A suit under the Act of February 25, 1885, 23 Stat. 321, c. 149,
to prevent the unlawful occupancy of public lands, is a summary
proceeding in the nature of a suit in equity, which may be tried by
the court without the intervention of a jury, and is not governed
by Rev.Stat. § 649.
The provisions of the said act of 1885 do not operate upon
persons who have taken possession of land under a
bona
fide claim or color of title. Color of title exists wherever
there is a reasonable doubt regarding the validity of an apparent
title, whether such doubt arises from the circumstances under which
the land is held, the identity of the land conveyed, or the
construction of the instrument under which the party in possession
claims title.
On the facts in this case, as detailed in the opinion of the
Court,
infra, pp.
148 U. S. 305-307,
held:
(1) That the lands in question were not public lands of the
United States within the meaning of that term as used in the acts
of Congress respecting the disposition of public lands.
(2) That the defendant held them under claim or color of title,
under an expediente of the Mexican government.
(3) That in thus holding, the Court intimates no opinion as to
the validity of the defendant's title.
This case was originally instituted by the filing of a complaint
by the United States in the District Court of the First Judicial
District of the Territory of Arizona to compel the removal by the
defendant, Cameron, of a wire fence, by which it was alleged he had
enclosed about 800 acres of public lands
"without any title or claim or color of title acquired in good
faith thereto, and without having first made application to acquire
title thereto, or any part thereof, according to law."
The proceeding was taken under an Act of Congress of February
25, 1885, 23 Stat. 321, c. 149, to prevent the unlawful occupancy
of public lands. The first section of the act reads as follows:
"All enclosures of any public lands in any state or Territory of
the United States heretofore or to be hereafter
Page 148 U. S. 302
made, erected, or constructed by any person, . . . to any of
which land included within the enclosure the person . . . making or
controlling the enclosure had no claim or color of title made or
acquired in good faith, or an asserted right thereto by or under
claim, made in good faith, with a view to entry thereof at the
proper land office under the general laws of the United States at
the time any such enclosure as or shall be made, are hereby
declared to be unlawful, and the maintenance, erection,
construction, or control of any such enclosure is hereby forbidden
and prohibited, and the assertion of a right to the exclusive use
or occupancy of any part of the public lands of the United States
in any state or any of the territories of the United States without
claim, color of title, or asserted right, as above specified, as to
enclosure is likewise declared unlawful, and hereby
prohibited."
In his answer, the defendant denied in general terms the
allegations of the complaint, and in an amendment thereto set up a
Mexican grant of May 15, 1825, to one Romero and other citizens of
Santa Cruz; the death of Romero in 1873; the purchase by Alfred A.
Green of the interest of his heirs in the grant; the sale by Green
to one Rollin R. Richardson of an undivided nine-tenths of Green's
interest upon certain terms and conditions expressed in the
contract; the entry by Richardson upon the land, claiming the right
to the possession thereof; the sale by Richardson to the defendant,
Cameron, of all his interest in the land, and the assignment of his
contract with Green, whereby the defendant became the equitable
owner of the said undivided nine-tenths interest, and "is in the
possession thereof, and entitled to be in possession thereof." The
answer further averred that an application was then pending before
Congress for the confirmation of this grant; that the same had been
examined by the Surveyor General of Arizona, who had reported it to
be a valid grant and recommended that it be confirmed to the
representatives of Romero and his associates to the extent of four
square leagues, but defendant claimed that it should be confirmed
to the exterior boundaries thereof as set forth and described in
the original
Page 148 U. S. 303
expediente. Upon the trial, the court found the issues in favor
of the United States, decreed the enclosure to be of public lands,
and therefore unlawful, and rendered a special judgment in the
terms of the act that the fence be removed by the defendant within
five days, and, in default of his so doing, that the same be
destroyed by the United States marshal.
Defendant thereupon appealed to the supreme court of the
territory, by which the judgment was affirmed. Defendant was then
allowed an appeal to this Court.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This case was originally dismissed upon the ground that the
question at issue between the parties being the fact whether
defendant had claim or color of title to the lands in question,
acquired in good faith, there was no evidence of the value of such
claim or color of title, even if the same were capable of pecuniary
estimation, of which the Court expressed a doubt. 146 U.S.
146 U. S. 533.
The case was subsequently reinstated upon it being made to
appear that the enclosed tract contained 1,200 acres; that
defendant had been engaged since 1883 in the business of grazing
cattle upon this grant and the lands adjacent thereto; that his
fence enclosed and controlled the only unappropriated water in a
section of grazing country embracing not less than 100 square
miles; that without such fence, the use and control of the enclosed
land and water would be of no use to him; that if he had not the
ability to maintain the fence, the land and water would be at once
seized and appropriated by other persons and defendant's cattle
driven and kept away; that he would be unable to conduct his cattle
business in this section;
Page 148 U. S. 304
and that the possession, use, and occupation of such enclosure
exceeds the value of $10,000. These facts make a wholly different
showing, and the case is therefore properly before us on its
merits.
1. A preliminary objection is made by the appellee to the
consideration of the case upon the ground that the proceeding is in
the nature of a common law action; that it was tried without the
intervention of a jury, and without a stipulation waiving a trial
by jury; that the Supreme Court of Arizona could not properly
consider any of the matters raised by the bill of exceptions, nor
can this Court do so; that all the supreme court could do was to
affirm the judgment of the district court, and that all this Court
can do is to affirm the judgment of the Supreme Court of Arizona.
By section 2 of the Act of February 25, 1885, under which this
prosecution was commenced, the district attorney was given
authority
"to institute a civil suit in the proper . . . territorial
district court in the name of the United States, and against the
parties named or described who shall be in charge of or controlling
the enclosure complained of as defendants, and jurisdiction is also
hereby conferred on any . . . territorial district court having
jurisdiction over the locality where the land enclosed, or any part
thereof, shall be situated, to hear and determine proceedings in
equity, by writ of injunction, to restrain violations of the
provisions of this act. . . . In any case, if the enclosure shall
be found to be unlawful, the court shall make the proper order,
judgment, or decree for the destruction of the enclosure in a
summary way unless the enclosure shall be removed by the defendant
within five days after the order of the court."
It is a sufficient answer to this objection of the government to
say that this is not a common law action, but a summary proceeding,
more in the nature of a suit in equity, and that the decree
provided by the act for the abatement of the enclosure is unknown
to an action at common law as administered in this country.
Proceedings by
assize of nuisance and by writ
quod
permittat prosternere have been abolished by statute in
England, and are now obsolete, if ever used, in this country.
Page 148 U. S. 305
3 Bl.Comm. 221. In cases like the present, the only common law
remedy available to the United States would be an action of
ejectment or trespass to oust the intruders. The proceeding
contemplated by this act is more nearly analogous to the summary
remedies provided for the enforcement of mechanics' liens,
considered by this Court in
Idaho & Oregon Land Co. v.
Bradbury, 132 U. S. 509, or
the special proceedings under the territorial statutes of Utah
discussed in
Stringfellow v. Cain, 99 U. S.
610;
Cannon v. Pratt, 99 U. S.
619;
Neslin v. Wells, 104 U.
S. 428;
Gray v. Howe, 108 U. S.
12, and in
Ely v. New Mexico &c. Railroad
Co., 129 U. S. 291,
appealed from the Supreme Court of Arizona. In these cases, the
validity of special statutory proceedings of this description was
sustained, and in
Hecht v. Boughton, 105 U.
S. 235, it was held that, under the Act of April 7,
1874, 18 Stat. 27, c. 80, an appeal was the only proceeding by
which this Court could review the judgment or decree of a
territorial court in a case where there was not a trial by
jury.
The practice pursued in this case conformed to the territorial
statutes of Arizona, which provide for a waiver by oral consent in
open court of a trial by jury in actions arising upon contract,
and, with the assent of the court, in other cases. The case is not
governed by section 649 of the Revised Statutes.
2. The act of Congress which forms the basis of this proceeding
was passed in view of a practice which had become common in the
western territories of enclosing large areas of lands of the United
States by associations of cattle raisers, who were mere
trespassers, without shadow of title to such lands, and surrounding
them by barbed wire fences, by which persons desiring to become
settlers upon such lands were driven or frightened away, in some
cases by threats or violence. The law was, however, never intended
to operate upon persons who had taken possession under a
bona
fide claim or color of title; nor was it intended that, in a
proceeding to abate a fence erected in good faith, the legal
validity of the defendant's title to the land should be put in
issue. It is a sufficient defense to such a proceeding to show that
the lands enclosed were not public lands of the United States, or
that defendant had claim
Page 148 U. S. 306
or color of title, made or acquired in good faith, or an
asserted right thereto by or under claim made in good faith, with a
view to entry thereof at the proper land office under the general
laws of the United States. As the question whether the lands
enclosed by the defendant in this case were public lands of the
United States depends upon the question whether he had claim or
color of title to them, the two questions may be properly
considered together.
Defendant justified under an expediente of the Mexican
government which appears to have been obtained in the following
manner: on July 19, 1821, Don Manuel Bustillo applied to the
governor intendente of Sonora and Sinaloa to purchase at auction
four square leagues of land for the raising of stock at the placed
named "De la Zanja,"
"three square leagues of land [
tres sitios de tierra]
in the same presidio in which I reside, and outside of the
boundaries thereof, and on the side of the north, and one square
more [
un sitio mas] for an '
estancia' in the
place of the '
cajoncito' on the side of the east,"
and prayed for a measurement of the lands by the proper officers
and for a valuation of the same. Upon this petition, the intendente
ordered a measurement of the lands, summoning the adjacent
landowners, and appointing appraisers for the valuation of the
land, publication to be made for thirty days for the purpose of
soliciting bidders. The measurements were made (the details of
which are fully set forth) from a central point, named "San
Rafael," two leagues in each direction,
i.e. to the four
points of the compass, and monuments were put up on the four
corners of the square as well as in the center of the four exterior
lines. All these monuments were placed at the time the lands were
measured under the authority of the government. The monuments
included four leagues square, or sixteen square leagues.
Upon the completion of this survey, the lands were valued at $60
each for the three square leagues, for the reason that they
contained permanent water, and the remaining square league at $30,
for the reason that it contained no water except such as was
furnished by wells. The land was thereupon put up at auction and,
after some spirited bidding between Bustillo
Page 148 U. S. 307
and Romero, was struck off to the latter at $1,200, and the
grant made to him by the proper officer in the name of the Mexican
Republic, in which the land is described as four square leagues for
the raising of cattle (
cuatro sitios de tierra para cria de
ganado mayor) included in the place called "San Rafael de la
Zanja," situated in the jurisdiction of the Presidio of Santa Cruz,
to Don Ramon Romero and other citizens (
vecinos)
interested. The grantees were also required to confine themselves
within their respective limits, "which are to be designated by
monuments of lime and stone" (
mojoneras de cal y canto),
and were guaranteed the free enjoyment and quiet and peaceful
possession of said lands.
A petition to the Surveyor General of the Territory of Arizona
was filed February 28, 1880, by the heirs of Romero for the
confirmation of this grant under an Act of Congress of July 22,
1854, 10 Stat. 308, c. 103, as marked by the survey and monuments.
See also Act of July 15, 1870, 16 Stat. 291, 304, c. 292.
The surveyor general reported that the grant should be confirmed to
the extent of four square leagues and no more.
The court found that the fence maintained by the defendant was
within the exterior boundaries of the grant as said boundaries were
recited as measured in the expediente, and outside the four square
leagues measured by the surveyor general; that the defendant had
succeeded to all the rights of Romero in the grant, and was and had
been in possession of all the buildings on the four square leagues
surveyed by the surveyor general, and claimed, and had always
claimed, title to the possession of all the land within the
exterior boundaries as measured in the expediente, claiming title
thereto;
"that the report of the said surveyor general upon said grant
has never been finally acted upon by Congress, and that said claim
and said report are still pending before Congress."
Upon proof of the foregoing facts, we think it clear that
defendant established a color of title to the lands in question. In
Wright v.
Mattison, 18 How. 50,
59 U. S. 56, it
was said by Mr. Justice Daniel:
"The courts have concurred, it is believed, without an
exception, in defining 'color of title' to be that
Page 148 U. S. 308
which in appearance is title, but which in reality is no title.
They have equally concurred in attaching no exclusive or peculiar
character or importance to the ground of the invalidity of an
apparent or colorable title. The inquiry with them has been whether
there was an apparent or colorable title under which an entry or a
claim has been made in good faith. . . . A claim to property under
a conveyance, however inadequate to carry the true title to such
property and however incompetent might have been the power of the
grantor in such conveyance to pass a title to the subject thereof,
yet a claim asserted under the provisions of such a deed is
strictly a claim under color of title."
In that case, a tax deed was held to convey a colorable title.
And in Gregg v. Sayre, 8 Pet. 244, a deed purporting to convey a
title in fee, which was fraudulent as to the grantor, but which the
grantee had accepted in good faith, was held to have the same
effect. In
Bryan v.
Forsythe, 19 How. 334, it was held that under an
act of Congress making a general grant of land to the inhabitants
of a village, when the survey was made and approved by which the
limits of the lot were designated, the title was such as to sustain
an action of ejectment even before a patent was issued. To the same
effect are
Pillow v.
Roberts, 13 How. 472;
Meehan v.
Forsyth, 24 How. 175;
Gregg v.
Forsyth, 24 How. 179;
Hall v. Law,
102 U. S. 461;
Deffeback v. Hawke, 115 U. S. 392,
115 U. S.
407.
It is true there are cases to the effect that color of title by
deed cannot exist as to lands beyond what the deed purports to
convey; but where the deed is fairly open to construction as to
what it does purport to convey, and at the time it was executed the
land was officially surveyed according to the theory of the party
claiming under such deed, it is manifest these authorities have no
application. Color of title exists wherever there is a reasonable
doubt regarding the validity of an apparent title, whether such
doubt arises from the circumstances under which the land is held,
the identity of the land conveyed, or the construction of the
instrument under which the party in possession claims his
title.
While a grant of four square leagues of land in the place
Page 148 U. S. 309
called "San Rafael de la Zanja," standing alone, would appear to
have been a grant of a certain quantity of land, when it appears by
the same instrument that the limits of the grant were to be
designated by monuments of lime and stone, that such designation
was actually made, and that juridical possession of the land was
delivered in pursuance thereof, it is at least open to doubt
whether it does not fall within the class of concessions by
specific boundaries, as these grants are distinguished in
United States v. McLaughlin, 127 U.
S. 428. Under the view taken by the court below, that
the grant was of only four square leagues of land, it was evidently
a mere float, and defendant would have no color of title to any
specific land until the same was designated, and would have no
authority to maintain a fence around any part of the tract. In the
case of
Fremont v. United
States, 17 How. 542, a grant of a tract of land
known as "Mariposas," to the extent of ten square leagues within
the limits of the Sierra Nevada and certain rivers, was held to
convey a present and immediate interest to so much land to be
afterwards laid off by official authority. As no survey in that
case was made, it was held to be a grant of quantity only. The same
ruling was made with regard to the Moquelamos grant, which was
described as "bounded on the east by the adjacent sierra."
United States v. McLaughlin, 127 U.
S. 428.
See also United States v.
Armijo, 5 Wall. 444;
Higueras
v. United States, 5 Wall. 827;
Alviso v.
United States, 8 Wall. 337;
Hornsby v.
United States, 10 Wall. 224.
It is evident that the lands in question were not public lands
of the United States within the meaning of that term as used in the
acts of Congress respecting the disposition of public lands. As
early as 1839 it was held by this Court in
Wilcox v.
Jackson, 13 Pet. 498, that whenever a tract of land
had once been legally appropriated to any purpose, it became from
that moment severed from the mass of public lands. In that case,
there was a reservation of lands for a military post for an Indian
agency and for the erection of a lighthouse, and it was held that
the lands so reserved were not subject to entry at the land office.
So in
Leavenworth, Lawrence
&c.
Page 148 U. S. 310
Railway v. United States, 92 U. S.
733, the doctrine of the former case was reaffirmed and
held to apply to Indian reservations. And in
Newhall v.
Sanger, 92 U. S. 761, lands
within the boundaries of an alleged Mexican or Spanish grant, which
were
sub judice at the time the Secretary of the Interior
ordered a withdrawal of the lands along the road of a certain
railroad, were held not to be embraced in a grant to the company.
Speaking of such claims, it was said by Mr. Justice Davis
"that claims, whether grounded upon an inchoate or a perfected
title, were to be ascertained and adequately protected. This duty,
enjoined by a sense of natural justice and by treaty obligations,
could only be discharged by prohibiting intrusion upon the claimed
lands until the opportunity was afforded the parties in interest
for a judicial hearing and determination. It was to be expected
that unfounded and fraudulent claims would be presented for
confirmation. There was, in the opinion of Congress, no mode of
separating them from those which were valid without investigation
by a competent tribunal, and our legislation was so shaped that no
title could be initiated under the laws of the United States to
lands covered by a Mexican or Spanish claim until it was barred by
lapse of time or rejected."
It was urged in that case that the reservation could only be of
lands "lawfully" claimed, but it was said expressly that there was
no authority to import the word "lawful" into the statute in order
to change its meaning, and that the act in question expressly
excluded from preemption and sale all lands covered by any foreign
grant or title. In
Doolan v. Carr, 125 U.
S. 618, it was held that if the grant was of a specific
quantity within designated outboundaries containing a greater area,
only so much land within the outboundaries as was necessary to
cover the specific quantity granted was excluded from the grant to
the railroad companies. Indeed, the cases in which these rules have
been applied to lands reserved for any purpose whatever are too
numerous even to require citation. In this case, there is an
express finding that the report of the surveyor general, limiting
the grant to four square leagues, has never been finally acted upon
by Congress, and that the claim
Page 148 U. S. 311
and report are still pending before Congress -- in other words,
that the claim is
sub judice.
It is true that in the Act of July 22, 1854, 10 Stat. 308, c.
103, establishing the office of Surveyor General for New Mexico
(then including Arizona), there is a provision, which is omitted in
the Act of July 11, 1870, 16 Stat. 230, c. 246, establishing the
same office for Arizona, that
"until the final action of Congress on such claims, all lands
covered thereby shall be reserved from sale or other disposal by
the government, and shall not be subject to the donations granted
by the previous provisions of this act,"
but as the sundry civil appropriation act of that year, 16 Stat.
304, provides that the Surveyor General of Arizona shall have all
the powers and perform all the duties enjoined upon the Surveyor
General of New Mexico, there could have been no intention to change
the settled policy of the government in this particular.
We do not wish to be understood as intimating an opinion as to
the validity of defendant's title. There is an apparent discrepancy
between the terms of the grant and the survey that was made in
pursuance of it which may perhaps be susceptible of
elucidation.
But we think that defendant has shown color of title to the land
enclosed, and
The judgment of the Supreme Court of Arizona must therefore
be reversed, and the case be remanded, with directions to dismiss
the petition.
MR. CHIEF JUSTICE FULLER dissented from the opinion and
judgemnt.