UNl'.rBD STATES ,. DALLES MILITARY ROAD 00.
4:9.
UNITED STATES 'V. DALLES MILITARY ROAD {Circwtt Court, D. Oregon.
Co. et al.
February 20, 1890.)
LJ.lIlD
In 1867 there was granted the state of Oregon, by an act of oongress, certain publio lands to aid in the oonstruotion of a military wagon road. The grant was in the words, "there be and hereby is granted to the state of Oregon, "and it was provided that the lands granted should be disposed of by the legislature for the purposes of the grant. It was further provided that when the governor of the state should certify to the secretary of the interior that.10 oontinuous miles of the aided road are oompleted, a quantitr of the lands granted, not exoeeding 30 seotions, might be sold, and so on from tIme to time until the road should'be oompleted. The governor of Oregon having thereafter oertified: to thll COmpletion of said road, the commissioner of the general land offioe withdrew from sale the lands granted, in favor of the defendant oompany, to whioh the grant had been transferred by aot of the state legish:iture, and afterwards, in 1874, oongressby an aot provided" that in all cases wnen the roads in aid of the oonstruction of which said lands were granted, are shown by the oertificate of the governor f the lltate,of Oregon, a,s in, said acts provided, to have been oonlltructed and oompleted; patents for said lands shaH issue in due form to the state of Oregon as fast as the same shall, under said grants, 00 selected and certified, unless the 'state of Oregon shal1, by public acts, have transferred its interests in said landsto any corporation or corporations, ,\D which case patents shall issue from the general land-office to such corporation ,or corporations upon payment 01 the necessal'Y expenses thereof. " Held: (1) The act grant.Ing lands in aid of the Dalles military road passed a present title to the egon, to be defeated only by a brel\Ch of conditions subsequent. (2) The fact that the goveruor's oertificate was not made on completion of eaoh section of ten' miles of the road, makes no difference. ,It is suftloie1;lt if Il1adlil,at one time,covering the completion of the whole road., '(3) '1'he authority to determine whether the road was completed was vestedllolely in the governor of Oregon, whose deCision, In the absence of any suoh fraud as would vitiate it, is necessarily final and oonolusive. (4) The right to a patent once vested, is equivalent, as respects the goverDIl1ent dealing ,With the public lands, to a patent issued. (5) Purohasers of these lands from the state's grantee, were not required to go over the road and ascertain for themselves whether it had been completed in all partioulars in accordanoewith the reqUirements of the granting act,but were entitled tll relY upon tbe record, oonstituted by the said acts of congress and of the state, the withdrawal Of the lands, by the commissioner, and the governor's certifioate. (6) The provision of the act 01 congress authorizing the bringing of this suit by the United States,to procure a deoree of forfeiture of said lands, "saving and ttle rights of bl)najlde purohasers of either of said grants, or of any portion of Bald grants, for a valuabll;j consideration," recognizes the rights of innoc!3nt purchasers, if they had been otherwise doubtful. (7) Where 15 years have elapsea aft,er affirmative and eonfirmatory action by oongress in direoting the issue of patents to; lImds in all cases whe/."lil the certiJlclilotll of the governor had been made, and 20 years have elapsed after tht;l date of suoh certificates, ,and before the act authorizing the bringing 01 this'suit, it is not Within the established principles of equity 'urisprudenoeto allow. such suit to be maintained, and the cause of suit ought 'to be regarded as stale. (8) The goverIlment is nowestoppe4 by the action to time by cOI\lrresl' and its agents duly authorized, and the public record mlMfe of such acts, from alleging the non-fulfilment of the statutory oonditions of tbegrant. ' " (SyHabU8 by the Court.) ,, , 0,
GRANTS-MILITARY RoADS-CoMPLETION-BoNA FIDE PlJRCHASERS-EsTOPPEL.
This is a bill in equity, filedby the of the ,United States, in pursuance of the act of congress of March 2,188f.1, (26 St. 850,) to procure a decree of forfeiture of alUll.nds granted by the 'act of congress of February 25, 1867, to the state ofOregon, to aid inthecol'l'struction ora military wagon road from Dalles City, on the ,to Fort the Snake riyer, found hi 409, on thq,t the of the hndnot ·lIll P3te"ts is!lue,dj .by,the-, .Ullited the act, and all conveyances to purchasers under said
der the act, as well as a forfeiture of the lands still unpatented. The bill allegell, in substa.nce, tbattberoad, in aid of w4ich the grant was made. was never constructed in whole, or in part: that through the fraudulent representations of the officers, st9ckholders, and agents of the corporation, the governor of Oregon was deceived and induced to issue a certificate in pursuanceof'theprovisionsof:theact, declaring that he had examined the roagtb,r9ughout ,ita.en.tire that it had been constructed and complettld in all respects in accordance with the statute; and that, relying'J1Pon tliis certificate, the pateJ;lts to portions of the lands had been issued bY,t United. States. The state of Oregon, by an act passed October 1868,,!granted to the defendant, the Dalles MiIitarrRoad Company, for the same purpose and upon the same terms as prescribed in said St. Or. 1868, 3. After the road was claimed to have been completed in accordance with the provisions · of said seveJ.'l:'! ,and after the governor of Oregon had certified to the completion,8sprClvi,ded in theacts,a:nd the road had beenacrepted, and patents to portions o,fthe lands iS8ued, the said Dalles Military Road Company conveyed the lands for a ,large consideration, to one Edward Martin, and by sl1l1dry tnesne conveyaPcesfrom him, the title became vested in the defendant,'the Eastern Oregon Land Company. The defendants, by leave of the court first fijel! two pleas, to the bill, supported by an answerunderoath; denying the fraud alleged in the unverified bill as prescribed by ;Equity Rule "32.: ' The first alleges:
he
the governor of Orep:on, any false or . .. That fraudulent reprfBentations having at any time been Ull;\de to hIm 1:>y the officers, atockholders,or'o.gents of the Dalles Milital'yRoad Company. 01' any other person, or persons in its ,Qrtbelrinterest, and without anyone or more pf themhiwim!;talsely ,or frauduleutly induced bim to certify that the road of said company was cunstructed:inaccordallce with law; and without any fraud January 23,1869, made a certificate. whlchcertifiwhateve,ron follOWing: , · GflOl'ge L. Woods, govl'rnor of the state of cate is in do hereby certIfy that thisplllt or map of the Dalles Military Road has beendrlly lUad',ln my office by the Dalles Military Road Company, and surveys, as far as said public sluvel's are shows in conllect.ton with the completf'd.the IOl:&t1oll of the line o,f·l'oute as actuaUy,:surveY"d, .aWl upon which their road,il'l'COnstructedin;accordance with the requi rements. of an act 25,1867,entitled ·An act granting lands to the statl' of Or(!gQ1),' to aid in, c'otlstruction of aMUitary Wa/;(on Road from Dalles City, on tile Columbia river, to Fort BoiRe, ,on Snake river,tand with the act of the legislative assembly of the state of Oregon, approved ,October 20, 1868'"entitll'd · An, certain lands to Dalles Military !£toad Compauy.'I further certify that I have made a 'carefUl examination <if'said road sineeits completion; and' that the same is 'built in all respl'ct!:!' as required by .said ltbove recitt'd ,acts, and that said road is accepted ; I that aftl'r·WIU.rllil.,oU May D,"les MihtaryRoad OomPliny, for a valuable ,the sum, of ,$125.000, to it paid by ,Edward Martin, the to heirs, 8ndassignll. andtbat by sundry Mesne conveyancps from saId Martin, to the Eastern thedefendantB.tbe tWe to all said lands lJecaltie afi(l·Mw is 'vested in said defendant, the Eastern 01'egon Land Company." ,,' ',',:,..
r.
UNITED Sl'J\TES 11. DAUBS IIILlTABY tOAD
00.'495
:,The:secondpleaaets out the same facts, i:p:the first, and tije further facts·that on December 18, 1865}, after making of said certificate by ,the governor of Oregon, the of the generalland-offige withdrew from sale the odd numbered within three miles,on each side of the said road, in favor ,of the DaUes :Military Road Company; that congress afterwards" on June 18, 1874" passed an act entitled "An act to authorize the issuance of lands granted to the state of Oregon in certain cases," which after reciting that congress bad g11lQted the state, of Oregon certain lands, "to aid, in the constr,uctionofeert(l.jn military wagon roads ill s!Ii,d state," and that "thereel;ists no providing for Ulsuing; formal patents fOJ:, ,said lands, vide!'} '!That in all ,cases when ,the roads in aid of the construction which said lands were a1'eshovln the Certificate of the g01Jern()t oj the state of Oregon, asJnsaid /tets prpvided, to been constructed and completed, patents for said lands shall issue indue form, to the state(jfr (])regon, as fast as the same ahall,under said grants, be selected. and certified, unless the state of Oregon jshall, by pUblic acts, have transferred its interests in said lands to any corporation or corporations, in Wlbio.lllMtSe patents shall issue' from the: general land-office to such corporation, or corporations, upon payment of the necessary expenses thereof, Provided: that this shall not be construed to revive any land gJrant already expired, nor ,to createa,ny, new rights of any kind, e)llcept to providefQr issuing patents for land: to which the state is already entitled jll that Edward Martin a resident of the state of California, placing confidence in the truth of the saidcertificate{jf the governor of gon, dated June 23, 1869, that the said road had. been duly constructed, according to the requirements of said act.of congress; approved February 25,1867; and placing confidence in.:theorder of the commissioner -of the genera;}rland-office, dated Deceml:ler 28, 1869, withdrawing saidlan4s from sale in favor of the Dalles Military Road Company, and believing that, said act of congress approved June 18; 1874, would be carried into effect by the issue of patents . to the Dalles Military Road Company ,for all of saidlands, did, on the 31st day ofMay, 1876,purchasein good faith, for a. .valuable consideration, to-wit: the sum of $125,000 then paid:by the said Martin to said Dalles.MilitaryR-oad Company, except ,stich portionsof it as had beenpteviouslysold by it; that previous to the time of paying said SUIll of $1.25,000, purchase money, andreceiving said deed, the said Edward Martinha.d no notice of any failure on the part of the Dalles Military RoaQ-Company; to construct and complete the said road, in accordance with. the requirements of said'lIet of ,congress, approved February 25, 1867, a..nd had no reason to' .that the same was not constructed in accordance with the. sl:\.id act :of congress, but: on the contrary, he was informed and belifwed thll.tsaid 'road had been so constructed, withwidtb, gradation, and oridges,: to permit of its regular use.as a:wagonroadj that thereupon said .Martin, became'andw8sthe bona'ftde purchase!' of all said lands f6ra.'9'iUuaple 'consideratiOn, and they him, by sll,id'corp()ratiob; an'dthatby imesile conveyances ·allofsaid' lanJrs·bay:e· been conVeyed to
I'BDEBAL REPORTER, vol.
41.
'tiefendaBt,the Eastem Oregon Land Company, with like good faith, 'and {or a valuable cimsideration, and they are now held by said defend'ant, the Eastern Oregon Land Company. For hearing on exceptions to porti6ns of bill for impertinence, see 40 Fed. Rep. 114. L;L.McArthu,'t U.S. Atty., for ¢omplainant. 'Jaine8 K. Kelley and Dolph, Bellinger, MaUory &; Simon, for defendants. Before SAWYEn, Circuit Judge. SAWYER, J., (after:8fiJ.fting the jact8as· hereinbefore Bet out.) The pleas having been set down {or argument by the complainant, for insufficiency, all' ,the material allegatioDsmust be taken as true for the purposes of this decision. In Jriy opinion, both pleas are good. The provisions bf the act of congress making the' grant,are as follows: "'1'bat there be. and hereby is granted to the state of Oregon to aid in' the oonstruction of a military wagon road'" ... '" alternate sections of public lands. designated by odd numbers. to the. extent of three sections in width on eaqh of said r?alJ,s. II SE!ction 1·· Section 2 provides-'!Tl\dt the lands hereby grafitedto 1JaWstateshall be dispOsed of by;the leglslaturethereof for the purpose aforesaid, and '. for no other. II SectiiQD ,5 providesIlThat 1Dhen the governor o!said state shall certify to the' secretary of the intetior"that ten continuous 'miles of said road are completed, then a quan,U,t'l'uj'rtke'land hereby granted. not to exceed thirty sections. may be 801i:l: ml from time to time· until said road shall be completed. II The state of Oregon, by an act passed October 20, 1868, granted so granted to the state, to >the Dalles Military Road Company., uponth6 same conditions as in the grant to the state, the act of congress being recited verbatim, in fun, in the preamble to the act of the state. Thegninttothe state, by the words" there be and hereby is granted to the state of Oregon,." was a grant, in prl£8enti, passing a present title to the state,to be defeated only by breach of conditions subsequent, as has been repeatedly held by the supreme court of the United States. Schul,.. enbergvdlarriman,21 Wall. 44; Leavenworth, L. JeG.R. Ca. v. U. S., 92 U. S.741;Missouri, K. JeT.R.Ca.v. Kansas Pac. Ry.(]e. , 97U.S. 491; Wright v. R08eberry, 121 U. S. 500,7 Sup. Ct. Rep. 985; Van Wyck v. Kneva18, 106 U. S. 360, 1 Rep. 336; RailroadCb. v. Orton,G Sawy. 198; Ftancoeur v. Newhouse, 40 Fed. Rep. GI8.The state act in like ·ternlS passed the present title subject only to be defeated by breach of cODdition subsequent, to the Dalles Military Wagon Road Company. The act of congress, also, dtlsignated the pa.rty, officer, or tribunal that should finally determine the question of fact, whether the road had been c6l'llpleted in accordance with the provisions of the statutory grant. 'i'hirty sections were authorized to be sold, "when the governor of said stilte shall certify to the secretary of the interior, that any ten continuoUllmiles of said road are completed, and so on from time to time, until 'said road is completed." None appears to have been sold until the 'whole road was certified by'the governor of Ol'egon, who alone was des-
UNITED STATli:S .,. DALLES IlILITABY BOAD 00.
491
ignated and authorized by the act of congress to finally determine the matter, to have been fully completed in accordance with the requisites of the congressional grant. That the certificate was not made on completion of each section of 10 miles of the road can make no difference. It is sufficient that it was made at one time, covering the completion of the whole road. The making of the certificate, on the completion of each 10 miles, was authorized for the convenience, and benefit of the grantee, and not of the United States. The intent of the government was to obtain the completion of the whole road. And that being completed, its object was fully attained. The authority to determine whether the roa\l was completed was vested solely in the governor of Oregon. from whQ13e decision there was no appeal. He was the agent of the United States with full authority to determine the question. And his certificate of completion was to be the evidence, and the only evidence under the provisions of the statute, that the corporation haa fully performed its part of the contract. His decision therefore, in the absence of any such fraud as would vitiate it, is, necessarily, final, and conclusive; and the gpvernment is estopped from denying its finality. This principle was established in Reir.hart v. Felps, 6 Wall. 160, and U. S. v. SPfed, 8 Wall. 88. When a special tribunal is authorized to hear and determine certain rnatters arising in the course of its duties, its decisions within the scope of its authority are conclusive. Johnson v. TawBley, 13 Wall. 72. And the same principle has been announced in numerous cases since. The right to a patent once vested is eqUivalent, as respects the govermnent dealing with the public lands, tda patent issued. Stark v. Sta//'1's, 6 Wall. 402. Now in this case the acts of congress and of the state of Oregon. and the certificate of the governor are public records, and the certificate of the governor having been made that the road had been fully completed in all respects as required by the granting act. the title already vested by the grant in praJ8enti became perfected and indefeasible upon the record in the absence of any Buch fraud as would defeat it. The verified plea supported. by the answer. avers that the certificate was made without fraud. The plea is, therefore, sufficient, and must be sustained. ' The second plea in addition to the matter stated in the first, alleges that the defendants are bona fide purchasers from the Dalles Military Wagon Road Company, without notice of any fraud, or defect in the title, and, that, there can be no forfeiture as against them. In Iron Co. v. U. S.· a bill was filed to vacate several patents as having been obtained by fraud and perjury, in cases wherein there had, in fact. been no actual settlement, or improvement on the land, although the evidence showed that there had been, it was held that the defense of a bona fide purcbaser t without notice, is perfect. 123 U. S. 307, 8 Sup. Ct. Rep. 131. It waa also held, that, the burden of, satisfactorily, showing the fraud, is on the complainant. So, in U. S.v. Minor, 12 Sawy. 164, 29 Fed. Rep. 134, it was held, th!J,t, a purchaser of land. in good faith, for a valuable consideration, from a patentee of the United States, without notice, of nny fraull affecting the title, is entitled to rely upon the record; and that v.41F.no.9-32
patent, ifValic[;upon.iits fRce; will not be 'va:cated ::dehor8.the record of which he has 110 knowledge. Said the court :. "The patent. which .tIle final· record of the title, (Beard v.Federy, 3 Wall. ,.491, 492,) was regular'and valid on Its face; 'I'he proper department o( the government had: exoamined the case on the evidence presented; adjudged the 'right to be in Mitior,snd :issued the patent, aceording.ly, in due form. The CoUld by m,atterresting in paroldekwsthe record. to relY uPOJl. the Sawy.167,29 Innocent Fed. Rep. .. " , : .' . ,. r Ii
These :observationsare.equaUy- applicable to tbepresen't' easel The two statutes, one of the ;UIiited States, and the other of Oregon, .the' certificate oltha governor of Oiegon,madein pursuance ofthe' first named the issue of thepatenl:s upon the statute, the act of governor's certificate,ltSio the unplltented lands and these, together with thl;l withdrawal of the lands {tom sale' by the secretary and 'the patents so issued, as toaH the lands patented, 'constitute the record; land upon this :record purchasers were.entitled to rely. The claim thatpurchltSers could .not rely:tlpon this:record, but; that theymllstgoover the road, and, at their peril; ascertain, for themselves, whether it had beeh completed in all parts in pursuanoe of the:provisions oltha statutory preposterous. Therecordshowstlpon its face that all conditions have beanperforrnedj that this has been so adj'11dgedby:the officer 'authorized to determine the faut,and the correctness of.thisdeterIl1ination is redognized by congress '·:in 1llIhe act of 1874 directing patents to issue uponthe:certificatesj and onothat re<lord the parties were entitled to rely. '. While innocent purundisputed equitable principles,and :chasers are thus .authority, their rights, are,"also, expressly recognized and affirmed by the statote, itself, under .·wlaich thislsuit is brought, which.provides, that .the courts shall determiQe'thequestions,which they m'e authorized to consider in a manner "saving and preserving the rights of all bonafide purchasers of either of 'grants, or or any portion or: said grants, for a valuable consideration." "25 U. S. St. 85L Thus the statute itself, \recognizes the rights ofinnooent purchasers, if they had been otherwise doubtful. It is plain, therefore, that the second plea is sufficient, and must be sustained. ' . ,The .remaining question to be considered,and,the'only one presented, upon which there is any room for doubt,· is, whether <lorn plainatits should be-permitted to reply to the pleas, or whether the bill should be dis'missed? Upon the whole, after careful consideration, I think the bill should be dismissed.: I think it in the highest degreeprobabla that Buch .would be the final resultj'\Vhichever course is pursued. If· so, the ex.pense and annoyanceofa.long litigation would be ·fruitless. Thegovernor of Oregon, upon whom alone, was devolved the jurisdiction and ,duty to, finally, determine tbefactas to the completion of the road, made .his ,certificate ort Jun13 ,23, 1869;.and, thereby, furnished reoordeVidence of the. complete, and. proper performance, of all thecohditions {)f the statutory grant;and;, that, the title to the lands granted hadbeooime perfect, and :indefeasible.). He certifies, that, he makes the' oottificate after, and ,-,' ,
BTA-orES tI. :DALLEB MILITARY" !tOAD CO.
rl9.9
upon, a careful personal examination of the road, since its completion. Certainly, the public, and subsequent purchasers, were entitled to rely upon this carefql, positive certificate of the 'party authorized, chosen, and designated to determine and certify the fact of completion. Five years afterwards, on June 18, 1874, without any proceedings having been taken to declare a forfeiture of the grant for breach of conditions subsequent. and without any cOlnplaint appearing to have been made, that said certificate of the governor Was false, or that said road had not been fully completed, in particulars, as was required by the granting act, and, while the government must have been, all the time, using the road for its various purposes designated in the act,congress passed another "act to authorize the issuance of patents for lands granted to the state of Oregon in certain cases," wherein, after' reciting, that "certain lands have heretofore by acts of congress, been granted to the state of Oregon, to aid in the construction of certain military wagon roads in said state," it was provided"That in aU cases when the roads, in aid of the construction of which said lands weregrant.ed, .areshown by the certificate of the gO'DefflOr of the litate
of Oregon,. a, in said (Lcts pro'Dided, to ha'De been constructed anrl completed. patents fO,r lands shall is.me in due form to the state of Oregon. 88 fast 8S the same shall, under said grants be selected and certified, the state of Oregon by public act have tran.'<j'l:rred its itlterest.y in lattds, to any corporati&n, 0/' corporations, in which case the patents shall issuef1'om the generalland-oJfice to such corporation, or corporations, upon their pay-
mentof the necessary expenses thereof: Provided that this shall not be construed tQ rtlvive any land grant already expired, nor to create any new rights of llny kind, except to provide for isSUing, patents for lands to which the state St. 80. is already eiltitled." The statein this case had so transferred its interest to the Dalles Military Road Company. By this act, directed that patents shall issue, tl in aU cases," not,. when the roads have, actually, in fact, been c0mpleted asre<]'U!Wed by ww,-but tl in aU cases," when "the roads" * * * "are shown by the certificate of the governor of the state of Oregon as in said acls previded, to have, been constructed nndcompleted." Now, in this case, after waiting five after the certificate of completion, made upon al examinlJ,tion by" the governor, having all the means of ascertaining whether it was false or. true, congress, positively, in effect, affirmed its trvJh., by thiB provision of the act. It determined the fact 01 the formance of the conditions of the grant by directing in terms, patentl! to be issued uin all ClJ8e8" when the certificate had been issued. Thi8 provision is not permissive merely, but mandatory. The closing paragraph in the proviso would operate only upon any la.psed grant if any there was, by failure to compltJt.e in the required time, or when the work was not 811completed, and when no certificate had been issued, or when certificates for only a part had been made. Bat it, necessarily, recognizes, that, "in allCll.s6s" the certificate ofthe governor had been issued, the conditions have been performed, and the grantee has become entitled to a patent. The statute in effect, confirms, by legislative act, the judicial act in ascertaining and oortifying the completion of the work. I know of no case,where a legislative gmnt, or act, has been
vol. 41. ,investigated, and set aside, bythe courts, on the ground that Hspassage had been secured by imposition or fraud, upon the legislative body passing the law. In Tameling v. Emigration Co., 93 U. S. 644,it was held that the action' of congress confirming a private land claim in New Mexico· is not subject to judicial review. In the present case, the road must, necessarily, have been used by the government during these many years for those purposes, which were of so urgent a character, as to induce congress to make the grant in aid of its construction, or else the failure to oomplete it, in such manner, that it could be so used, must, inevitably, have 'come to the knowledge of the government and congress. With this knowledge, necessarily, had, the act of 1874, was deliberately passed. Congress exercised its discretion upon such information as it had, in requiring the issue of the patents upon these certificates of the .governor, and that is the end of the matter. It is a legislative recognition and affirmation of the certificate:ofthe governor of Bee, also, IJ,yan v. Carter, 93 U. S. 78. It seems to me, also, that the cause of suit ought to be regarded as stale, ,so as to render it inequitable, under the circumstances of the case, ·to 'prosecute it now within the established principles equity jurisprudence, Fifteen years elapsed after the affirmative and confirmatory actibn()f congress in directing, in mandatory language, the issue of the patent!!Jolands "in all cases" when the certificate of the governor had -been made, and 20 years after the date of the certificates now claimed to have been fraudulently issued, had elapsed before the passage of the act authorizing the bringing of this suit. It is a well-known historical fact familiar to every citizen of Oregon, that the governor himself who ,made the certificate in this case, and the governors, .who made them in the following case, are both dead, as well, doubtless, as many of the -other· parties to the transactions. At tbis day, i,t would ,doubtless,'be difficult to establish by sufficient affirmative testimony, any actual fraud, if any there was. Although statutes of limitations do not rl1nagainst the United States, and would not be available in an action at law, it -seems to me, that the case is a proper one for the application cif the principle that it would be inequitable to enforce a stale claim, and that a court of equity would not on that ground,now declare a forleiture. Had the land grant been made for the same purposes, and upon the ;slime conditions, by a private citizen,and the subsequent action both of the grantee and grantor been precisely the same as in this'case, there can belittle douht, I apprehend, that a court of equity, in view of all ,the circumstances would, at this late day, refuse to a forfeiture:, ,and to restore the lands to the grantor for breach of the conditions sub'-sequent, OIl the ground that it would be inequitable to enforce so stale a ,claim against parties who had subsequently purchased, in full view-of the affirmative public action, as well as the non-action of the grantor) and thereby had good reason to suppose, that all the conditions of :the grant -whether in fact well performed, or not,had been satisfactorilYllerformed. L130wman v. ,Wathen-,l How. 189; Piatt v.' Vattier, 9 Pet. 416; Badgerv. Badger, 2 _Wall; 93; SuUit'O,n.v;. Railroad Co., 94 U. S. 8ll;Clarke
of
UBITED STATES II. OREGON CENTRAL MILITARY ROAD CO.
501
v. Boorman's Ex'rs, 18 Wall. 509. Whatever is inequitable, as between man and man, in their dealings with each other, shoul.d, also, be deemed inequitable, as between the United States, and those with whom they condescend to deal, under like circumstances; and, I take it, that the same decree is proper in this case, that would have been proper, had a private party been the grantor, and had he by both his positive affirmative action, and his non-action, for so long a time. given purchasers from his grantee so good reason to believe, that he was fully satisfied with the performance of the conditions of the grant. In my judgment, all subsequent purchasers were entitled to rely, implicitly, upon the certificate of the governor, who was alone authorized to determine the fact of the completion of the road, and, especailly, after its confirn1ation by congress in the act, peremptorily requiring patents to issue in all cases where certificates had been, in fact, issued. If there were 8uspicious circumstances before the pa8sage of this act, which purchasers might caUed upon to notice,the paBBage of this act, as8ured them tJiat congres8 had informed itself of the action of the state, and its grantees under it, and was satisfied as.to· the fuU performance of the work, or,·at least, if it found any dejects or 8hortcomings, that they were waived,and the work accepted. Martin· purchased of the Dalles Company two years after the passage of the act of 1874, and was therefore, a subsequent purchaser. Subsequent purchasers, certainly, had a right to rely upon the action had from time to time by congress, and its agents duly authorized, and the public record of it so made. It is now estopped from alleging the non-fulfillment of the statutory conJitions of the grant. Let the bill be dismissed.
UNITED STATES '11. OREGON CENTRAL MILITARY ROAD Co.
(Circuit Court, D. Oregon. February 20,1890.) In Equity. L. L. McArthur, U. S. Atty" solicitor for complainant.. Jame8 K. and BelMngeT, MaUm"y & Simon, solicitors fOt'defendant. .; Before SAWYER, CIrcuit JudgEl. .SAWYER, J ·. This case, in nearly all respects, is similar to that just decided, U. S. v. Military Roda Go., ante,4\13. The principal ditrerence between the cases consists in the fact, that in this case, the certificates of the governor, of completiou, are made on the oompletion of each section of 50 miles, and the act authorized the sale of 30 sections of the land bcifore any work was done, and of 30 more upon the certificate of the gov·ernor. of the completion of each 10 milee of the road, till the whole should. be completed. The first that 50 miles had been completed, was made by Governor Gibbs, and the subsequent certificates, by Governor Woodil, who made the certificate in the o.ther case. So, also in this case, the goVernor is not oo.arge(l with. acting fraudulentliU in iSSUing the certificates, as·he was in the other. If this case, as is contended on this account, is brought within the decision of U. S. v. F£int, U. S. v. Th!rockmorton, and U. S. v. Carpenter, 4 Sawy. 42, and the same cases atll,rmed on appeal, 98 U. 68, it ·stands in str·onger position than the other, for in that view, since the officer to de-· termine the question was no participant in the fraud, his decision is conClusive, and ul\assailable even in equity. However, the may be, as applicabl" to this case, the pleas must be beld SUfficient; and the bill dismissed, for the reasons stated in the case .of U. S. v. Militai'li Boaa Go., and it is so ordered. . .. .
a