1. A finding of fraud in fact which is not clearly erroneous
will not be disturbed when concurred in by two federal courts
below. P.
273 U. S.
.223.
2. The Act of March 3, 1845, granting to the Florida "section
numbered 16 in every township or other land equivalent thereto" for
school purposes, was not self-executing in the indemnity provision,
but left the grant dependent, in that regard, upon future action of
Congress. P.
273 U. S.
224.
3. Assuming that, under the Act of 1845, there was an equitable
obligation in fulfillment of the grant to provide for selection of
mineral as well as nonmineral indemnity lands, yet the only actual
provision (Rev.Stats. §§ 2275 and 2276, as amended February 28,
1891) limits selection to land not mineral in character, and
consequently a certification of mineral land is unauthorized, and,
when procured upon false representation that the land is
nonmineral, is voidable at the suit of the United States. P.
273 U. S.
225.
3 F.2d 1019 affirmed.
Page 273 U. S. 221
Appeal from a decree of the circuit court of appeals which
affirmed a decree of the district court (298 F. 127) setting aside,
in part, a certification of indemnity school land in a suit by the
United States based on fraudulent representations.
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This was a bill in equity brought by the United States in the
District Court for the Southern District of Florida, by direction
of the Attorney General against the Charleston, South Carolina,
Mining & Manufacturing Company to have declared void the
approval and certification by the Secretary of the Interior and the
Commissioner of the General Land Office of 320 acres of the public
lands of the United States in Polk county, Florida, to the State of
Florida, title to which was transferred by mesne conveyances from
the state of Florida to defendant mining company. The bill averred
that the selection, approval, and certification had been procured
from the government land officials upon fraudulent representations
with reference to the nonmineral character of the land; the
representations having been made in an affidavit at the instance of
the defendant company and with its knowledge, for the purpose of
securing such conveyance to the state and through the state
authorities to the defendant.
Page 273 U. S. 222
The prayer was that the title or conveyance be held for naught
and be delivered up and surrendered for cancellation, that the
described lands be adjudged the property of the United States, that
the defendants be enjoined from setting up any claim thereto or
creating any cloud upon the title of the United States, and that
the possession might be restored to the United States. An answer
was filed by the defendant denying the averments of the bill, and
there was a full hearing upon evidence. The district court held
that the evidence of fraud was established in reference to 280 of
the 320 acres described in the bill, and as to that, the relief
prayed for was granted, but the bill was dismissed as to the
remaining 40 acres. 298 F. 127. On appeal of the defendant, the
Circuit Court of Appeals of the Fifth Circuit affirmed the decree
of the district court. 3 F.2d 1019. The case came to this Court on
appeal taken on February 7, 1925, under § 241 of the Judicial Code
as a suit to which the United States was a party, which was not
made final by the other provisions of the Judiciary Title.
The evidence for the government tended to show the following: in
1906, Singleton, acting for and in the employ of the appellant,
prospected for phosphate deposits in the vicinity of these lands.
He explored by making borings in a tract of 360 acres adjacent to
the one in suit, which on his recommendation was purchased by the
appellant for $40,000. The 280 acres here restored to the
government by the lower courts contained, according to borings and
tests made in 1910, phosphates which ran from 61 to 66.84 percent,
and it appeared that, at that time, phosphate at 60 percent could
be profitably mined. The land belonged to the United States.
Singleton's plan was to secure the 320 acres in question as
indemnity for school sections 16 conveyed by the United States to
Florida under the Act of March 3, 1845, c. 75, 5 Stat. 788.
Singleton arranged with one Stewart to induce the state
Page 273 U. S. 223
land agent, Hampton, to make the selection. Stewart, in turn,
procured on Hollingsworth to make an affidavit that the land was
nonmineral. Hollingsworth made a superficial inspection of the
lands in company with Singleton, but obtained no information
sufficient to disclose whether the lands contained phosphates or
not. Singleton knew that Hollingsworth was to make the affidavit
without any real knowledge as to the character of the lands, which,
so far as Singleton and defendant were concerned, made the
affidavit false. With this affidavit, and at the instance of the
defendant's agent, Hampton innocently applied to the United States
to make the selection and cause the lands to be certified to the
state as indemnity lands selected under statute.
There was a conflict of evidence, but the district court found
the facts as above, and that the defendant was guilty of fraud in
procuring a false affidavit upon which the selection and
certification of the lands were secured. The circuit court of
appeals sustained the finding of the lower court.
The rule is well established that this Court will not disturb a
finding of fact made by a district court in equity, concurred in by
the circuit court of appeals except in case of the clearest error.
United States v. State Investment Co., 264 U.
S. 206,
264 U. S. 211;
Brewer Oil Co. v. United States, 260 U. S.
77,
260 U. S. 86;
Bodkin v. Edwards, 255 U. S. 221,
255 U. S. 233;
National Bank of Athens v. Shackelford, 239 U. S.
81,
239 U. S. 82;
Wright-Blodgett Co. v. United States, 236 U.
S. 397,
236 U. S. 402;
Washington Securities Co. v. United States, 234 U. S.
76,
234 U. S. 78;
Texas & Pacific Co. v. Louisiana Railroad Commission,
232 U. S. 338,
232 U. S. 339;
Chicago Junction Railway Co. v. King, 222 U.
S. 222,
222 U. S. 234;
Page v. Rogers, 211 U. S. 575,
211 U. S. 577;
Dun v. Lumbermen's Credit Association, 209 U. S.
20,
209 U. S. 24.
We therefore are limited in this cause to the question of law
which is raised whether the indemnity selection
Page 273 U. S. 224
here made was valid even if it was for known mineral land. The
grant of March 3, 1845, to Florida read as follows:
"That, in consideration of the concessions made by the state of
Florida in respect to the public lands, there be granted to the
said state eight entire sections of land for the purpose of fixing
their seat of government; also, section number 16 in every
township, or other lands equivalent thereto, for the use of the
inhabitants of such township, for the support of public schools. .
. ."
It is said that this constitutes a binding compact between the
state and the United States which cannot be abrogated, and that the
state was entitled to every section 16, whether mineral or
agricultural, and that, in case of loss, the state had the specific
right to select from vacant lands of the United States in that
state other lands without reference to the character of the lands
so selected, whether mineral or otherwise.
The district judge expressed himself as impressed with this
argument, but said that he was bound by the decision of this Court
in
United States v. Sweet, 245 U.
S. 563, in which this Court held that, under § 6 of the
Utah Enabling Act of July 16, 1894, 28 Stat. 107, a grant of
section 16 in place for school purposes, in view of the settled
policy of Congress to dispose of mineral lands only under laws
specially including them, was not intended to embrace lands known
to be valuable for coal. It is urged that the district judge erred
in applying the
Sweet case to the case here, because the
decision of this Court in
Work v. Louisiana, 269 U.
S. 250, shows that the
Sweet case did not apply
to a construction of the Swamp Land Acts under grants made in 1849
and 1850, and that, if the act enacted then contained no exception
or reservation of mineral land, none was to be implied, since the
policy of withholding mineral lands from disposition, except under
law specially including them, was not then established.
Page 273 U. S. 225
It is to be observed that the case of
Work v. Louisiana
applied to a grant of swamp lands, and did not refer to indemnity
lands thereafter to be selected. The phrase in the original grant
of 1845 in this case, "or other lands equivalent thereto" was not
self-executing. It could not and did not confer on the beneficiary
of the grant the right to make indemnity selections, except as
Congress should provide for the exercise of that right.
The only authority conferred by Congress for selection and
certification of indemnity lands for a failure of the grant of a
school section No. 16, applicable to the Act of 1845, is found in §
2275 of the Revised Statutes, as amended by the Act of February 28,
1891, c. 384, 26 Stat. 796, and § 2276 of the Revised Statutes, as
amended by the same Act. These sections are as follows:
"Sec. 2275. Where settlements with a view to preemption or
homestead have been or shall hereafter be made before the survey of
the lands in the field which are found to have been made on
sections sixteen or thirty-six, those sections shall be subject to
the claims of such settlers, and if such sections, or either of
them, have been or shall be granted, reserved, or pledged for the
use of schools or colleges in the state or territory in which they
lie, other lands of equal acreage are hereby appropriated and
granted, and may be selected by said state or territory, in lieu of
such as may be thus taken by preemption of homestead settlers. And
other lands of equal acreage are also hereby appropriated and
granted, and may be selected by said state or territory where
sections sixteen or thirty-six are mineral land, or are included
within any Indian, military, or other reservation, or are otherwise
disposed of by the United States: Provided, where any state is
entitled to said sections sixteen and thirty-six, or where said
sections are reserved to any territory, notwithstanding the same
may be mineral land or embraced
Page 273 U. S. 226
within a military, Indian, or other reservation, the selection
of such lands in lieu thereof by said state or territory shall be a
waiver of its right to said sections. And other lands of equal
acreage are also hereby appropriated and granted, and may be
selected by said state or territory to compensate deficiencies for
school purposes, where sections sixteen or thirty-six are
fractional in quantity, or where one or both are wanting by reason
of the township being fractional, or from any natural cause
whatever."
"Section 2276. That the lands appropriated by the preceding
section shall be selected from any unappropriated, surveyed public
lands, not mineral in character, within the state or territory
where such losses or deficiencies of school sections occur, and
where the selections are to compensate for deficiencies of school
lands in fractional townships, such selections shall be made in
accordance with the following principles of adjustment, to-wit: for
each township, or fractional township, containing a greater
quantity of land than three-quarters of an entire township, one
section; for a fractional township, containing a greater quantity
of land than one-half, and not more than three-quarters of a
township, three-quarters of a section; for a fractional township,
containing a greater quantity of land than one-quarter, and not
more than one-half of a township, one-half section, and for a
fractional township, containing a greater quantity of land than one
entire section, and not more than one-quarter of a township,
one-quarter section of land: Provided, that the states or
territories which are, or shall be entitled to both the sixteenth
and thirty-sixth sections in place, shall have the right to select
double the amounts named, to compensate for deficiencies of school
land in fractional townships."
The lands here in question were selected by the state by lists
filed on February 12 and February 19, 1906, pursuant to these
sections, and the selections were supported by an affidavit that
the lands were not mineral in character. They were approved
December 11, 1907, and were certified to the state December 18,
1907, and were thereupon conveyed by the state to one who took
title for the appellant who had procured the selection and the
certification. These sections require that the indemnity lands to
be conveyed thereunder shall not be mineral in character. Only
Congress can convey title to the land of the United States, and it
makes no difference what was its equitable obligation to convey
title under the original grant of 1845 in respect of indemnity
lands. Congress certainly intended to convey as indemnity lands
only those described in the act of 1891. There was no power in
anyone representing the United States, therefore, to convey
indemnity land which was mineral in character, and any scheme by
which conveyance of such land was obtained was a fraud upon the
United States.
The decree of the circuit court of appeals is
Affirmed.