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(144 0. C. A. 470, 230 Fed. 328.) of setting aside all the conveyances scattered, that the utmost vigilance under which they held, upon the would not save the ground that this homestead was in- public from the


eral government alienable for twenty-five years after most serious losses -permitting

improvements. the date of the patent issued under if the doctrine of the Act of 1884 (Act July 4, 1884, laches can be applied to such tranchap. 180, 23 Stat. at L. 96, Comp. sactions.” The doctrine of equitable Stat. § 4612, 3 Fed. Stat. Anno. 2d estoppel has no application here. ed. p. 820). In the course of the It remains to consider the conopinion the doctrine was restated tention of the government upon its that in such a suit the claims of cross appeal, viz., that the courts the government appeal to the con- should have decreed an accounting science of the chancellor with the and damages as prayed. We are same, but with no greater or less, unable to perceive why that conforce than those of a private individ- tention is not sound, and this notual under similar circumstances. withstanding the lands have not However, the court held that the

been injured and would not, perAct of 1884 did not repeal, amend,

haps, have been otherwise leased or or modify any of the provisions of

used by the government during the the earlier act, and did not extend

same period. United States V. from five years to twenty-five years

Bernard (C. C. A.) 121 C. C. A. the restriction on alienation; that Taylor had fully complied with the 190, 202 Fed. 731; St. Louis v.

Western U. Teleg. Co. 149 U. S. prior act, had all rights under it, and that Hemmerstood in his 465, 37 L. ed. 810, 13 Sup. Ct. Rep. shoes. Under this holding, the dis- 990. It would seem further that the position of the case did not depend charge imposed by the regulations upon the doctrine of equitable es

should fairly and reasonably meastoppel quoted.

ure the value of such use. Congress Nevertheless, there can be no

clearly has the power to prescribe doubt that situations may be and

the terms upon which it will per

mit the lands of the United States are presented where both state and nation enter courts of equity as

to be used or otherwise disposed of;

and the authority to make such suitors, under conditions which

rules conferred upon executive of. place them upon an equal footing in

ficers is not a delegation of legisthis respect with the private citi

lative power. zen; that where the relations exist

"A provision in an act of Coning are such as to convey actual

gress as to the use made of moneys knowledge of and acquiescence in

received from government property asserted claims, under conditions clearly indicates an authority to the which would make the subsequent executive officer authorized by statdenial of such claims inequitable, ute to make regulations regarding the doctrine of equitable estoppel, the property to impose a charge for as distinguished from mere laches, its use."

its use." United States v. Grimaud, may be invoked even against the 220 U. S. 506, 55 L. ed. 563, 31 Sup. government. The cases just cited Ct. Rep. 480; Cosmos Exploration are examples of such, but their doc- Co. v. Gray Eagle Oil Co. 190 U. S. trine cannot be so far extended as 301, 47 L. ed. 1064, 23 Sup. Ct. Rep. to validate the unauthorized ap

692, 24 Sup. Ct. Rep. 860. propriation of the public lands up

By the Act of 1896, the Secretary on the mere ground of occupation of the Interior is expressly authorand improvements made, the knowl- ized to permit the use of such rights edge of which is presumed to be of way under general regulations to brought home to the government be fixed by him. It follows that the through “fiscal operations so vari- decree of the trial court, quieting ous, and agencies so numerous and and confirming the title to the lands

in question, as against all claims, by the Secretary of Agriculture redemands, and contentions of the de- lating to national forests, must be fendant, and enjoining said defend- affirmed, but the cause will be reant from further operating the said manded to the District Court for works without the permission of an accounting for the plaintiff, and from further

, from further the reasonable val. Public landmaintaining its unlawful and tor- ue of use and occu- accounting for tious possession and occupancy with- pation, and in the Cache national forest without such other proceedthe permission of plaintiff, and ings as may be necessary, in acwithout first complying with the

cordance with the views herein laws of the United States and the expressed. rules and regulations promulgated Petition for rehearing denied.


use and

for occupation.


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 United 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 control 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 power to control their occupancy and use, to protect them from trespass and injury, 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 power.”

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

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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 alleged illegal assessment upon proppower to dispose of and make all need- erty situated within a military reserful rules and regulations respecting vation. the territory belonging to the United The matter received very able conStates is a supreme law of the land, sideration in United States v. Railroad and embodies an express grant of pow- Bridge Co. (1855) 6 McLean, 517 Fed. er to the national government. It Cas. No. 16,114. Upon this point it means that the title and rights in and is said: “The proprietorship of land to public lands are created by the acts in a state by the general government of Congress, and must be governed by cannot, it would seem, enlarge its sovtheir provisions whether they are hard ereignty or restrict the sovereignty or lenient, and that no rights what- of the state. This sovereignty exever can be obtained to lands within tends to the state, subject only to the United States except as Congress the proprietary right of the lands may consent.

owned by the Federal government, The foregoing views show a ten- and the right to dispose of such dency greatly to restrict, if not ab- lands and protect them under such solutely to deny, the power of the regulations as it may deem proper. state with regard to the right to The state organizes its territory into take title or create easements upon counties and townships, and regulates land of the Federal government by its process throughout its limits. And the exercise of the power of eminent in the discharge of the ordinary funcdomain, except as such right may be tions of sovereignty, a state has a expressly conferred by Congress. In right to provide for intercourse bethis regard the late cases do not seem tween the citizens, commercial and in harmony with the views of the otherwise, in every part of the state, earlier cases on the matter, although by the establishment of easements, it may be said that the earlier views whether they may be common roads, are based almost entirely upon obiter turnpike, plank, or railroads. The statements.

kind of easement must depend upon In one of the earlier cases, United the discretion of the legislature. And States v. Chicago (1849) 7 How. (U. this power extends as well over the S.) 185, 12 L. ed. 660, it is said arguen- lands owned by the United States, as do that it is not questioned that land to those owned by individuals. This within the state, purchased by the power, it is believed, has been exerUnited States as a mere proprietor, cised by all the states in which the and not reserved or appropriated for

public lands have been situated. It any special purpose, is liable to con

is a power which belongs to the state, demnation for streets or highways,

and the exercise of which is essential like the lands of other proprietors, un- to the prosperity and advancement of der the rights of eminent domain. To

the country. State and county roads the same effect is the language of Jus

have been established and constructed tice Field in Ft. Leavenworth R. Co. v. Lowe (1885) 114 U. S. 525, 29 L. ed.

over the public lands in a state under

the laws of the state, without any 264, 5 Sup. Ct. Rep. 995, wherein it is

doubt of its power, and with the acsaid arguendo that "so far as the land constituting the reservation was

quiescence of the Federal governnot used for military purposes, the

ment. In this respect the lands of

the public have been treated and appossession of the United States was

propriated by the state as the lands only that of an individual proprietor.

of individuals. These easements have The state could have exercised with

so manifestly conduced to the public reference to it the same authority and

interest, that no objection, from any jurisdiction which she could have ex

quarter, has hitherto been made. And ercised over similar property held by it is believed that this power belongs private parties.” This case, however, to the states. involved an action by a railroad com- "It is difficult to perceive on what pany to recover taxes paid under an principle the mere ownership of land by the general government within a a state has the power to construct a state should prohibit the exercise of public road through the public lands.” the sovereign power of the state in so In Jones v. Florida C. & P. R. Co. important a matter as the easements (1889) 41 Fed. 70, the rule is stated named. In no point of view are these that every state has, by virtue of its improvements prejudicial to the gen- sovereignty and the right of eminent eral interest; on the contrary, they domain, power to create, by estabgreatly promote it. They encourage lishment of railroads, easements upon population, and increase the value of all lands within its limits, except land. In no respect is the exercise of such lands as may be expressly rethis power by the state inconsistent served for the purposes of the national with a fair construction of the con- government, and such easements as stitutional power of Congress over the

interfere with the purpose for which public lands. It does not interfere

the land is reserved.

In Illinois C. R. Co. v. Chicago, B. & with the disposition of the lands, and instead of lessening, enhances their

N. R. Co. (1880) 26 Fed. 477, it is said

arguendo that. lands owned by the value.

United States within the state, and not "Where lands are reserved or held

held for a public purpose, are subject by the general government for specified and national purposes, it may be

to the state's right of eminent domain, admitted that a state cannot construct

the same as lands owned and held by

individuals, and it is only land which an easement which shall, in any degree, affect such purposes injuriously.

the United States owns and holds

within the state upon which it mainNo one can question the right of the

tains public buildings, arsenals, forts, Federal government to select the sites for its forts, arsenals, and other pub

etc., that is exempt from such au

thority. lic buildings. The right claimed for

In People ex rel. Aspen M. & S. Co. the state has no reference to lands

v. District Ct. (1887) 11 Colo. 147, 17 specially appropriated, but to those

Pac. 298, it is also stated arguendo, held as general proprietor by the gov

subject to certain proprietary rights ernment, whether surveyed or not. The right of eminent domain appertains

in the public government, that "the

sovereignty of the state extends to all to a state sovereignty, and it is exer

the territory within its limits, and in cised free from the restraints of the Federal Constitution. The property

the discharge of the ordinary funcof individuals is subject to this right,

tions of sovereignty the state may es.

tablish easements as well upon the and no reason is perceived why the

lands owned by the United States, as aggregate property, in a state, of the individuals of the Union, should not

upon lands owned by individuals.”

In Burt v. Merchants' Ins. Co. also be subject to it. The principle is the same, and the beneficial result

(1871) 106 Mass. 356, 8 Am. Rep. 339,

it is said that the United States, acting to the proprietors is the same, in pro

through Congress, has the right of portion to their interests. These ease

eminent domain for all purposes inments have their source in state pow

cidental to the exercise of the power er, and do not belong to Federal

conferred by the Constitution, such as action. They are necessary for the

exist by necessary implication, and public at large, and essential to the interests of the people of the state. The

none other; and on the other hand the

state as to other purposes has the power of a state to construct a road necessarily implies the right, not only

same right even to the extent of takto appropriate the line of the road, but

ing public lands of the United States. the materials necessary for its con

The general rule has also been struction and use. Whether we look

stated in the following cases, that the to principle or the structure of the

United States has but a proprietary Federal and state governments, or the interest in lands held by it within the uniform practice of the new states, state for no special purpose, and since there would seem to be no doubt that the sovereignty is in the state, the

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