Reply Brief Petitioner — Stewart v. United States

“

-

IN THE

Supreme Court of the United States

Octosern Term, 1941,

—_—

No, 848,

—_—— __

. Many W. SteWant, et al., Petitioners.

v. £ “%

Usirep Staves or America, Respondent. —

. hier ee y

_ PETITIONERS’ REPLY BRIEF. _

ye sical

; . J. M. Mannon, Jr.,

\ A. Crawrorp Greene,

“ , * Atuan P. Marernew,

, Ropert L, Lirmax, -.

Attorneys for Petitioners, .

W. H. Spaviptya, oe aa

Tuomas E. Patmer,

-McCttcnen, Ounty, Mannon & GREENR,

Of Counsel.

» April 27, 1942.

(+ Press or Byron 8. Apsms, Wasninoton, D. 0, *

e

-

INDEX TO BRIEF.

Suspsecr Inpex.

Introductory..... Vea rere tee i aes

[. Stare Decisis. The‘ Court of ‘Appeals Was Not

Free to Disregard the Decision in the Irwin Case.. 2

II. The Statute of Jimitations RES IS Oe 5

I1l. Equitable Estoppel ....:..5.......cc:cccceccces, as

IV. The Findings of the Trial Court That the-Lands in

Suit Are Not a Part of Mare Island and Were Not

within the Casjro.Grant of the Confirmation De-

-eree Were Amply Supported by the Evidence and

» Should Have Bken Accepted by the Court of -Ap-

‘peals Ce ee i ie Poriucecocee 14

Conclusion Ce CC cCeeeseBoese 28 Pee eeeeeccs eleowesse teehee 16 .

4 aS oe APPENDIX.

The Grant to Castro Did Not Include the Lands in Suit

Nor Were They Embraced Within the Confirma-

tion Decree’......... Oia WP et ene Keiey icac ae

. -\ TABLE OF CASES AND AUTHORITIES CITED.

Cases Crrep. etn

Sea Ws ME Ce 8 hss ve bls bho or vices. 7311 *

Coronado Beach Co., United States vy. (1921), 255 U.S.

eee as bk on on’ rah Sadien bh ween aid f auae's hs ts 3

Cramer vy. Tinited States (1923); 261 U.S. 219 ....... 6° 8

Hussey v. United States’ (1911), 222 U. J See

Irwin, San Francisco Savings Union vy. (1886), 28 Fed.

Serre perl aay, 2, 3, 4, 8, 9, 10, 16

Irwin vy. San Francisco Savings Union (1890), 136 U. 8S.

ace PEEL OE MPEP! & Yer Mb e k wakbes y + ody dy 4, 8, 9, 10

‘Insular Government, Jover x) (1911), 221 U. 8. 623. oe

deems Bayou ely, Club ve United States (1923); 260 U.

; é ; jh 12,

Jover v. Insular Government. (1911), 221 U. 8. 623... .. 16

c

oie cae Index to-Brief Continued.

| pee bd - Page

Lee Wilson & Co. v. Unite ‘States (1917), 245 U.S. 24 12

Minnesota, United States ¥. (1926), 270 U. S. 181,208 4

Mulford, Ward v. (1867), $9 Cal, B65 6.25. coco ec ckei 17

O’Donnell, United States v. (1938), 303 U. S: 501,

: i a -3, 9,10, 18

Oste rhaus, Sawyer v. (1914), 212 Fed. 765......°...:. 4

- Roseberry, Wright v.. (1887), 121 U: S. 488 ....(..... 3, 4

San Francisco Savings Union vy. Irwin (1886), 28 Fed.

ee. POE Cee ee Peele a ee ‘2, 3, 4, 8, 9, 10; 16

San Francisco Savings Union, Irwin-v. “ (1890), 136 U.

De OW s 5 Hib e-Ghidi achieve ves aatte 3s 2, 3, 4, 8,9, 10

Sawyer y. Osterhaus (i914), 212 Fed, 765 ....... mek. ie

| Leschemacher-v. Thompson (1861),48 Cal. 11....... ae: |

- United States, Causey v. (1916), 240 U.S. 399.........- 12

. United’ States v. Chandler-Dunbar Water Power Co.

v (00D) OU A gon pckhovic de ctbuwike ree 6, 7, 11 -

United States vy. Coronado Beach Co. (1921), 255 U. S.

Oa eRe dhe oly cheb sd oe one onde eke nbees FT ie

United States, Cramer ¥..(1923), 261 U.S.219......1. 13

United States, Hussey v. (1911), 22 17S % See Se 5

-: United States, Jeems Bayou etc: Club v. .(1923), 260 ©

SEPM UL hs bin Lad Adin kaso en aad ca ew EERE een 12

. United States, Lee Wilson & Co. v. (1917), 245 U. S..24 12

United States v. Minnesota (1926),270 U.S. 181, 208.. 4

United States v-O’ Donnell (1938), 303 U. 8-501. .3; 9, 10, 18

Utah Power & Light Co. v. United States (1917), 243 .

me EP Rel EL EI GL aR A li.

‘Wd y. Mulford (1867), 32 Cab. 365.............00.. 17

Wilson & Co. v. United States (1917), 245 U. S: 24.. 12

Ww right \ v. Roseberry (1887), 121 U.S. OU bs vks'ss cuss 8 _ ie

. . STATUTES Crrep. ¢

UB. Cy Title 43, ‘See. 1166 ...... gpebeiebicsesyees 8

. , Texrsooxs CiTep.

_ Pomeroy, Equity Jurisprudence (5th ed.) Sec. 818 .... 11

-: | Cours Rutes Crrep. .

" - Rule 52(a), Rules of Civil Procedure ..............-. “14

> :

IN THE

ren Court, of the Gnited States

Ocroser Term, 1941. Bans

s

a No. 848. . :

c ~ Mary W. Stewart, et al., Petitioners, * .

v..

( Unireép States or America, Respondent.

” Eats

\ }

j

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_PETITIONERS’ REPLY BRIEF.

; _ INTRODUCTORY.

This reply brief will conform essentially with the order °

observed in petitioners’ opening brief. In the ifterest of

brevity thé discussion of principles of equity and the de-

fefise of eQuitable estoppel will be included in a single sub-

division (IIT). <

‘Petitioners’ contentions upon the issue of fact have been

- adequately developed in our opening brief (Point V, pages

63-70 and appendix). Our reply to the opposing presenta-

tion will be found in the appendix hereto. “

~

ny : Ot

2

‘STARE DECISIS. _

The Court of Appeals Was Not Free to Disregard the

- - Decision in the Irwin Case. -

We have eee? in our ppening brief that inasmuch as the

%

identical claims now made by the Government: to the idet- ° -

tical lands here in_ suit. were adjudicated adversely’ to the

United: States in San Francisco, Savings Union vy. Irwin

(1886) 28 Fed, 708, affirmed by this Court in Irwin v. San

Franciscé Savings Union ( 1890) 136 U. S. 578, and inas- .

much a t decision was allowed'to go unchallenged. for

40 ‘years, if became a part of the law of the title and the

Court of /Appeals was not free to disregard it. (Ptnrs.

Br. 18-2 At page 43 of its brief 1e Govertiment con-

cedes th t it is ‘*familiar/doctrine th e titles to land |

may be affected thé courts strictly adhere to the doctrine

of stare decisis’. Obviously, this is a rgeognition of the

essential validity ‘of’ the principle upon which we rely.

We have: further pointed out (Ptnrs. Br. 21), and in the

ver¥\nature ofthe principle it necessarily follows, that the

rule réqqires the strictest adherence to the earlier decision,

-where tke identical title to the identical lands is again under

attack, based ppon the precise claim previously made and

adjudicated. Suclreases are, as would be expected; not as

/ common as those which inyoke only the more general doc-—

' trine, but wéhave cited a number of them in our opening -

brief (pages 21-25) and the Court will note the special

strictness with which the doctrine is in sucht cases applied.

6 Even where the prior decjsion turns upon a question which

‘is largely one of fact or of mixed law and fact—such as

the construction of a particular instrument—the courts re-

gard the determination as being the law of the particular

_ title which, after the decision bas long stood, they do not ~

_ feél free to disturb. Upon principle .it should be so, for

otherwise there can be. no stability of land titles based upon

adjudication. . | flea | :

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In petitioners’ opening brief. we stated that after the

affirmance by this Court of the decision in the Jrwin case

in 1890, the result Was accepted’as final by everyone. The

Goyernument’s brief disagrees with this statement (Govt.

Hd 1139), but in our view without warrant. . ;

: rief for the Gov ernment foes outside of the record

in this case and points to material in the record in the

O’ Donnell case with a view to showing that thére was a

considerable delay after the Irwin decision before the last

of the lands im Survey 569 were platted and patented—the

intended inference being that this serves to. show that the .

[ryin decision was not accepted as final. he fact is that.

most of this evidence relates primarily to Survey 34* and

.it was the controversy as to those lands that delayed the

final approval of the township plats and hence the iscuance °

of’ petitioners’ final patent. The record here affirmativelS~

shows that, because of the Irwin decision, the Navy no

longer claimed/the land iv Survey 569 and accordingly First

Assistant Secretary of. the Interior Finney ordered the land

" patented. (Ex 37, R. H1—260, 262- 263) Thereupon,-with

.out any protest, it was patented. The first attack upon the

Irwin decision was the filing of the-instant suit.

The Government’s brief criticises the opinion in the Irwin

case jn several particulars with a view to showing that the

case was wrongly decided. Were. the ¢riticisms valid they

would afford no reagon, after all thése years, to depart from

the decision.. The. recise purpose. of the tule of stare

decisis is to afford pfrotection to those who rely on decisions

‘of long standing against the vicissitude of later change. _i°

We are unwilling, hoWXever, to let the attack upon the Zrwim -

‘ decision go unanswered, because in all particulars essential

- to petitioners’ cage here the criticisms in the sg ber aaa s

brief are without merit.

‘Phe Gov ernment’s brief asserts that, so far as the prin-

ciple of W right v. Roseberry as to maintaining an action of)

ejectment ‘upon a swamp land title before patent has been

issued by. the United States Asronmeerned, the decision has

*All emphasis throughout, this brief is ours utiles expressly

otherwise noted. ee,

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~

v

ee

ee eee, 2

—_ répudiated. (Govt. Br. pt) If so, the matter is of no

moment since the case at bar in no respect turns upon that

principle. Patents have been issued here, many years Since.

Even less té the point is the suggestion that Mr. Justice

_. Field expressed doubt whether the United States, not being

suable without its consent, could acquire title by adverse

possession. .His decision that no such ne in fact

‘shown is indisputably correct. And it need hafdly be added .

that the Government ‘has never, since 1890, been i in posses-.

sion of any portion of the land in litigation here, adverse

or otherwise. | ee

The Government’s brief suggests that, the decision of: Mr.

Justice Field is vulnerable in so far as it holds (28 Fed..

715) that after Congress had granted these Jands in. i850

it was not competent for the President to revoke the grant

by a reservation made in 1853. The Government lias over-

- looked-the fact that Judge Van Fleet’s contrary conclusion

in Sawyer v. Osterhaus (1914) 212 Fed. 765 was rejected by

this Court in ater case 6f United States v.. MiniéXota -

(1926) 270 U.SS. 181, 208, where it was clearly indicated .

that it was not competent for the Government to revoke”

a grant made by the Swamp Land Act.

' Finally, the opposing brief seeks to avoid the effect of

the Irwin decision upon the ground that Mr. Justice Field’

erroneously held the land to be below the line of ordinary

high-water mark. - This again impresses tus as a diversion:

In cur brief we have shown that Mr. Justice Field -could

not have so held because the land would then have. been tide:

land and would not have passed under the Swainp [and Act:

(Ptnrs. Br. 29-30) It might appropriately be added that,

had it beer the thought of ‘Mr. Justice Field that the land

‘was. below ordinary high-water mark, there would have been

ngoceasion for him to discuss whether, prior to patent, the —

nledntifs could prove the swamp land character of the land

--which was the main question in the case. Nor would there ©

have been occasion for this Court to affirm the decision on’

that very point under the authority of Wright v, Roseberry.

The cireumstance, that -thix was the «principal point - dis-

cussed in the opirdgn shows that Mr. Justice Field could not

5

_ have intended to decide that the lands were tide lands and

hence completely eee the Swamp Land Grant. The -ex-

_ press holding that*they were within the Act excludes the —

Government's contention that he held ‘them to be below the _

line of ordinary high-water.

The Government’s brief asserts (page 44) that i ussey V.

United States (1911) 222 U. S. 88 involved ‘‘a contention

similar to that urged by petitioners’’. The Government ap-

pears to have misconstrued the-case, for it does not involve

the principle of stare decisis at all: ‘There the plaintiff pur-..

~- chased before the prior adjudication—not after and in re-

liance upon it. All that the Court held was that in such cir-

cumstances. th@ prior decision was not a rule of property .

and was not tes fidicata against the United States.-

~The Government’s brief fails to cite any case wherein,

‘a prior adjudication of the identical title-having been al-

‘lowed to stand for niany years so that those dealing with the

title must necessarily have relied thereon, the courts have -

later felt free to depart from the earlier adjudication. The

eases which we have cited (Ptnrs. Br. 21-25): tonvincingly

. shew that in such cireumstances the courts will not disturb -

the earlier determination. . land .

/- ‘i TI.

4 THE STATUTE OF LIMITATIONS.

In our opening brief (pages 32-40) it was soon hat as _-

to Swamp. Land Patents 52 and 172 issued, respectively,

34 and 20 years before this suit was brought, the, action is

barred by the federal six-year statute of limitations which

provides: ._ - ; / : Vas

. “Suits by the United States to vacate and sieemal

any patent shall ‘only be brought within six years after.

the date of the issuance of such patents.’’-( U. S.C, Title |

43, § 1166) aS

Although the idtentas involved are “ordinary swamp land

- patents the Government claims.that an exception should be

"read into the statute’so as to exclude: these patents from its

operation. It is not represented that this case is not within

o

6 fs

the sntaclsiat aimed at by the stat ie. The gross inequity of

the result reached by the majori “of the Court of oie

makes plain the need of statutory Protection a belated

attacks. -

The Government’ s contention - comes to this: that the

‘Jands in suit, being (so it is claimed) within the Castro

grant, were not subject to the jurisdiction of the Land De-

_ partment, that the patents are nullities, and that the statute ~

affords petitioners*no protection. W e have réplied (Ptners.

Br. 37-38) that such was the pituation i United. States v.

Chandler-Dunbar W at Power Company (1908) 209 U. S..

447. The Court, speaking through Mr. Justice Holmes,

_ assumed that the land, being within a military reservation,,

was not subject to the jurisdiction of the Land Department

but went on to say? ? | | +

“Tt is said that the instrnment was oka and hence

was no patent. But the statute. presupposes an instru-

ment that might be declared to be void. When it refers

to ‘any patent heretofore issued’, it,describes the pur-

* port and souree of tie-document, net its legal effect.

If the. Act were confined to valid patents . it would. be

almost-or quite without ufe.

oy Ss Re a

“*This statute must be taken to mean that the patent

- is to be held good} and is to have the same effect

against the United States that it would have had if it

trad. been valid In the first place.”’ (209 U. S. 450)

The essential .parallel -hetween the situation in the Chan-

dler-DunVar case and the situation in.the instant case would

‘seem to-be-very cléar. In the former case the Government

contended that the land was within a military reservation,

-had therefore been withdrawn from. the jurisdiction of the

_ Of these patents was unauthoriz

Land Department, and accordingly the issue of the patent

was unauthorized. Here the argument is that, although

et

the lands were swamp lands, title had previously vested in.

the Government thus withdrawing the lands ong the juris-_

diction of the Land Department a dogs aecordingly the issue

ence going to the applicability of the statute ‘of limitations.

ao .

cate i a SJ

a

We discover no differ--

‘6

—-

_ Returning to the-holding in, the Chandler-Dunbar ease, it

was ruled that, whether the President as head of the Land

Department had authority to make the ‘patent,

_ **the United States had pdwer to make it or to validate.

it when made, since the interest of the United States |

was the only one concerned. We can see no reason for

doubting that the statute, which is the voice of: the

Enited States, had that effect. pee

The’ Government’s $ position is not aided by veloc | to

the language of the Court’ s opinion that ‘‘whether reserv ed

or not’? the land was ‘‘in kind open to sale and conveyance.

through the Land Department.’’ Here also, except for the

alleged fact’ depriving the Land Department of jurisdiction

_—i.e., the claimed fact that the land was within tlie confir-

mation decree—the lands were “in kind open to... con-

veyance through the. Land Department’’ and the Govern-

t anent concedes as much. (Govt. Br. 46)

The law is, we think, plain. Mr. Justice Holmes has

made it clear that the statute is a bax provided, and pro-

vided only, that the interest of the Unted States alone is

concerned. It is not without significance that the Govern-

ment has cited no case where, the interest of the, United

States alone being involved, the statute was held not to

apply. :

There is no foundation for the final a ee in the be ief

. of the Government on this point that our contention results

-in “*the ufthinkable cc.isequence that, after six years, the

Government would be powerless to attack any patent, how-

_ever obtained and regardless of the site covered’’ (Govt:

Peep ge If a patent is issued through fraud or its equiva-

lent;-the Goverriment has six years after the fraud is dis-

-covered within which to proceed. ‘Surely this is-ample pro-

_teetion, sspecially in view of thp fact that if the United

States is in possession gf the land patented then, as thé

Government claims (Govt. Br: 38), the United States may

also rely on adverse possession.

If the statute is to be held not to apply i in acase sigh as

the present, then, indeed, in the .. phrase~ of ‘Mr. Jtistice

-

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Holmes previously quoted, it is “almost or quite without

use.”” ; : rae een ee

&, Spat Na. 7 “TI. : /

EQUITABLE ESTOPPEL. De lang

°

“The. Government? s brief admits that the United States. «

- is subject, as a a suitor, to ‘‘the general principles of equity *

but denies: that. the rale means ‘that ‘‘the legal rights ofthe

‘United States: are to be détermined upon general notions

- of fairness without regard to present or established dias |

°

ciples.’’- (Govt. Br. 52) - '

Mp tiioner defense pf. catitable}estoppel i is “based ' upon:

th follow'ng circumstances, which are indisputably, estab- .

lished upon this records): bbe :

1, Thege netitionsr’ and their predeéessors had hen |

in undisturbed and undisputed: posséssion .of these

’ lands for a great.many years continuously. Their title

was not questioned by the Government from 1890 when

the decision in Irwin v. San Francisco Savings Union

-was affirmed by this. Court (136 U.:S. 578) until 1930

ee this suit was brought, a period of 40. er

_ There has been neither Gov ernment possession

‘nor i atieeeehed possession of these lands, singe 1890.

3. All 4 these petitioners pyretiasdd their lands after

patents had been issued by the Government. (Paren- -

_thetically, the Government ‘brief is in error in reciting

" that the ‘Sears Pofnt Toll Road Co. constructed its toll

road ‘‘affer (sic) ° Congress granted a right-of- way .

. . across the langls in suit’? (Govt. Br, 11). The fact is

that the toll road was-built ten years prior to the Con:

gressional grant of 1926, ds the Government? ’s brief

-- shows on the same page, ‘and likewise Rrior to the in-

_ stitution of this suit in 1930.)

4: The three Government patents ‘ were jssued 34

. years, 20 years and nearly 6 years, respectively before

the. bringing, of this suit. ‘Adi were issued voluntarily,

and the most’recent patent was not issued until after the

Secretary of the Interior had given notice to the Secre:

sci of the ee who made na, 5 heya) 3

4 i

re Riese ee gk Bee intel ne, ae VAR

2 eae

al e

| ‘win State potent covering these bie was issued ,

Man 1874. ¢ ae :

The expenditure: made by these’ petitioners: in the *.

purchase and improvement of their lands ‘have exceeded

sticarin,

7. At no time during the period of. 40 year s Oi ;

fram 1890 to 1930 has the Government, ‘by act or word,

ae title in itself or ——— the ey of the

Ir@in decision.

. In 1896 the Xavy. ‘Yard Commandant assented to

a “ eury ey for the’ purpose of fixing the boundary’ be- -

tween these lands and, the Gov ernment dands and such a

surver was made.

- 9. In 1913 the: Navy Department filed for iis in

the Reeorder’s Office: for Solano County, California, a

vation, Mare Island, Vallejo, Cal.’’ . Tlie filing was in

‘

formal ‘‘Map Showing Location of U. S. Naval Re sser- k

-- aceerdance with’an Act of the California Legislature of

1897 ‘ceding to the United States exclusive jurisdiction

of Jands oceupied by the United States for military pur- |

poses or defense, This map (Ex. 9, R. IV-38) shows

that the resérv atYon did not cover any of the lands here

in suit but stopped at the present Navy Yard boundary -

- fence.

“10. In 1914:the N NAV SY ard suite ities constructed a

fence ‘along the southerly. boundary of these. lands, and

that. boundary fence has ever gince continuously been -

maintairied by, the Gover nment, - 19

These are the main eiroumstances ‘upon whieh: petitioners 8

have rested their defense of ‘dquitable estoppel, and we re-

‘peat that-the facts outlined’ above have been indisputably

established upon this record...

We would not have the Court confused by’ sciementicnin } in

the Government’s brief that there has not been acquiescence

_ by the Gov ernment in the Jrwin decision. The Government

brief refers to certain circumstances. suggesting that the

United States had not abandoned its claims to these lands,

hut itwwill be found upon examination that these references

are primarily. to the lands in Survey No. 34. involved in the

O'Donnell @ase and that the record citations are to the rec-

m

: . 10 | as :

ord in the O’Donnell case which is not before this. Court.

: (Govt: Br. 12-13) The Government brief -doex not. attempt

to explain or excuse the failare of the Government, by word

or actsfrom 1890 to 193), to assert any claim to these lands °

or to challenge the title or possessign of these petitioners. «

Beyond doubt there was atquiescence in the Trwin decision

as to these lands from 1890 to 1930, and it avails the Gov-

ernment nothing to show tal it was claiming the O ’Domiell

vy Yard boundary fence and.

ed possession and use of .

lands which lie within the N?

which had been in:the uninter

the Government, —

We pass to certain specific contentions advanced: i in 5 the

Governnient’ s brief: roe ;

Kk irst, it is suggested that silica argument mounts

to no more than;a claim to a prescriptive title and it is

argued that ‘‘mere occupancy of the public lands and im-°

- prov ay ther eon gives no vested right therein as against

the United States. ”” (Citing eases) (Govt. Br. 93) Wemake .

no such contention and the-cited cases are not in point.

These petitioners are not ‘‘mere o¢cupants”’ of Government

lands. They hold title under solemn patents from the United

. States and they rely upon an adjudication of title which bad ;

stood. unchallenged ‘for 40 years.” :

_ Second, it is argued 4 that a court of equity should nak: en-

force ‘a colorable title, like that asserted by petitioners, .be-

cause of a reluctance to oust intruders upon Government

property%”’ (Govt. Br. 54) Cases are cited suggesting that

‘‘In this way; the public domain would soon be appropriated .

by adventurers.’ (Govt. Br.S4, 65) But these petitionérs

-. have no merely ‘“<eolorable title,” ‘they are not ‘‘intruders

vpon Government property’? nor are they ‘‘adventurers’’

ugon the public domain, The words in the Government brief |

have been ineptly chosen.’ They do not properly characterize

the acts of these petitioners in relying upon Government

patents and upon Government acquiescence in a decision

as ” title which had stood ccacencaeies

trycnecr e

Third, it is epresented, quoting from the siitiiiaies opin-

ion of the Ciredit Court of Appeals, that the rights.of those

claiming under) the ‘State ‘have’ been from,the’ beginning

‘‘shroudedin doubt and uncertainty. ” (Govt. Br. 57) With -

deference, this characterization is quit# unwarranted. The

- words could be applied to the O’Donnell lands which were |

continuously in the possession and use- of the G oe

and as to which there shas been no adjudication: They are

not applicable to petitioriers* lands which the Government

had not claimed er passessed for inore than a generation

and title to which was adjudicated: Petitioners rightfully |

: relied u upon these long years of Government monzaction.*

Fourth, it is said that ‘*Congress has never Mlidedided”

the Government’s claim of title to the lands in suit’? and

that ‘‘The defense of equitable estoppel is therefore re-

duced to the charge that the United States is bound by the

action or. non-action. of its officers.’’? (Govt. Br. 59). The.

‘same arguments could with equal propriety be advanced on

: the part of the Government ii the ease of the United States

v. Chandler-Dunbar Water Power Co. (1908) 209 U.S. 447..

If contentions of this variety were to prevail, the defense.

of equitable estoppel could never be invoked successfully

against the Government. ee

The cases cited in this part of the Gov enieiaik ’s‘brief are.

not antagonistic to the authorities upon which we rely. For.

example, in Utah Power & Light Co. v. United States (1917)

243 U. S. 389, cited upon page 59 and elsewhere of the Gov-

, ernment’s brief, the Government was not seoking unquali-

a

1The Cievernsstht brief. itn upon Fasansting' s Equity Juris-

prudence as authority ff pupposed rule that before there can be

of ‘intentional deceit’ leg uf of ‘‘that gross 'n gligence which

is evidemce: of an intent t¢ dective’* (Govt. Br. G1-42). But the

rule is not so narrow. Peneney has: said under‘the caption

- ““Aequiescenee as an Estoppel to Rights of Property or of Con-

- tract,’’ that “‘A fraudulent intention to deceive or mislead is not

essential’? (2 Pomerdy’s Equity Jurisprudence, Fifth Edition; »

>

§ 818).

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a

sd : 4 .

fiedly to oust the power company. This appears , clearly ‘

- from the following statement taken from the opinion of this

Court in that case: — po

“The principal object 6f the suits, as is said/in one of

the briefs, is to test the -vadidity of these hpbensehe rights,

and, if they be found invalid, to require the defendants

to conform to the legislation of Congress: or, at their

option, to remoye from the governinent lands.”’ (243. .

* U.S. page 403)

All that the Government realy sought was compliance .

with Government laws, rules and regulations réspecting the

enjoyment of rights on lands within the national forests.

(See also the-opinion of the Circuit Court of Appeals in bn

-sanie case below, 230 Fed. 328, 339-340). The Gove

was not seeking a forfeiture.

The case of Causey v. United States (1916) 240 U. S.

399, reviewed upon pages 55 and 56 of the Gévernment’s ”

brief, involved a suit by the United States to cancel a pat-

ent issued through improper use of Government scrip.

There the patentee and his assignee were W rong-doers, hav-

ing obtained the patents through fraud. Being wrong-

doers they were required to restore the title unlawfully

‘ obtained and could not claim equitable relief. These peti-

tioners on the other hand are not wrong-doers. ‘

The case of Lee Wilson & Co. v. United Staley (1917).

245 US. 24, upon which the Government also relies (Govt.

Br. 59) was again a case of frand, or of error so gross as

to set to fraud, and the Government acted upon the

discovery of the fraud. .The case simply holds*that when

fraud has been shown on the part’ of one who has secured

title to Government lands. the Government may ,not be

estopped by acts of its administrative officers ‘‘before the

discovery of the fraud.’’ tee

The case of Jeems Bayou etc, Club v. United States

(1923) 260 U. S. 561, was likewise a case of fraud or, in the

aes of - opinion of this Court in that case, ‘there

3 he

was ‘‘such gross and palpable error as) to constitute in :

effect fraud upon the Government’’ (260 U. S. 563-564). ‘

The case of Cramer v. United States (1923) 261 U. 8. x1

219, arose upon a suit brought by the Government on behalf

of certain Indian wards to cancel a patent issued under the-

~ Railroad—Aet-of- 1866 upon the ground that certain “of the— -—

lands embraced within the patent were at the time of. the.

“* act-and ever since had been occupied by these Indians and

therefore were excepted from. the railroad grant. The ’

essence ofthe holding of the Court i is disclosed by the fol-

lowing excerpt from the opinion (p. 234): :

+**Since these Indians, with. the implied coithent of the °

government, had acquired such rights. of occupancy as

entitled them to retain possession as against the de-_

-fendants, no officer or agent of the government had

authority to deal with the land upon any other theory.

The-acceptance of leases for tlie land from the defen-

dant.company by agents of the government. was under

-. ++ the a mstances, unauthorized, and could not’ bind -

—_thooeenment; much less could it deprive = Indians

their rights.’’ (Citing cases) “*

The case is “not in point here.

As we appraise the cases upon which the Government |

relies, none of them can afford authority or warrant for the

effort of the Government to dispossess these petitioners. °

and forfeit their titles when they are innocent of any

wrong-doing or of any charge of wrong-doing or bad faith. .

‘They have relied upon United States Government patents.

and upon a long standing adjudication of title.

‘Petitioners’ case would seem to be both within the terms —

and: responsive to the purpose of the rule of —

estopant which we ‘invoke against, this suit.

~

__¢ was embraced-within the Castro grant nor r within the_con-

is _____cepted by the Court of Appeals.

: U pon this essential point the opposing AE ies 3 ?

14 -

IV... -

"The Findings of the Trial Court That the Lands in Suit Are

; Not a Part of Mare Island and Were Not Within the —

Castro Grant or the Confirmation Decree Were Amply

Supported by the Evidence and Should Hav — |

In petitioners’ opening brief it sis shown, in discussing

this i issue, that the inequitable result, of the judgment of the

inajerity below could have been avoided by: construing the

confirmation“decree as it is written—as embracing only the

lands called Mare Island, which did not include any of the

’-Jand in suit. The trial court found that none of this land

‘was ever known as or called Mare Island, that none of it——

firmation decree, and that accordingly it passed te the State

_ under the Sw vamp and Act.. These findings re saere

” by the overwhelming weight of the evidence. The majority

in the court below have disregarded these findings and- have

failed to give them any effect though manifestly.they are

of ‘cgntrolling importance, as the dissenting opinion of

Judge Mathews makes plain. ,

Br. 28-35) fails to meet us. No reason is shown why the

call of the confirmation decree for ‘‘the place called ‘Isla

de la Yegua’ or Mare Island’* could not and should not

have been given effect. = 0 0° wr : :

The ev idence s ting the trial court’s findings. was

reviewed in detail he appendix to petitioners’ opening

‘brief. This review, though to some extent discussed in the

opposing brief, has not been answered. So far as that dis-

-eussion calls for a reply it will be: found in the appendix

_ hereto.

in the opening brief ( page 63) attention was dirécted to

thet failure of. the. majority of the court below to accept the _

findings of the trial court, in derogation, as it seemed to us,. -

from the requirements of Rule 52 (a) of the Rules of Civil

Procedure. The brief of the Government does not in terms

seek to justify this failure to observe the rule. %

‘ ‘2

8. fy kee

CONCLUSION.

| The argument for ‘the Government is brought ‘to delosp

with the suggestion that ‘‘There may_be ciréumstances )

indicating that petitioners, to the extent they are’ not’ in-

~ sured, should be reimbursed by the Government for ex)

_ penditures in improving the lands or for other costs * * mo

(Govt. Br. 66). Thus, tie essential injustice—the inequity

- “of this suit on the paft of the United States appears at

length to find implicit recognition in the Government’s

brief. While this conece§sion aids the case for the petition-

ers, We can see neither reason nor justice i the suggestion —__

thata distinction may bs draw between the pedliggers and:

their insurers. The assured and their insurers alike have

- relied upon the circumstances which have okie rise to an .

‘equitable estoppel.

This tardy recognition of the inequity in the Govern-

ment’s suit is marred by the suggestion that if the petition-‘~

ers are to be ‘‘reimbursed by the Government”? such relief

must be obtained from the legislative department.. (Govt.

Br. 66) It is our view. that the protection which petitioners .

seek against inequity. may be found within ‘‘the sphere of

judicial authority” and i in this immediate cause.

Respectfully submitted,

WJ M. Maxwoy, ‘SJR.,

A. CrawForD GREENF,

AuLAN P, Marruew, Pie

. Rosert L. Lipman, . © .

se Attorneys for Petitioners:

W. H. Spaviprne, eee , .

Tuomas E. Patmer, ‘ etna

“McCurcuen, Otney, Mannon & GneEne, catics =

° Of Go Counsel.

Dated: Washington, D. ©..

April 27, 1942. Petre ys hae

a

16: +

APPENDIX.

The Grant to Castro Did Not Include the Lands i in Suit Nor

- Were They Embraced Withirf the Confirmation Decree.

In petitioners’. ppening br ief (pages 63-70) it was shown

that the lands bse in suit were not a part of Mare Island; :

Were not, unde

‘were not covered by. the decree of the Board of Land Com-

missioners confirming the Castro grant. In the appendix

to our brief the evidence as to the boundaries of. Mare

Island according to Mexican law was te¥iew éd, showing that

* the island consisted of only the high land. The evidence as

~~

to what was called or known as Mare Island showed that.

- nothing but the high land, aud the high land alone, has never

been known or called by that name.

lt. is significant that the Government’s argument upon

this point is entitled ‘‘The grant of Mare Island to the,

United States included the Jands in-suit.’’ The description | Z

in the Bissell-and ‘Aspitiwall deed to the Government is,

as Mr. Justice Field said in the Jrwin case, ‘‘more extensixe

.than the one covered in the grant to.Ca:iro‘or by-the Com-

missioners in -the-deeree confirming the claim under it’’

‘(28 Fed. 714) and, as Mr. Justice Field went on to hold,

Bissell anid Aspinwall could - not. convey more than they

acquired under the grant. We are concerned, therefore,

with what was granted to Castro. —

As to what, according to the Mexican law, passed by a

grant of ‘an island, the only answer to Professor Radin’s

clear testimony that only the land lying above highest high-

water mark would. pass is a bald statement that there is ~

nothing in the Mexican law inconsistent with a grant of all

of the land down to high-water mark. The case of over v.

Insular Government (1911) 221 U. S. 623 is a ease involving ©

the powers of the Governor of the Philippines, where the

land below: highest high-water mark was granted for the

specific purpose of reclamation and improvement, and is no-

authority that a grant by ‘the Mexican Government under .

Q

hé Mexican law, granted ‘to Castro; and -.

~~

; the colonization law, such as we have here, would, without

any spécific mention, carry, title to the land below the line .

. of highest high-water. Such cases as the Coronado Beach

ease, .Teschemacher v. Thompson and Ward v. “Mulford |

merely held, as the Government has elsewhere claimed, that

- where land below highest high-water has been confirmed arid

patented it is too late to claim, collaterally, that the patent

covers too much. No one of these cases goes so far as to

hold that; under the Mexican law, a private grant-on tide

- water goes to the line of ordinary. high-water mark.

nesses as to the elevati

Nor. does’ it advsinee .the Government’s case to. argue ~

(Govt. Br. 69) that under the civil law an island is a body

of land entirely surrounded by water. The question yet

remains—at what tide? The Mexican law: answers this, as’

Dr. Radin testified, at the line of highest high title through- :

out the year.

On the question of fact as to whether the lands in the

‘‘neck’’ were below the line of highest high- -water, the Gov-

ernment:wholly fails fo meét us. In answer to petitioners’

rowing of the testimony of the eye witnesses that the

early 1900’s (Apdx. iv), before the artificial reclamation work

was done, and the testinjony of the Government’s wit-

of the tule swamp (Apdx. r-vii),

the Government.remarks that this was in 1900 andMnot in

1852. (Govt. Br. 70) »The Government ignores the.fact

that its own witnesses testified that the. natural process at

the *‘neck’’ has been one of accretion or filling and not one

of cutting (R. TI—523, 590-592), so that conditions in 1890

-’ were more, and not less,.favorable to the Government than

they were in 1852.

- The Government again fdverts to the sand ridge. , We

‘*neck’’ was frequently overflowed in the late 1890’s and .

s

stated in our brief that none of the testimony showed aay y.

sand ridge in the narrows of: the neck. (Apdx. »Xiii)

Government says in reply that it is plain from Lieutena “

_Smith’s whole testimon; that the ridge extended through

Survey 34. (Govt. Br. 70. 71) We repeat what we said i in

petitioners”: opening brie! ,—that it is not without signifi

>.

wl

a ;

ED i cance. that upon sch a cruciakgpéint the ‘Government has

no specific testimony. that there was. a sand ridge. at the

*~ narrows of the neck, that the eye witnesses testified that it

© was all tule marsh (Apdx. xiv) and that the Government’s -

~ own map by Rousseau (Ex. S-1, R. IV—26) shows .no sand 21

ridge at this point. . * “ot

In petitioners’ opening brief” we ‘challengéd the: accuracy

of, the Government’s Exhibit T (R.-IV— 28), particu- -

larly ; at the critical Station 48. The Government ‘answers

by ignoring Station 48 and discussing stations at other

points. (Govt. "Br. 72) The Government. brief does not

deny: thaf Captain Carlson testified as to how the line of .

1852 is derived just as-we said he did’ (Apdx.\kv) nor that,

as indicated by petitioners, the legend on the pxhibit itself

confirms that (Apdx. xv) nor, as petitio ‘pointed out,

- that the line of 1852 at Station 48 was ‘net drawn as Captain

Carlson and -the exhibit itself. said. it should have been

>. drawn. Nor does the Government undertake to state that

“the line, of 1852 was correctly drawn as Station 48." Qur

argument is not answ ‘ered—it i is shnply ignored.

The eye witnesses, as we have said, testified that the neck

-was frequently overflowed.” (Apdx. iv) Far from show-:

ing that this was not so, the Government goes outside the

record and quotes. from the Joy report in the O’Donnéll —

case (Govt. Br. 72) language which. demonstrates that our

own W itnesses were correet: ‘ ‘

a5 ‘*The results of my investigations and observations

ne while gn the ground jead me te believe that there-is no

‘ . doubt that water at extra high tides, from San Pablo.

Bay, erdssed_over the narrow strip of land in. sees. 14

‘and 15, ‘gt extra high tide and probably at ordinarily

high tides with a stiff wind from the southwest, but that

‘the water crossed over the shore of the Bay, more in the

~ manner of an overflow, a broad sheet: ‘or spillw ay, with- >

out any definite channel, and only i in one direction to

- the. northeast away from the Bay.”’ .

ia :

Upon the record it is plain that the land was frequently

under water and, therefore, under. the Mexican law all that

e

.-

& ‘

+

» : . e

s .

- ‘passéd to Cautre was the high land iin ).

highest high-water, which excluded all of dhe land in suit.

The concept of Mare Island accordit @the Mexican law

conforms exactly with the popular ur fistanding of what

_ was called Mare Island. And it was thé island named ‘La

‘Y egua’’ that was granted to Castro. We have pointed out

in some detail (the maps, the Sloat Board. Report. and the

hoyihe tn proceedings—Apdx. xvii-xxviii). the evidence

showyhg that nothing but the high land was ever known or

alled by that name.. The Government ‘nevertheless chal-

lenges the trial court’s finding. (Govt. Br. 32-35)

It is significant that the Gavernment refers to rio map

supporting its claim. It is. suggested, however, that because

the Bissell.and Aspinwall deed purported to cover more

- than the Righ land and because the Government from time

td time clainied the swamp land in Survey 569 as being a

fart of Mare Island,:this shows that the land was known

as or Called Mare Island. (Govt.:Br. 33) ‘This is no® a _

reply. © Petitioners’ disenssion of the Sloat. Board Report

(Apdx. xxii-xxvi) should be compared with that in. the Gov- -

ernment’s brief. (Govt. Br. 34-35) > :

What was granted to.Castro was the island waieed “La

Yégua.’’ The decree of confirmation expressly states that

**the place of which confirmation i is given is situate in the

_ Bay 8f San Francisco and: is called ‘Isla°de la Yegua’ or

- Mare Island....’? (R. V-70)” Accordingly, upon the record

_there was tro warrant for the action of the majority of the

Court of Appeals in overruling the finding of the trial court . is

that the lands in suit were noka part of. Mare Tsland, were

not granted to Castro, and were not covered by the econ-

firmation decree. . ite ee avs