United States v. Ruby Company, a Utah Corporation

588 F.2d 697 UNITED STATES of America, Plaintiff-Appellee, v. RUBY COMPANY, a Utah Corporation, et al., Defendants-Appellants. No. 75-1411. United States Court of Appeals, Ninth Circuit. Nov. 8, 1978. Rehearing and Rehearing En Banc Denied Dec. 29, 1978. H. William Furchner (argued), of Furchner, Martsch & Baker, Blackfoot, Idaho, Dale G. Higer (argued), Boise, Idaho, for defendants-appellants. Michael A. McCord, Atty. (argued), Dept. of Justice, Washington, D. C., for plaintiff-appellee. Appeal from the United States District Court for the District of Idaho. Before ELY and WALLACE, Circuit Judges, and BYRNE, * District Judge. WALLACE, Circuit Judge: 1 Appellants are landowners against whom title was quieted to some 108.36 acres of land in Idaho. They raise contentions regarding sufficiency of the evidence and important questions concerning the doctrine of estoppel and its application to the government. We affirm. 2 In 1876, David contracted with the United States to survey certain lands situated along the Snake River in Idaho. As part of his task, David was required to determine the location of the river and to represent its situs by establishing meander lines. David…

dissenting:

I respectfully dissent. As I see it, the result reached by my Brothers is not only unjust, but also, that result is not legally required.

In Bart II of its opinion, the majority concludes that estoppel is not here applicable against the Government because the Government committed no affirmative misconduct. I have no quarrel with my Brothers’ statement as to the basic legal principle that should be applied. It is now clear beyond question that the law of our circuit *706 requires a showing of affirmative misconduct before the Government may be es-topped. California Pac. Bank v. Small Business Admin., 557 F.2d 218, 224 (9th Cir. 1977); Santiago v. I&NS, 526 F.2d 488, 491-93 (9th Cir. 1975) (en banc), cert. denied, 425 U.S. 971 , 96 S.Ct. 2167 , 48 L.Ed.2d 794 (1976). It is the majority’s application of the principle that I deeply feel to be thoroughly wrong.

As written by our Brother Choy, with whose perceptive comments I recently joined in Santiago , “ ‘(a)ffirmative’ and ‘negative,’ like ‘misfeasance’ and ‘nonfeasance,’ are indeed slippery terms. Each one of the claims paraphrased negatively can readily be restated affirmatively . But it is not how we cast the…

Appellants are landowners against whom title was quieted to some 108.36 acres of land in Idaho. They raise contentions regarding sufficiency of the evidence and important questions concerning the doctrine of estoppel and its application to the government. We affirm.

In 1876, David contracted with the United States to survey certain lands situated along the Snake River in Idaho. As part of his task, David was required to determine the location of the river and to represent its situs by establishing meander lines. David completed his survey in April 1877. On the basis of his efforts, an official plat of the area was prepared and certified by the Surveyor General’s Office at Boise, Idaho.

On June 29, 1891, the United States issued a patent to Forbes which conveyed a particular lot, the east boundary of which is *700 described as the meander line of the Snake River. The landowners are successors in interest of the original patentee.

In 1922, the Bureau of Land Management (BLM) made an investigation of the meander lines of the Snake River as represented by the David survey. The BLM concluded that David’s meander line was fraudulent. As a result, the Surveyor General of Idaho…