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Jones v. Florida C. & P. R. Co. (c. upon the soundest principles, exC.) 41 Fed. 70. This view is predi- empt from taxation. The sovercated upon the assumption that, eignty of a state extends to everywhile government lands are not re- thing which exists by its own served or held for specified national authority, or is introduced by its purposes, the United States occu- permission; but does not extend to pies the position of a mere individu- those means which are employed by al proprietor, with rights and rem- Congress to carry into execution edies neither less nor greater. An powers conferred on that body by examination of the cases cited, how the people of the United States." ever, discloses that the peculiar Van Brocklin v. Tennessee (Van facts with which they dealt, as well Brocklin v. Anderson) 117 U. S. as the limitations stated in the opin- 151–155, 29 L. ed. 845, 846, 6 Sup. ions written, greatly modify the Ct. Rep. 670, 672. scope of the doctrine stated; and the Moreover, the act enabling the later cases leave little doubt that the people of Utah to form a ConstituSupreme Court has not recognized, tion and state government imposes and will not recognize, the limited the condition that the people inhabcontrol of Congress over the terri- iting said proposed state forever tory and property belonging to the disclaim all right and title to the unUnited States, for which defendant appropriated public lands lying contends. The public lands of the within the boundaries thereof. In United States are held by it, not as the Constitution of Utah, subsean ordinary individual proprietor, quently adopted, this provision was but in trust for all the people of all incorporated in terms. It is urged the states, to pay debts and pro- that insistence upon these terms, vide for the common defense and when the new state of Utah was adgeneral welfare, under the express mitted, implies that the exclusive terms of the Constitution itself. It control of Congress was conceived matters not whether the title is ac- not to exist in the absence of such quired by cession from other states, an express reservation; but the betor by treaty with a foreign country, ter view is that the expression in whether the lands are located with- the Enabling Act, and in the Conin states or in territories, they are stitution of the new state, was but held for these supreme public uses declaratory of a constitutional powwhen and as they may arise. The er known to exist, and was inserted Congress has the exclusive right to to forestall all possible contention. control and dispose of them, and no Van Brocklin v. Tennessee (Van state can interfere with this right Brocklin v. Anderson) 117 U. S. or embarrass its exercise. United 167, 29 L. ed. 845, 6 Sup. Ct. Rep. States v. Gratiot, 14 Pet. 526, 10 L. 670; Stearns v. Minnesota, 179 U. ed. 573; Pollard v. Hagan, 3 How. S. 223, 45 L. ed. 162, 21 Sup. Ct. 212, 11 L. ed. 565; Irvine v. Marsh- Rep. 73. It is idle to insist that the all, 20 How. 558, 15 L. ed. 994; Gib- provisions of the Utah Enabling son v. Chouteau, 13 Wall. 92-99, 20 Act and Constitution do not interL. ed. 534-536.

fere with defendant's contentions. "The means employed by the gov- In the brief counsel say: "They ernment of the Union are not given did not provide that the land by the people of a particular state, should remain 'at the sole and entire but by the people of all the states; disposition of the United States,' and being given by all, for the bene- but merely provided that it should fit of all, should be subjected to that remain 'subject to the disposition of government only which belongs to the United States.'" all. All subjects over which the This is a distinction without a sovereign power of a state extends substantial difference. The acquisiare objects of taxation; but those tion of a perpetual easement under over which it does not extend are, the alleged power of eminent do

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(144 C. C. A. 470, 230 Fed. 328.) main is such an appropriation as things within its territory which do amounts to an invasion of the con- not belong to some other jurisdicstitutional power of Congress. tion, such as the representatives of

"The power to tax (as the power foreign governments, with their to take] involves the power to de- houses and effects, and property bestroy; the power to destroy may de longing to or in the use of the govfeat and render useless the power ernment of the United States." to create; and there is a plain re- And in Van Brocklin v. Tennespugnance in conferring on one gov- see (Van Brocklin v. Anderson) 117 ernment a power to control the con- U. S. loc. cit. 165, 29 L. ed. 850, 6 stitutional measures of another, Sup. Ct. Rep. 670, Mr. Justice Gray which other, with respect to those quotes approvingly the following very measures, is declared to be su- language of Mr. Douglas, in which preme over that which exerts the Mr. Webster concurred: “The title control. The states have no power, of the United States can be devestby taxation or otherwise, to retard, ed by no other power, by no other impede, burden, or in any manner means, in no other mode, than that control, the operations of the con- which Congress shall sanction and stitutional laws enacted by Con- prescribe. It cannot be done by the gress to carry into execution the action of the people, or legislature powers vested in the general gov- of a territory or state.” ernment." Van Brocklin v. Ten- To hold otherwise "would tend to nessee (Van Brocklin v. Anderson) create a conflict between the offi117 U. S. 155, 156, 29 L. ed. 845, cers of the two governments, to de846, 6 Sup. Ct. Rep. 670, 673. prive the United States of a title

The United States does not and lawfully acquired under express cannot hold property as a monarch acts of Congress, and to defeat the may for private or personal uses; it exercise of the constitutional power cannot hold as a private proprietor to lay and collect taxes, to pay the for other than public objects. Van debts, and provide for the common Brocklin v. Tennessee (Van Brock- defense and general welfare of the lin v. Anderson) 117 U. S. 158-161, United States." 29 L. ed. 847-849, 6 Sup. Ct. Rep. The rights of the states in the 670. “All the public lands of the shores and beds of navigable waters nation are held in trust for the peo- below high-water mark bear no ple of the whole country.” United analogy to the claim of defendant States v. Trinidad Coal & Coking here. In such cases the governCo. 137 U. S. 160, 34 L. ed. 640, 11 ment asserts not title, but control Sup. Ct. Rep. 57; Light v. United over navigation. United States v. States, 220 U. S. 523-537, 55 L. ed. Chandler-Dunbar Water Power Co. 570-574, 31 Sup. Ct. Rep. 485. 229 U. S. 53, 57 L. ed. 1063, 33 Sup.

The United States can prohibit Ct. Rep. 667, 678. The distinction absolutely or fix the terms on which is clearly drawn by the Supreme the property may be used. As it Court in Van Brocklin v. Tennescan withhold or reserve the land it see (Van Brocklin V. Anderson) can do so indefinitely. Light v. 117 U. S. 167, 168, 29 L. ed. 850, United States, 220 U. S. loc. cit. 851, 6 Sup. Ct. Rep. 670: “Upon 536, 55 L. ed. 574, 31 Sup. Ct. Rep. the admission of a state into the 485; Stearns v. Minnesota, 179 U. Union, the state doubtless acquires S. 243, 45 L. ed. 173, 21 Sup. Ct. general jurisdiction, civil and crimRep. 73. In Coe v. Errol, 116 U. S. inal, for the preservation of public 517-524, 29 L. ed. 715-717, 6 Sup. order, and the protection of perCt. Rep. 475, 477. Mr. Justice sons and property, throughout its Bradley said: “We take it to be a limits, except where it has ceded point settled beyond all contradic- exclusive jurisdiction to the United tion or question that a state has States. The rights of local soverjurisdiction of all persons and eignty, including the title in lands

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Eminent domain

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held in trust for municipal uses, and stitution, that course is usually purin the shores of navigable waters sued and is not departed from below high-water mark, vest in the without important reasons." state, and not in the United States. The same considerations moved New Orleans v. United States, 10 this court upon the last appeal to Pet. 662, 737, 9 L. ed. 573, 602; Pol- refrain from making an express delard v. Hagan, 3 How. 212, 11 L. ed. termination of this point, although 565; Goodtitle v. Kibbe, 9 How. 471, then suggested, as being unneces13 L. ed. 220; Doe ex dem. Hallett sary to a disposition of the case. v. Beebe, 13 How. 25, 14 L. ed. 35; Now, however, the question is Barney v. Keokuk, 94 U. S. 324, 24 squarely presented, and we answer L. ed. 224. But public and unoccu- it without hesitation. In our opinpied lands, to which the United ion, the public lands States have acquired title, either by involved were not -lands belong. deeds of cession from other states, subject to state ing to United or by treaty with a foreign country, power of eminent Congress, under the power con- domain, either directly or indirectferred upon it by the Constitution ly, without the consent of the 'to dispose of and make all needful United States; and, to sustain its rules and regulations respecting the contention, the defendant must territory or other property of the point to some express grant by the United States, has the exclusive government, or at least to subsistright to control and dispose of, as it ing legislation from which the has with regard to other property grant may be inferred or by of the United States; and no state which its claims have been reccan interfere with this right, or em- ognized

ognized and preserved. United barrass its exercise. United States States v. Utah Power & Light Co. v. Gratiot, 14 Pet. 526, 10 L. ed. (C. C. A.) 126 C. C. A. 376, 209 573; Pollard v. Hagan, 3 How. 212, Fed. loc. cit. 559. In this view, it is 11 L. ed. 565; Irvine v. Marshall, 20 unnecessary to consider whether How. 558, 563, 15 L. ed. 994, 997; there has been any effective exerGibson v. Chouteau, above cited.” cise of the power claimed.

It has been thought advisable and 4. We come now to the defense of necessary to carry this discussion to equitable estoppel. This is predisomewhat unusual length because cated upon the view that with reof the importance of the question spect to its proprietary interests a involved, the earnest insistence of sovereign is subject to the princicounsel upon the right asserted, and ples of equitable estoppel in the the absence of an express ruling by same manner and under the same the Supreme Court thereon. In circumstances as a private individUnited States v. Chicago, 7 How. ual or corporation. By its amend185, 12 L. ed. 660, the proposition ed answer defendant alleges that its was not decided because “open to works were constructed at very some debate” and “not necessary to great expense, and with the prea disposition of the case." In Van sumed knowledge of the plaintiff, Brocklin v. Tennessee, supra, it was through its agents and representaannounced: “When that question tives; that for nine years plaintiff shall be brought into judgment neither objected to nor protested here, it will require and will receive against the use of its land; that to the careful consideration of the enjoin the maintenance and opercourt."

ation of the works will cause seri. In Siler v. Louisville & N. R. Co. ous loss to the defendant and great 213 U. S. 175, 53 L. ed. 753, 29 Sup. inconvenience to the public. Ct. Rep. 451, it was said that: It should be observed, in passing, "Where a case in this court can be that while the decree below quieted decided without reference to ques- title in complainant and embraced tions arising under the Federal Con- an injunction against the defendant, (144 0. 0. A. 470, 230 Fed. 328.) nevertheless this situation was the thorized or wrongful entry upon direct result of defendant's insist public lands, and the making of imence upon the rights for which it provements thereon, without taking now contends. The bill of complaint the steps required by law to initiate did not seek to expel the defendant a legal right thereto, are wholly infrom the public domain, but prayed operative as against the United that it should be enjoined from States. Russian-American Co. v. maintaining its alleged unlawful United States; 199 U. S. 570, 50 L. possession and occupancy without ed. 314, 26 Sup. Ct. Rep. 157; Fristhe permission of plaintiff, and bie v. Whitney, 9 Wall. 187, 19 L. without first complying with the ed. 668; Lake Superior Ship Canal, laws of the United States, and the R. & Iron Co. v. Finan, 155 U. S. rules and regulations promulgat 385, 39 L. ed. 194, 15 Sup. Ct. Rep. ed by the Secretary of Agriculture 115; United States v. Trinidad Coal relating to national forests, and, & Coking Co. 137 U. S. 160, 34 L. further, that defendant be required ed. 640, 11 Sup. Ct. Rep. 57. Long to make pecuniary payment to the acquiescence does not legalize an plaintiff for use and occupation. unwarranted appropriation. CamThe government has not refused a field v. United States, 167 U. S. 527, right of way over its lands for the 42 L. ed. 263, 17 Sup. Ct. Rep. 864. beneficial uses in question. The is. And failure to object does not consue of interrupted service and great fer any vested right as against the inconvenience and hardship to de- government. Light v. United States, fendant's customers, and to the pub- 220 U.S. 523-535, 55 L. ed. 570, 573, lic generally, is not legitimately in 31 Sup. Ct. Rep. 485; Steele v. Unitthis case, although persistently ed States, 113 U. S. 130, 28 L. ed. urged. The government has shown 952, 5 Sup. Ct. Rep. 396; Wilcox v. no disposition to deal unjustly with Jackson, 13 Pet. 513, 10 L. ed. the states, nor with their citizens, in 271. this respect, and it is not to be ex- It is equally well settled, and is, pected nor presumed that it will do in fact, conceded, that laches is not So. United States v. Utah Power & imputable to the government, and, Light Co. supra; Stearns v. Minne- as stated in United States v. Kirksota, 179 U. S. 223-243, 45 L. ed. patrick, 9 Wheat. 720–735, 6 L. ed. 162–173, 21 Sup. Ct. Rep. 73. The 199–203: “This maxim is founded, only question here presented is not in the notion of extraordinary whether a public service corpora- prerogative, but upon a great pubtion, assuming to act in the name of lic policy.

lic policy. The government can the state of Utah, shall receive a transact its business only through free and permanent right of way its agents; and its fiscal operations and capitalize that gratuity for are so various, and its agencies so private gain, or whether the United numerous and scattered, that the States shall control the disposition utmost vigilance would not save the of its property and receive fair com- public from the most serious losses, pensation as other landed proprie- if the doctrine of laches can be aptors for the use thereof. If the plied to its transactions. It would, exigencies of this particular com- in effect, work a repeal of all its semunity are such that the interests curities." of the people demand public grants The defendant admits the soundand concessions for their necessary ness of this principle, but makes a comfort and convenience, no doubt distinction between laches, or mere such will be made, as they always delay, and equitable estoppel as rehave been made, by government, sulting from the showing made by state and national, but they must its answer, to which reference has flow from congressional action, and been made. Reliance is placed in not from individual appropriation. great measure upon New York v. It is well settled that an unau- Pine, 185 U. S. 93, 46 L. ed. 820, 22

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Sup. Ct. Rep. 592, in which it was Iowa part of the abandoned bed of held: "A failure to pursue statu- the river. In opposition to this tory remedies is not always fatal to claim complainants set up long, the rights of a party in possession, continuous, adverse possession; that and if full and adequate compensa- the land was an accretion to their tion is made to the plaintiff, some- own lands, to which they held title times the possession of the defend- from the United States; and, furant will not be disturbed.”

ther, that the state had long acquiIn that case the municipality was esced in their title and possession, undertaking a large work with a and had recognized it affirmatively view of supplying its citizens with by the levy and collection of taxes water. It had been engaged in this upon the disputed land as the propwork for two years, and had nearly erty of the complainants. For more completed its dam. Before the case than twenty years the plaintiffs was brought the plaintiffs and the and their grantors were in undiscity had been trying to agree upon turbed possession of the land under the amount of compensation, and claim of title. They expended large the former were seeking compensa- sums of money on its improvement. tion for the injuries they would sus- The state, with full knowledge of tain, and were not insisting upon the situation, listed the property as their alleged right to an abandon theirs and levied and collected taxes ment of the work. In such case it from them. was held that the city might well In Hemmer v. United States, suassume that payment of a just com- pra, one Henry Taylor, an Indian, pensation would be accepted in lieu entered 160 acres of land in South of the right. The power of eminent Dakota, made his final proof, paid domain was conceded. The plain- for the land, and obtained his final tiffs were held to be estopped from receiver's receipt under the Act of insisting upon an abandonment of Congress of March 3, 1875 (18 the work, inasmuch as adequate Stat. at L. 420, chap. 131, § 15, compensation might be ascertained Comp. Stat. § 4611, 3 Fed. Stat. and decreed.

Anno. 2d ed. p. 819), which providOur attention is also directed to ed that any Indian who was the the decisions of this court in Iowa head of a family, or who had arv. Carr (C. C. A.) 112 C. C. A. 477, rived at the age of twenty-one 191 Fed. 257, and Hemmer v. United years, and had abandoned, or should States (C. C. A.) 123 C. C. A. 194, thereafter abandon, his tribal re204 Fed. 898, wherein it was held lations, should be entitled to the that in a suit in equity the claims benefits of the Homestead Law; of the United States appeal to the but that the title to the land he conscience of the chancellor with should acquire should be inalienable the same, but with no greater or for five years from the date of his less, force than those of a private patent therefor. In 1884, after he individual under like circumstances, had completed his five years of resiand are determinable by the same dence and occupation of his homerules and principles. In the former stead, and thus had completely of these cases one Samuel Carr and earned it, a law was passed providothers brought suit against one ing that the government would hold Charles R. Hannan, etc., to quiet such land in trust for twenty-five the title to certain land on the Iowa years instead of five. By mistake, shore of the Missouri river. The the patent which was issued to him state of

of Iowa intervened, and contained this provision of the later sought to establish its claim to a act. Afterwards the title passed part of this accreted tract on the from Taylor to Hemmer. The Unitground that it was appurtenant to ed States brought suit in equity an island on the Iowa part of the against the immediate and remote river bed, and, in fact, was the grantees of Taylor, for the purpose

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