry of record or issuing the patent to cover the tract
selected:
Provided further, That in cases of unperfected
claims, the requirements of the laws respecting settlement,
residence, improvements, and so forth, are complied with on the new
claims, credit being allowed for the time spent on the relinquished
claims."
Petition for modification of judgment. June 1, 1903.
MR. JUSTICE PECKHAM:
Ordered, That the decree
dismissing the bill in this case be modified by providing that the
dismissal is without prejudice to such future proceedings as
complainant may be advised, and as so modified, the decree is
Affirmed.
