Petition for a Writ of Certiorari — Depaoli v. United States

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SUBJECT INDEX

Page

orition for Writ of Certiorari |

Summary Statement of Matter Divolved |

Basis of Jurisdiction of United States

Supreme Court ‘

(i estrons Presented o

Reasous Relied on for the Allowance of the Writ sf

Praver for Tssnance of Writ 13

Brief in Support of Petition for Writ of Certiorari:

Statutory Provisions to Sustain Jurisdiction

Opinions Below

Statement of Facts

Specification of Errors

Argument

Facts presented create property right in

petitioners

Mquitable principles must be applied in cancelling

petitioner's contraet of purchase

act that United States is vendor presents no

adequate reason for refusing to apply equitable

prineiples eacepecskuynaan ect

Action of Secretary of the Interior in arbitrarily

cancelling contract unauthorized under statute

involved —

Appendix A...

Appendix B

lo

21

TABLE OF CASES CITED

CASES

Bishop Vs. Stewart, 13 Nev. 25

Campbell vs. U.S.. 107 U.S. 407_.

Causey vs. UL S., 240 U.S. 399, 402. _

Chotard vs. Pope, 12 Wheat. (U. S.) O86

Clark vs. London Assur. Cor., 44 Nev. 359:

19) Pae. S09

Denny vs. Dodson, 32 Fed. S99_.

First Federal Trust Co. vs. First National Bank

299 Ped. 353 at 357 (C. CA. 9, from Nev.)...........

Furness, Withy & Co. Ltd. v. Yang-Tsze Ins. Asso.

Ltd., 242 U.S. 430

Hastings & Dakota Railroad Company, The, vs.

Whitney, 132 U. 8. 367... RE Sen ae

Ileeckman vs. U.S. 224 U.S. 413, 446

Irvine vs. Hawkins, 20 Nev. 384

Lake vs. Lewis, 16 Nev. 94

Michigan Land and Lumber Company vs. Rust,

168 UL S. 589.

Mosso vs. Lee, 53 Nev. 175, 295 Pae. 776

Orchard vs. Alexander, 157 U.S. > a. ee

Dy Oot

ri

o=l

Paves

Pan American Petroleum Company vs. United States,

2713 U. &. 456, GO6.....:........... fais RIL ap NERD Ce anh ae

Reading Steel Casting Company vs. United States,

Se Mies tace i ey ee os 10, 25

Sanford vs. Sanford, 139 U. S. 642, 647.000... 30

more ve. Been, 220 VU, B. G41...

U.S. vs. Budd, 483 Fed. 630, 144 U.S. 154..0000002~2~O 26

Uo S.vs. Detroit Lumber Company, 200 U.S. 321,

are rte EAE Seer Lar Ranta Rs OO SR Se hh, 33

U.S. vs. Northern Pac. Ry. Co., 204 Fed. 485........10, 22

U.S.vs. Trinidad Coal Company, 137 U.S. 160, 170.10, 23

United States vs. Garaventa Land and Livestock

(Company, 129 Fed. (2nd) 416.0000. 7, 10, 11, 19

United States vs. George, 228 U.S. 14.0000. 50

United States vs. Stinson, 197 U. S. 200, 204.0. 11, 23

Uuited States Harness Company vs. Graham,

SN I cece 2 cy 11, 28

Walker vs. MeLoud, 204 U. S. 302... SeFEaN 11, 28

Whitney vs. Taylor, 158 U. S. 85.00.0000. 9, 23

Williamson vs. U. S., 207 U. S. 425.0000. 30

Witherspoon vs. Dunean, 71 U.S. 210 (4 Wall. 210)..9, 21

TEXT CITED

Pomeroy’s Equity Jurisprudence (5th Ed.),

CO. A, UI Unis eccnccstcct enc, pe tO! 11, 28

The Supreme Court

OF THE

United States

Ocropern Tenm, A. D. 19438

(

M. P. Depaour and Lexa Depaons,

his wife,

|

|

Petitioners, |

|

|

Vs.

Unxirep States or AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

to the United States Circuit Court of Appeals for

the Ninth Circuit

To The ILonorable the Chief Justiee and

Associate Justices of the Supreme Court

of the United States:

SUMMARY STATEMENT OF MATTER

INVOLVED

This action was filed in the District Court of the

United States for the District of Nevada on the 4th

day of February, 1938, for the recovery of the posses-

sion of certain real property situated, located and being

in Washoe County, Nevada, said real property being

more particularly described as follows, to-wit:

Township 21 north, range 24 east. M. D. M. Ne-

vada, Section 22, Lots 7 and 8: Section 27. Lots

1, 2, 3, 6, 7, 10, 11, 12, 13 and 14 containine 415.25

acres (RR. 2).

For approximately seventy-seven years prior to the

institution of this action and since the vear 1861, the

above-described real property has been in the exclusive

und undivided possession of petitioners and their graut-

ors and predecessors in interest (R.232): that during

said period of time and since the year 1861, petitioners,

their grantors and immediate predecessors in interest

in the occupation of said real property have tilled, cul-

tivated and irrigated the same and have broken and

cleared the same from uncultivated, raw land: that dur-

ing said period of time said petitioners, their grantors

and predecessors in interest have improved the same

for farming purposes and have constructed buildings,

fences, ditches and dams thereon and used in connec-

tion therewith; that crops have been produced thereon

by said petitioners, their erantors and predecessors in

interest each and every year since the year 1864

(Rt. 252); that in connection therewith said petitioners,

their grautors and predecessors in interest have been

granted by judicial determination various water rights

predicated upon the real property in question, which

said water rights have been recognized by the United

States District Court for the District of Nevada in an

action wherein respondent herein was a party litigant

(R. 241); that said real property forming the subject

matter of this action is adjacent to patented land owned

by petitioners in fee simple, whieh said patented land,

together with the land forming the subject matter of

this action has been operated for many years last past

as a single ranching unit (R. 237).

That at the time said real property forming the sub-

ject natter of this action was settled upon and in the

year IS61 the public surveys had not been extended to

elude said lands and the same were open and unsur-

veyed (R.252); that subsequent to the settlement of

the real property in question and on March 23, 1874,

hy executive order there was established what is known

as the Pyramid Lake Indian Reservation (R. 236); that

prior to the establishment of said Pyramid Lake Indian

lteservation and in the vear 1865 the exterior boun-

daries thereof were established by survey, which survey

included the real property herein referred to; that

thereafter and on May 13, 1865, the Department of the

Interior directed that the southerly boundary of said

reservation as so surveyed be moved to a point ten

miles north of that fixed by said survey so as to ex-

clude the real property herein referred to (R. 236);

subsequently and on August 17, 1865, said order was

revoked; that notwithstanding the fact that the real

property in question is included within the exterior

boundaries of said Pyramid Lake Indian Reservation,

the same has never been occupied, used or improved

hy the Pinte Indians, for whom said reservation was

created, which said Indians have never been in pos-

session of the same (R. 237); that said real property

is about twenty miles distant from the nearest portion

of said reservation oeeupied by said Indians (R. 238).

That no effort was made to remove petitioners o1

their predecessors in interest from said real property

prior to the vear 1909; that in the year 1916 actions for

ejectment were instituted in the District Court of the

United States for the District of Nevada against peti

tioners herein, which said actions were postponed at the

request of the Department of the Interior; that there-

after and on June 7, 1924, the Congress of the United

States passed an act entitled **An Act for the Reliet

of Settlers and Townsite Occupants of Certain Lands

in the Pyramid Lake Indian Reservation, Nevada,’ be-

ine Chapter 311, Publie Laws of the United States (48

Stats. 596, Chapter 311); that a copy of said act is ap-

pended hereto and forms Appendix A attached to peti-

tioners’ brief in support of this petition; that said act

was designed not only for the relief of petitioners here-

in, but also for the relief of various other white settlers

similarly situated (R. 237).

That said act of June 7, 1924, provided, among other

things, as follows: It authorized the Secretary of the

Interior ‘*to sell to settlers or their transferees ***. All

sales ***

shall be made through the local Land Office .

within ninety days after the price of the land shall have

*-*

heen fixed Provided further, that said sales shall

he by private cash entry ***. Provided that where entry

is not made within the time specified, the United States

shall enter upon the premises and take possession

thereof for the use and benefit of the Piute Indians of

the Pyramid Lake Indian Reservation’’ (R. 226).

That thereafter and in Mareh of 1925 che Secretary

of the Interior promulgated certain regulations regard-

»

~ the **terms, conditions, and price per acre’* and the

fine of payment therefor, Said regulations were modi

fied from time to time over a period of vears, whieh

sid modifications variously reduced the price per acre

and changed the time and manner of payment (R. 226).

That on Mareh 3, 1925, M. P. Depaoli, one of the

petitioners herein, as a qualified applicant under said

act and pursuant to said act made application to the

Department of the Interior to purchase the real prop-

erty herein referred to; that in June of 1925 said ap

plicant made a quarter-payment of $2,514.82 on the

total appraised price of the real property covered by

said application in the total sum of $6,068.03; that on

September 16, 1925, the General Land Office allowed

said application and retained said initial quarter-pay-

ment (R.239); that thereafter, by reason of economic

conditions and the pendeney of proposed legislation to

reduce the purchase price of the real property in ques-

tion, no additional payments were made by said appli-

cant and the General Land Office allowed the matter to

remain in status quo; that various arrangements for

payment and notices to pay were respectively made and

given over a period of years until March 10, 1936, at

which time the General Land Office notified said appli-

cant that the Seeretary of the Interior had ruled that

all interest due on the unpaid principal was required

to be paid within thirty days and that one-third of the

remaining principal was required to be paid within six

months and that failing this the application would be

cancelled without further notice (R. 240).

That said applicant failed to pay the interest as re-

6

quired and on May 13, 1936, the Secretary of the In-

terior ordered the cancellation of the application; that

thereafter and on August 11, 1936, said applicant, M.

P. Depaoli, paid the full balance of the purchase price

and interest to the Register of the United States Land

Office at Carson City, Nevada, which said final payment

and interest totaling $5,116.62 was duly and regularly

forwarded to the United States Land Office at Washing-

ton, D. (., and duly and regularly deposited with the

Treasurer of the United States; that said final pay-

ment was received and accepted by the Register and

Receiver of the Carson City Land Office in Carson City,

Nevada, and by the General Land Office at Washington,

D. (., and reported and deposited with the United

States Treasury by the Department of the Interior;

that said money was retained by respondent herein for

two vears and eight months without question; that more

than one year and two months after the filing of this

action, to-wit, on April 17, 1939, the return of said final

payment was tendered to said M. P. Depaoli, which

tender was refused and said payment returned to the

Federal Reserve Bank at San Francisco, California,

from whence the same had been sent (R. 227, 2438); that

no tender or offer to return the initial payment. of

$2,514.82 has ever been made by respondent to peti-

tioners; that said respondent still has in its possession

the full purchase price of said real property, together

with interest thereon totaling the sum of $7,631.44

(R. 243).

Upon the basis of the foregoing facts, ‘he District

Court of the United States for the District of Nevada,

(

iy which court the above-entitled matter was tried, de-

termined that an entry was made upon the real prop-

erty in question by M. P. Depaoli, one of the petitioners

herein, and that as a result of said entry a contract

arose as between said M. P. Depaoli and respondent

herein, Which said contract created the relationship of

vendor end vendee as between the parties thereto. The

said trial court further determined that said contract

was not subject to forfeiture under the circumstances

herein presented and that the same could only be ter-

minated pursuant to general equitable principles gov-

erning suits for cancellation of a conveyance or the

rescission of a contract (R. 246).

Upon appeal to the United States Cireuit Court of

Appeals for the Ninth Cireuit, said Court reversed the

judgment of the District Court of the United States for

the District of Nevada and determined the foregoing

legal principles adversely to petitioners herein upon

the basis of the decision in the ease of United States of

America vs. Garaventa Land and Livestock Co. (Ap-

pendix B) in which said last-named case Cireuit Judge

Healy dissented.

BASIS OF JURISDICTION OF UNITED STATES

SUPREME COURT

The jurisdiction of the United States Supreme Court

is invoked under Section 240A of the Judicial Code as

amended, 28 U. 8S. C. A. 347, and under the act of June

7, 1924, Chapter 311, 43 Stat. 596, 25 U. S. C. A., See-

tion 421 (note).

The judgment sought to be reviewed was entered

by the United States Circuit Court of Appeals for the

Ninth Cirenit) on the 9th day of December, 1948. Said

judement of said Cireuit Court of Appeals is to be

found in 139 Bed. (2nd) 225. Said judgment of said

Cirenit Court of Appeals reversed a judgment of the

United States Distriet Court for the District of Nevada

entered by said Distriet Court on the 11th day of Feb-

rnary, 1943, which said last-named judgment of said

District Court is to be found in 47 Fed. Supp. 68s

(R. 247).

QUESTIONS PRESENTED

The following questions are presented for considera-

tion upon this petition for writ of certiorari:

Kirst: Whether or not an ‘tentry’’ upon the real

property in question was made by M. P. Depaoli, one

of the petitioners herein, under the terms and provi-

sions of the aet of June 7, 1924, herein referred to, by

the application to purchase made by him, the payment

by him of the initial installment upon the purchase

price and the allowance of said application by the Gen-

eral Land Office.

Second: Whether or not the ‘‘entry’? made by said

M. P. Depaoli, one of the petitioners herein, in_ the

manner hereinabove set forth in the Summary State-

ment of Matter Involved created a property right.

Third: Whether or not the property right created

hy the ttentry’* under consideration is such a property

right as to be entitled to the protection of the provi-

sions of the Fifth Amendment to the Constitution of

the United States of America.

y

fourth: Whether or not a contract creating a vendor

aud vendee relationship between respondent and M. P.

Depaoli, one of the petitioners herein, arose as a result

of the making of the ‘entry’? herein referred to.

hitth: Whether or not respondent herein in seeking

io cancel petitioner’s contract of purchase is not bound

by general principles of equity ordinarily governing the

cancellation of a conveyance or rescission of a contract.

Sixth: Whether or not under the Act of June 7, 1924,

Chapter 311, 45 Stat. 596, 225 U.S. C. A., Section 421

(note), the Secretary of the Interior has the authority

to arbitrarily declare a forfeiture of petitioners’ rights

in the real property in question after having originally

promulgated rules and regulations under said act, none

of which contain provision for forfeiture.

REASONS RELIED ON FOR THE ALLOW-

ANCE OF THE WRIT

The decision of the Cirenuit Court of Appeals sought

to be reviewed hereby is erroneous and in conflict with

the principles of applicable decisions of this Court.

To the extent that said decision determines that peti-

lioners have aequired no equitable interest or property

rights in the real property in question, said decision is

in confliet with the decisions of this Court in the follow-

ing cases, among others: Chotard vs. Pope, 12 Wheat.

(ULS.) 586; WeMichael vs. Murphy, 197 U.S. 304: Stirr

rs. Beck, 133 U.S. 541; Whitney vs. Taylor, 158 U.S.

So: Witherspoon vs. Duncan, 71 U. S. 210 (4 Wall.

210); The Hastings d& Dakota Railroad Company vs.

Whitney, 132 U.S. 357; and is in confliet with the deei-

10

sions of other Cirenit Courts of Appeals on the same

matter in the following cases, among others: Dey vs,

Dodson, 32 Fed. 899; U.S. vs. Northern Pac, Ry. Co.,

204 Fed. 485: and McCune vs. Essig, 118 Fed. 273.

To the extent that said decision determines that no

contract exists as between the parties hereto, the can-

cellation of which is subject to general principles of

equity governing the cancellation of conveyances or the

rescission of contracts, said decision is in conflict with

the decisions of this Court in the following cases, among

others: Pan American Petroleum Company tvs. United

States, 273 U. S. 456, 506; U. S. vs. Detroit Lumber

Company, 200 U.S. 321, 339; United States vs. Stinson,

197 U. S. 200, 204; and Reading Steel Casting Company

rs. United States, 268 U. S. 186.

In this connection it will be noted that Cireuit Judge

Healy in his dissenting opinion in the case of United

States vs. Garaventa Land and Livestock Company, 129

Fed. 2d 416, upon which the decision ot the Circuit

Court of Appeals in this case is predicated, states as

follows:

“Equitable principles will not, of course, be ap-

plied to frustrate the purpose of a law of the

United States or to cireumvent public policy. Pan

Ameriean Company v. United States, 273 U.S. 406,

506; Causey v. United States, 240 U. 8S. 399, 402;

Heckman v. United States, 224 U. 8. 413, 446;

United States v. Trinidad Coal Company, 137 U.S.

160, 170. But it is well settled that general prin-

ciples of equity will ordinarily govern in suits by

the United States to seeure the cancellation of a

conveyance or the rescission of e eontract. Pan

American Company v. United States, supra, p. 506;

11

United States v. Detroit) Lumber Company, 200

U.S. 821, 389; United States v. Stinson, i97, U.S.

200, 204.""

To the extent that said decision determimes that a

forfeiture may be declared of petitioners’ rights in the

real property in question, said decision is in conflict

with applicable local decisions, among others, as fol-

lows: Mosso vs. Lee, 53 Nev. 175; 299 Pae. 776; Clark

re. London Assur. Cor., 44 Nev. 359; 195 Pae. 809; Lake

rs. Lewis, 16 Nev. 94; Bishop es. Stewart, 13 Nev. 20;

Irvine vs. Hawkins, 20 Nev. 384; First Federal Trust

Co. rs. First National Bank, 295 Fed. 303 at 357 (C. C.

A. 9, from Nevada); said decision is further in conflict

with general equitable principles, see Pomeroy’s Equity

Jurisprudence (5th Edition), Vol. 2, Section 445, page

301, et seq., and also said decision is in confliet with. the

Fifth Amendment to the Constitution of the United

States of America since to so hold amounts to a depri-

vation of property without due process of law; see

Walker vs. McCloud, 204 U. S. 302; and is also in con-

dict with the decisions of other Cireuit Courts of Ap-

peals on the same matter in the following case, among

others, United States Harness Company vs. Graham,

288 Fed. 929.

In this connection it will be noted that Cirenit Judge

Healy in his dissenting opinion in the aforesaid case of

Myited States vs. Garaventa Land and Livestock Com-

pany, Supra, states:

“On these faets it is conceded that as between an

ordinary vendor and vendee a forfeiture would not

he decreed in equity. Mosso v. Lee, 53 Nev. 176, 299

Pac. 776; Pomeroy’s Equity Jurisprudence (oth

Nd.), Vol. 2, .445, p. SOL et seq. The naked c¢ireum-

stance that the United States is the vendor is noi

an adequate reason for proceeding otherwise.

‘lam not able to see how the denial of the for-

feiture in the cireumstanees here would tend to

frustrate the policy of the law. The very purpose

of the special act was to make it possible for ap

pellees and others in like situation to acquire title

to the lands which they and their predecessors had

improved and had so long oceupied. Acceptance of

the tendered balanee with accrued interest in full

will make the vendor whole; and it is not claimed

that the Government would suffer prejudice in sueh

event beeause of the default on the basis of which

the forfeiture was declared.”’

In the interest of brevity (Rule 38, par. 2) Furness,

Withy & Co. Ltd. ve Yang-Tsze Ins, Asso, Ltd., 242

U.S. 430) petitioners do not at this time set forth all

of the points which will be urged upon argument on

the merits of this cause should the writ be granted, nor

all of the contentions in support of such points.

WHEREFORE, vour petitioners respectfully pray

that a writ of certiorari be issued out of and under the

seal of this honorable Court directed to the United

States Cirenit Court of Appeals for the Ninth Circuit,

commanding that Court to certify and to send to this

Court for its review and determination on a day certain

to be therein named a full and complete transcript of

the record and proceedings of said United States Cir-

cenit Court of Appeals for the Ninth Cireuit in that cer-

tain case numbered on its docket No. 10418, United

States of America, Appellant, vs. M. P. Depaoli and

Lena Depaoli, his wife, Appellees, and that the judgment

herein of the United States Cireuit Court of Appeals

coy the Ninth Cireuit be reversed by this honorable

Court and that your petitioners have such other and

further relief in the premises as to this honorable Court

may seem meet and just.

Winuiam M. Kearney,

Counsel for Petitioners.

Sipney W. Ropixson,

Of Counsel for Petitioners.