# Petition for a Writ of Certiorari — Depaoli v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34086415_1986%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1944 - **Citation:** 321 U.S. 796 ## Text == a 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34086415_1986%3A1. Public record. Not legal advice.