RED CANYON SHEEP CO. v. ICKESNo. 6991.
98 F.2d 308 (1938)
RED CANYON SHEEP CO. et al.
v.
ICKES, Secretary of Interior, et al.
United States Court of Appeals for the District of Columbia.
Decided May 27, 1938.
Frank K. Nebeker, of Washington, D. C., for appellant.
Nathan
R. Margold, Solicitor, Department of the Interior, and Frederick
Bernays Wiener and Jackson E. Price, Assistant Solicitors, Department of
the Interior, for appellee.
Before GRONER, Chief Justice, and STEPHENS and MILLER, Associate Justices.
STEPHENS, Associate Justice.
This is an appeal from an order of the District Court of the United
States for the District of Columbia dismissing, upon motion of the
appellees, an amended bill of complaint. The bill was filed by the
appellants Red Canyon Sheep Company, Willis R. Lovelace, and Frank
Maxwell. They sought to enjoin the Secretary of the Interior and the
Commissioner of the General Land Office from conveying to one C. M.
Harvey certain lands located in what is known as Grazing District No. 4,
established in New Mexico under the Taylor Grazing Act of June 28,
1934, 48 Stat. 1269, as amended by 49 Stat. 1976, 43 U.S.C.A. §§
315-315p. From the allegations of the bill, which under the motion to
dismiss must be taken to be true, and from certain enactments of the
Congress of which we take judicial notice, the following appears:
More than 25 years before the filing of the bill the appellants entered into the sheep
[98 F.2d 311]
business in New Mexico. Pursuant to the customs there prevailing, which
had both local and Federal sanction, they drilled for water upon arid
public lands, developed producing wells, secured title to the lands upon
which the wells were developed, and commenced and continued to graze
sheep upon the adjacent public domain. The sparsity of grass and forage
in the region in question is such as to require from one to two sections
of land to furnish sustenance for 100 sheep or 20 cattle during the
grazing season; and only such persons as have wells for stock watering
purposes can successfully make use of the public domain as a means of
engaging in the stock industry, there being few springs or running
streams of water thereon. The appellants, in developing their wells,
expended large sums of money and they have built up a substantial
livestock business.
In 1922 the Congress enacted the first of a series of statutes
1
authorizing the Secretary of the Interior to exchange public lands —
whether located within or without the boundaries of a national forest —
for privately owned lands located within such a forest, if the Secretary
of Agriculture regarded it as desirable to include, within the publicly
owned area, the private lands proposed for exchange. On August 15,
1929, C. M. Harvey, above named, was the owner of certain lands lying
within the borders of the Lincoln National Forest in New Mexico;
pursuant to the Act of February 7, 1929, he proposed to the Secretary of
the Interior that an exchange be made of his lands for the very lands
in New Mexico, located outside the Forest, upon which the appellants
had, as above described, long been grazing their sheep. In 1932 the
Department of the Interior suspended action on this proposal for
exchange on the ground that it was not authorized by the then existing
statutes. But in 1935 negotiations were renewed; the Department of the
Interior then took the position that an Act of June 25, 1935, 49 Stat.
422, 16 U.S.C.A. § 486 note, had removed the obstacles to the exchange
theretofore thought to exist, and, by an order of March 17, 1936,
dismissed a protest which the appellants had filed against the exchange.
It is the consummation of this exchange which the present suit seeks to
restrain.
On June 28, 1934, the Taylor Grazing Act was passed, the pertinent
provisions of which we set out later in this opinion. By that Act the
Secretary of the Interior was authorized to create districts for grazing
purposes upon the public domain, and to grant grazing permits to users
of the range who complied with regulations to be laid down by the
Secretary under the Act. In order to carry out the purposes of the Act,
the President, by an Executive Order of November 26, 1934, No. 6910,
withdrew from settlement, location, sale or entry all vacant,
unreserved, and unappropriated public lands in New Mexico, pending
further classification and determination of the most useful purposes to
which they might be put in consideration of the provisions of the Act,
and for conservation and development of national resources. In
compliance with the provisions of the Act, on April 8, 1935, the
Secretary of the Interior created a grazing district in New Mexico known
as Grazing District No. 4, and this embraced, among others, the very
lands which the appellants had been using for grazing purposes. The
Secretary then granted to the appellants, pursuant to regulations issued
under the Act, interim permits, called licenses, to graze their flocks
over these very lands.
2
The issuance of these licenses was based — so it is alleged in the bill
— upon a determination by proper officials of the Interior Department
that each of the appellants was a person who could most economically
make use of the lands in question for grazing purposes; and who was
therefore entitled to priority under the regulations promulgated by the
Department.
As a foundation for equitable relief the bill alleges that, if the
proposed exchange is consummated, the appellants' privately owned land
and the improvements thereon adjacent to the grazing district will
become valueless, that the appellants will be unable to secure other
public lands for grazing purposes, and that they will be compelled to
retire from the sheep business in which they are now engaged. Further,
it is alleged that the appellants have exhausted their administrative
remedies and have no adequate remedy at law. The bill prays that an
order be made restraining the appellees, and all persons claiming to act
under their authority or control, from conveying or attempting to
[98 F.2d 312]
convey any of the lands in Grazing District No. 4 in respect of which
licenses have been issued to the appellants, and also from taking any
action in derogation of the appellants' rights.
The appellees requested the trial court, and in their brief request
this court, to take judicial notice of the proceedings in the Interior
Department relating to the Harvey application for an exchange. This we
may do. Cf. Santa Fé Pac. R. R. v. Payne, 50 App.D.C. 95, 267 F. 653
(1920); United States v. Brewer-Elliott Oil & Gas Co., 249 F. 609
(D.C.W.D.Okl.1918). The only fact thus added is that after an adverse
opinion by the Solicitor of the Department in 1932 on the 1929 proposal
for exchange, the Secretary of the Interior did not reject the
application outright, but suspended action on it to await enabling
legislation.
The appellees moved to dismiss the bill upon the grounds that the
appellants lacked any interest to maintain the suit in that they had no
vested interest in the lands and did not show themselves entitled to a
patent; that Harvey had a valid existing right in the lands prior to the
Executive Order of 1934, which right was saved from the operation of
that order; that in any event the proposed exchange was legally
authorized under a proper construction of the Act of 1935 above referred
to; and finally, that the appellants had an adequate remedy by a suit
at the situs of the land, if a patent were erroneously issued to Harvey.
The motion of the appellees was granted by the trial court, and it is
from the order granting the motion and dismissing the appellants' bill
that the appeal is taken.
The appeal presents the following questions: I. Has a court of equity
jurisdiction to protect the claimed rights of the appellants? II. If
so, is the proposed transfer a wrongful invasion of those rights, so
that equity jurisdiction may be invoked? Thereunder, had Harvey a valid
and existing right which was saved from the operation of the Taylor
Grazing Act and the Executive Order of 1934; and does the Act of June
25, 1935, authorize the transfer? III. If points I and II are answered
in the affirmative, then should a court of equity in the circumstances
of the instant case exercise its jurisdiction to protect the appellants?
Thereunder, is the Act of June 25, 1935, so doubtful in meaning that
the Secretary's discretion is not to be controlled by mandatory
injunction; have the appellants an adequate remedy by a suit in New
Mexico to impress a trust upon the lands in question after consummation
of the proposed exchange; and should the asserted power of the Secretary
under the Taylor Grazing Act to reclassify the lands in a grazing
district, drop them therefrom, and then effectuate a transfer, prevent
the issuance of an injunction if the same is otherwise warranted?
I.
Has a court of equity jurisdiction to protect the claimed rights of
the appellants? This question requires first an analysis of the Taylor
Grazing Act and a determination of the nature of the appellants' rights
thereunder. The pertinent provisions of the Act are as follows:
"Be it enacted . . . That in order to promote the highest use of the
public lands pending its final disposal, the Secretary of the Interior
is authorized, in his discretion, by order to establish grazing
districts or additions thereto and/or to modify the boundaries thereof .
. .. Nothing in this Act shall be construed in any way to diminish,
restrict, or impair any right which has been heretofore or may be
hereafter initiated under existing law validly affecting the public
lands . . . .
"Sec. 2. The Secretary of the Interior shall make provision for the
protection, administration, regulation, and improvement of such grazing
districts as may be created under the authority of the foregoing
section, and he shall make such rules and regulations and establish such
service, enter into such cooperative agreements, and do any and all
things necessary to accomplish the purposes of this Act and to insure
the objects of such grazing districts . . . .
"Sec. 3. That the Secretary of the Interior is hereby authorized to
issue or cause to be issued permits to graze livestock on such grazing
districts to such bona fide settlers, residents, and other stock owners
as under his rules and regulations are entitled to participate in the
use of the range, upon the payment annually of reasonable fees in each
case to be fixed or determined from time to time . . . . Preference
shall be given in the issuance of grazing permits to those within or
near a district who are landowners engaged in the livestock business,
bona fide occupants or settlers, or owners of water or water rights, as
may be necessary to permit the proper use of lands, water or water
rights owned, occupied, or leased by them, except that until July 1,
1935, no preference shall be given in the
[98 F.2d 313]
issuance of such permits to any such owner, occupant, or settler, whose
rights were acquired between January 1, 1934, and December 31, 1934,
both dates inclusive, except that no permittee complying with the rules
and regulations laid down by the Secretary of the Interior shall be
denied the renewal of such permit, if such denial will impair the value
of the grazing unit of the permittee, when such unit is pledged as
security for any bona fide loan. Such permits shall be for a period of
not more than ten years, subject to the preference right of the
permittees to renewal in the discretion of the Secretary of the
Interior, who shall specify from time to time numbers of stock and
seasons of use. . . . nothing in this Act shall be construed or
administered in any way to diminish or impair any right to the
possession and use of water for mining, agriculture, manufacturing, or
other purposes which has heretofore vested or accrued under existing law
validly affecting the public lands or which may be hereafter initiated
or acquired and maintained in accordance with such law. So far as
consistent with the purposes and provisions of this Act, grazing
privileges recognized and acknowledged shall be adequately safeguarded,
but the creation of a grazing district or the issuance of a permit
pursuant to the provisions of this Act shall not create any right,
title, interest, or estate in or to the lands.
"Sec. 7. That the Secretary of the Interior is hereby authorized, in
his discretion, to examine and classify any lands withdrawn or reserved
by Executive Order of November 26, 1934 . . . or within a grazing
district, which are more valuable or suitable . . . for any other use
than for the use provided for under this Act, or proper for acquisition
in satisfaction of any outstanding lien, exchange or script rights or
land grant, and to open such lands to entry, selection, or location for
disposal in accordance with such classification under applicable
public-land laws . . . . Where such lands are located within grazing
districts reasonable notice shall be given by the Secretary of the
Interior to any grazing permittee of such lands . . . ." 43 U.S. C.A. §§
315a, 315b, 315f.
To support the proposition that the Act and regulations grant
rights
to participation in the use of the range, the appellants point to the
provision of Section 3, 43 U.S.C.A. § 315b "That the Secretary of the
Interior is hereby authorized to issue . . . permits . . ." and
particularly to the word
authorized, citing United States Sugar Equalization Board v. P. De Ronde & Co., 3 Cir.,
7 F.2d 981 (1925), and West v. United States, 58 App.D.C. 329,
30 F.2d 739 (1929). The De Ronde Case holds that the word
authorized,
as used in a Joint Resolution of the Congress, 42 Stat. 1226, although
diplomatic and permissive in form, was mandatory in fact. And the
holding of the West Case, involving the provision of the Leasing Act of
1920, 30 U.S.C.A. § 221, "That the Secretary of the Interior is hereby
authorized . . . to grant to any applicant qualified under this Act a
prospecting permit . . ." necessarily implies that the word
authorized as there used is mandatory. In reply the appellees rely upon United States ex rel. McLennan v. Wilbur,
283 U.S. 414,
51 S.Ct. 502, 75 L.Ed. 1148 (1931). That case involved the same
provision of the Leasing Act as did the West Case and since in the
Wilbur Case the Court refused to grant a writ of mandamus against the
Secretary of the Interior to compel him to receive and to act upon
applications for prospecting permits, the case impliedly overrules the
West Case. Cf. Wann v. Ickes, 67 App. D.C. 291,
92 F.2d 215 (1937). The view of the Supreme Court in the Wilbur Case seems to be that the word
authorized
is not necessarily mandatory; and the Court's reasoning is inconsistent
with the broad language of the Third Circuit in the De Ronde Case. But
we think that none of these cases can be said to control the
construction of the statute here involved. Whether
authorized is
to be construed as mandatory or permissive is a question which must be
determined in the light of the context and purpose of the particular
statute in which it is used.
We note that under the Taylor Grazing Act the Congress has vested
discretion in the Secretary of the Interior to create grazing districts,
to establish and modify the boundaries thereof, and from time to time
to reclassify the lands therein for other purposes. And Section 3 of the
Act does not expressly speak of
rights to permits; it uses the terms
authorized and
entitled.
Nevertheless, looking at the Act in the light of its purpose and of its
provisions as a whole, we think that the Congress intended that under
it livestock owners, who, with their flocks, have been for a substantial
period of time
bona fide occupants of certain parts of the public domain, and who are able to make the most
[98 F.2d 314]
economic and beneficial use thereof because of their ownership of
lands, water rights, and other necessary facilities, and who can thus
bring themselves within a preferred class under the regulations by which
the Secretary is authorized to implement in more detail the general
policy of the Act, are entitled to grazing permits not exceeding ten
years in duration, should the Secretary create a grazing district
including that portion of the range which such livestock owners have
been occupying. By this we do not mean to rule upon the question whether
the Secretary may be required, by grazers who have been using a
particular portion of the public domain, to establish a grazing district
upon the lands so used. Conceivably under the Act the Secretary might
in his discretion conclude that such lands were more valuable for
homesteading or other public purposes than for grazing. But we do
conclude that if the Secretary determines to set up a grazing district
including lands upon which grazing has been going on, then those who
have been grazing their livestock upon these lands and who bring
themselves within a preferred class set up by the statute and
regulations, are entitled as of right to permits as against others who
do not possess the same facilities for economic and beneficial use of
the range. Therefore in view of the allegations of the bill that the
appellants have such adjacent land holdings, water rights, and other
facilities as to bring them within a preferred class under the
regulations, we are of the view that the interim licenses which have
been temporarily issued to them must, under the Act, ripen into permits,
provided that Grazing District No. 4, which has been set up so as to
include the lands upon which the appellants have been running their
sheep, continues to exist and to include such lands. The purpose of the
Act seems to be at least twofold. First, it is designed to provide for
the most beneficial use possible of the public range in the interest not
only of the grazers themselves but also of the public at large. The
livestock industry of the West is an important source of food supply for
the people of the nation. In the arid regions of the West commercial
success in the livestock industry requires that sheep and cattle be run
upon the open range. This is a matter of common knowledge. Second, the
Act is intended, in the interest of the stock growers themselves, to
define their grazing rights and to protect those rights by regulation
against interference.
Urging that the appellants have no rights which are the proper
subject of equitable protection, the appellees rely upon such cases as
Buford v. Houtz,
133 U.S. 320, 10 S.Ct. 305, 33 L.Ed. 618 (1890); Omaechevarria v. Idaho,
246 U.S. 343, 38 S.Ct. 323, 62 L.Ed. 763 (1918); Sparks v. Pierce,
115 U.S. 408,
6 S.Ct. 102, 29 L.Ed. 428 (1885); and The Yosemite Valley Case, 15
Wall. 77, 21 L.Ed. 82 (1872). They rely also upon Fisher v. Rule,
248 U.S. 314, 39 S.Ct. 122, 63 L.Ed. 263 (1919); Burke v. Southern Pac. R. R.,
234 U.S. 669,
34 S.Ct. 907, 58 L.Ed. 1527 (1914); and Campbell v. Weyerhaeuser, 8
Cir., 161 F. 332 (1908). We think none of these cases is determinative
of the question under discussion. So far as here applicable, Buford v.
Houtz and Omaechevarria v. Idaho indicate that the Supreme Court has not
regarded customary grazing as the predicate of a vested right, either
in grazing itself or in the lands upon which grazing was conducted.
Similarly, Sparks v. Pierce and The Yosemite Valley Case hold that
settlement and making improvements upon public lands confers no vested
right in the lands. Fisher v. Rule, Burke v. Southern Pac. R. R., and
Campbell v. Weyerhaeuser reflect the rule that one attacking a patent
must succeed not upon the basis of the weakness of the patent but upon
the showing of a better title in himself. All of these cases were
decided before the enactment of the Taylor Grazing Act, and without
reference to its possible effect. Moreover, the three cases last named
do not answer the problem of the instant case, because each involved a
situation where both parties claimed a right in the land itself or a
right to require a patent to the land. The appellants in the instant
case make no such claims.
Only a few cases in the state courts have considered whether
livestock growers may resort to an injunction to protect grazing
privileges. Bradshaw v. Burstedt, 50 Idaho 54, 293 P. 330 (1930); Allen
v. Bailey, 91 Colo. 260, 14 P.2d 1087 (1932); George v. Chickasaw Land
Co., 209 Ala. 648, 96 So. 781 (1923). Bradshaw v. Burstedt involved an
Idaho statute which forbade, under criminal penalties, the grazing of
sheep upon a range which had customarily been used as a cattle range.
The plaintiffs were cattle men who sought to enjoin the grazing of sheep
upon certain parts of the public domain which they alleged to have
become cattle ranges under the statute because of 20 years prior use.
They urged a liberal application of the
[98 F.2d 315]
principle of injunctive relief "in the protection of pecuniary interest
as distinguished from the older doctrine of protecting only . . .
strictly property rights." The court denied the injunction. Its decision
was based, however, largely upon the proposition that, while as a
protective measure the State could exercise its police power to forbid
the pasturing of sheep upon that portion of the public domain upon which
cattle had theretofore been pastured, it could not, and by the statute
did not attempt to grant any grazing rights in the public domain, since
any such rights should come from the Federal government. In Allen v.
Bailey a similar Colorado statute containing a specific provision for
the granting of an injunction was held constitutional. In George v.
Chickasaw Land Co., the court held that the interest of one who had been
permitting his cattle to run at large upon the public domain was not
sufficient to permit him to attack the constitutionality of a statute
which prohibited this. The general premise of this case is like that of
Buford v. Houtz, Omaechevarria v. Idaho, Sparks v. Pierce, and The
Yosemite Valley Case, previously discussed.
We have found but one case in the Federal courts, Mumford v. Rock
Springs Grazing Ass'n, 8 Cir., 261 F. 842 (1919), wherein injunctive
relief against interference with grazing privileges upon the public
domain was sought. There the plaintiffs alleged that the defendants were
interfering with the plaintiffs' right of access to the public domain
for grazing, and sought to restrain the defendants by injunction. The
court held that the plaintiffs' proofs did not support their
allegations, and accordingly denied the injunction. The opinion,
however, assumes the existence of equity jurisdiction, and the court
said therein:
"A different situation would be presented, here, if the record
disclosed appellant and others similarly situated in a position where it
was necessary to drive sheep, in the control of those in charge, over
the lands of the appellee to reach the government lands, that a demand
had been made upon the appellee for a reasonable way, and that appellee
had failed or refused to designate such reasonable ways; such refusal
being accompanied by proof of threats preventing appellant and others
similarly situated from designating and using such a reasonable way."
[261 F. at page 849]
These state and Federal cases also do not, we think, determine the
question whether the appellants' rights are such as a court of equity
has jurisdiction to protect. We recognize that the rights under the
Taylor Grazing Act do not fall within the conventional category of
vested rights in property. Yet, whether they be called rights,
privileges, or bare licenses, or by whatever name, while they exist they
are something of real value to the possessors and something which have
their source in an enactment of the Congress. The jurisdiction of equity
is flexible and should not be confined to rigid categories so that the
granting of an injunction will depend upon nomenclature rather than upon
substance. Pomeroy emphasizes this flexibility in stating the basis for
equitable relief by injunction:
"Wherever a right exists or is created, by contract, by the ownership
of property or otherwise, cognizable by law, a violation of that right
will be prohibited, unless there are other considerations of policy or
expediency which forbid a resort to this prohibitive remedy . . . . This
jurisdiction of equity to prevent the commission of a wrong is,
however, modified and restricted by considerations of expediency and
convenience which confine its application to those cases in which the
legal remedy is not full and adequate." [4 Pomeroy, Equity Jurisprudence
(4th Ed.1918) § 1338]
There are well known situations where equitable protection is
accorded to rights or interests which do not come within the category of
vested interests in property. Among these are cases involving water
rights, both the rights recognized under the rule of prior appropriation
in the Western states and riparian rights. While the owner of a water
right has a vested interest in that right, the right itself is something
less than the full ownership of property because it is a right not to
the corpus of the water but to the use of the water. Gunnison Irrigation
Co. v. Gunnison Highland Canal Co., 52 Utah. 347, 174 P. 852 (1918).
For example, in Luxen v. Town of Rifle, 100 Colo. 540, 69 P.2d 251
(1937), the plaintiff and the defendant municipal corporation had, under
a decree establishing priorities, equal rights in time and volume to
the use of water in a creek. When the flow decreased in volume, the
municipal corporation diverted the entire stream. The plaintiff was held
entitled to enjoin its so doing. In Lambrix v. Frazier,
[98 F.2d 316]
31 Idaho 382, 171 P. 1134 (1918), the plaintiffs had "a permit right"
to the use of certain waters, and although they had completed diversion
works and had substantially complied with the terms of the permit, they
had not fully completed the process of appropriation. It was held that
they were the owners of "an inchoate, contingent right" which might
properly be protected by injunction against interference [the opinion
does not disclose its nature] which would prevent "respondents from
ripening their incipient interest into a complete appropriation." In
Wallace v. City of Winfield, 96 Kan. 35, 149 P. 693 (1915), and Roberts
v. Martin, 72 W.Va. 92, 77 S.E. 535 (1913), equitable protection against
interference with riparian rights was recognized. In both cases the
plaintiffs used the water to operate a mill, and the courts protected
their rights to the natural flow of the stream against diversion by an
upper riparian owner. See also Ulbricht v. Eufaula Water Co., 86 Ala.
587, 6 So. 78, 4 L.R.A.,N.S., 572, 11 Am.St.Rep. 72 (1889). Other cases
are collected in a note to this case in 4 L.R.A. 573. Cf. Caretti v.
Broring Building Co., 150 Md. 198, 132 A. 619, 46 A.L.R. 1 (1926)
(injunction granted to riparian owner against pollution of stream).
Another instance in which equity will extend its protection to a
right less than a vested right in the full sense of that term is
illustrated by the case of Ainsworth v. Munoskong Hunting & Fishing
Club, 153 Mich. 185, 116 N.W. 992, 17 L.R.A.,N.S., 1236, 126 Am.St.Rep.
474, 15 Ann.Cas. 706 (1908). There the complainants invoked the aid of
equity to prevent interference with their right, as members of the
general public, to hunt wild fowl upon the waters of the Great Lakes.
The defendant was a private hunting club owning lands upon the shore.
Its ownership, however, extended only to high or low water mark, where
the fee of the State of Michigan to the waters of Lake Michigan
commenced. The defendant claimed an exclusive right to hunt on the
waters adjacent to its clubhouse and caused its servants and agents to
interfere with the complainants who were hunting wild fowl, and the
defendant publicly threatened that it would continue to prohibit and
prevent all persons from hunting upon the waters in question. In that
case, exactly as in this, the facts appeared in a bill of complaint and a
demurrer raised the question whether a cause of action was stated which
entitled the plaintiffs to equitable relief. The court held that such a
cause of action was stated, and said:
"We think that this right is not merely a bare legal right, and
interference with it causes no substantial injury. To many people such
rights are highly prized, and their exercise valuable and necessary. To
hold that such rights are not of sufficient dignity that interference
therewith, and the prevention of their lawful exercise, and threatened
continuance of such interference, will be taken cognizance of by the
courts, and injury arising therefrom prevented, would be to deprive
complainants of such rights, and to encourage wrongdoers in the
assumption of the sovereign prerogative." [153 Mich. at page 191, 116
N.W. at page 994]
We think this case is apt because the right to hunt upon public
waters bears a striking analogy to the right or privilege of grazing
upon the public lands. Neither is an interest in the land itself, and
both are subject to restriction or withdrawal, the one by game laws, and
the other by laws in the interest of the protection of the public
domain; yet both are of value to the persons possessing them. In Council
v. Sanderlin, 183 N.C. 253, 111 S.E. 365, 32 A.L. R. 1527 (1922), the
court granted an injunction against interference with a grantor's
reserved right to hunt upon lands. This was of course, technically, a
profit à prendre, but in the opinion the court nevertheless remarked:
"Not only is an injunction, as well as an action for damages, a
proper remedy for the protection of an exclusive hunting privilege, but
if a member of the public is denied his common right to hunt on public
waters, the interference with this right may be enjoined. 9 R.C.L. 691,
and cases there cited." [183 N.C. at page 258, 111 S.E. at page 368]
We rule that the valuable nature of the privilege to graze which
arises in a licensee whose license will in the ordinary course of
administration of the Taylor Grazing Act ripen into a permit, makes that
privilege a proper subject of equitable protection against an illegal
act. To hold that the appellants' rights are not of sufficient dignity
to be entitled to equitable protection would be inconsistent with the
cases discussing other analogous subjects of equitable protection and
with the purposes of the Act itself.
However, the existence of equity jurisdiction to protect the appellants against
[98 F.2d 317]
a wrongful act may be approached from another and independent point of
view. Whatever may be said of the nature or quality of the right or
privilege to graze upon the public domain, it is clear that the
appellants' use of the public domain for grazing has not been, and is
not now, unlawful. On the contrary, the appellants have been lawfully
conducting a business of a valuable nature, and if the proposed transfer
of the lands by the Secretary is illegal, this lawful business will be
destroyed by an illegal act.
The protection by injunction of a lawful business against unlawful
acts is a well recognized head of equity jurisdiction, and this whether
or not the business depends upon a legally recognizable license, permit
or franchise. Thus the Supreme Court remarked in International News
Service v. Associated Press,
248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211, 2 A.L.R. 293 (1918):
"The rule that a court of equity concerns itself only in the
protection of property rights treats any civil right of a pecuniary
nature as a property right [citations] and the right to acquire property
by honest labor or the conduct of a lawful business is as much entitled
to protection as the right to guard property already acquired." [248
U.S. at page 236, 39 S.Ct. at page 71]
This may be illustrated by a number of cases which, although they
differ from each other and from the instant case in respect of the
nature of the illegal act involved, commonly recognize that the right to
carry on a business without illegal interference causing irreparable
damage is the subject of equitable protection by injunction. For
example, in Barthet v. City of New Orleans, 24 F. 563 (C.C.E.D.La.1885),
the complainant had erected, within the city limits of New Orleans,
buildings for the purpose of carrying on the business of slaughtering
cattle, and he was about to commence such business when a city ordinance
was passed forbidding the maintenance of slaughterhouses unless
permission was granted by the city council. The court held that the
ordinance was unconstitutional and that the complainant was entitled to
an injunction against its enforcement. In Evenson v. Spaulding, 9 Cir.,
150 F. 517, 9 L.R.A.,N.S., 904 (1907), the complainants were lawfully
engaged in the business of peddling buggies. Competitors caused their
agents to interfere with and prevent the complainants' sales "by
breaking in upon conversations, interrupting sales, and making false
representations as to the nature of the [complainants'] goods, and the
manner in which they treated the purchasers thereof and other offensive
acts." The competitors' purpose was not to sell goods, and thereby to
interfere with the sales of the complainants, but by pursuing a policy
of molestation to drive the complainants out of business. Equitable
relief by injunction was granted. In Goldfield Consol. Mines Co. v.
Goldfield M. U. No. 220, 159 F. 500 (C.C.D.Nev.1908), the complainant
was a mining company engaged in the business of mining, developing, and
operating the property of certain other corporations in which property
as such it had no interest although it did own stock in the
corporations. Its mining operations were interfered with by a labor
dispute. It was held to be entitled to injunctive relief in protection
of its right to carry on its business. The court said:
"The allegations of the bill show that complainant is engaged in the
business of mining, developing, and operating the property of these
corporations, and that respondents, unless restrained, will unlawfully
interfere with this business. The right to operate a mine and carry on
the business of mining therein is property, whether the operator owns
the mine or not. It is a right as distinct and real as the ownership of
the fee itself. If complainant has such right, it has the further right
to enjoy such property, and to operate the mines free from unlawful
molestation and interference, and it naturally follows that the power of
a court of equity may be invoked to protect such right, even though the
operator may not own the mine, or even a share of stock in the company
which does own the mine." [159 F. at page 512]
In American Mercury, Inc. v. Chase,
13 F.2d 224
(D. C. Mass. 1926), the appellants, interested in protecting the morals
of the reading public, engaged themselves in scrutinizing books and
magazines offered for sale. If they believed that a book or article
violated the law, they informed large distributors of their opinion,
with the intimation, express or implied, that if the book or magazine
were sold prosecution would follow. That practice was followed as to a
particular issue of the American Mercury magazine, and the appellants
avowed their intention to follow it in respect of future issues which
seemed to them objectionable. This seriously interfered
[98 F.2d 318]
with the sale of the magazine, and the American Mercury, Inc., sought
equitable relief. The opinion dealt largely with the question whether
the conduct of the appellants was illegal. An injunction was granted,
however, and the predicate of such relief was that the lawful business
of selling magazines was entitled to equitable protection against
illegal acts. See also Baker-Whiteley Coal Co. v. Baltimore & O. R.
R., 4 Cir., 188 F. 405, 416 (1911); Dittgen v. Racine Paper Goods Co.,
164 F. 84 (C. C. E. D. Wis. 1905).
II.
Is the proposed transfer of lands to Harvey by the Secretary of the
Interior an illegal act against which the appellants may invoke the
jurisdiction of equity?
The appellees defend the proposed transfer as legal upon the theory
that Harvey had, prior to the passage of the Taylor Grazing Act and the
issuance of the Executive Order of 1934 thereunder, a valid and existing
right to the consummation of the transfer. The Taylor Grazing Act
contains a saving clause:
"Nothing in this Act shall be construed in any way to diminish,
restrict, or impair any right which has been heretofore or may be
hereafter initiated under existing law validly affecting the public
lands, and which is maintained pursuant to such law except as otherwise
expressly provided in this Act . . . ." 43 U.S.C.A. § 315. And the
Executive Order of November 26, 1934, provided that: "The withdrawal
hereby effected is subject to existing valid rights."
Whether Harvey had a valid and existing right must be determined by
the Act of February 7, 1929, 45 Stat. 1154, under which he originally
applied for the transfer. That Act provided:
"That whenever the owner or owners of any privately owned lands,
situated . . . within the present boundaries of the Lincoln National
Forest, shall submit to the Secretary of Agriculture a proposal for the
exchange of said lands for lands upon the public domain situated
elsewhere in the State of New Mexico, and such Secretary shall be of
opinion that the acquirement of the same by the United States for
national-forest purposes would be beneficial thereto, he is hereby
authorized and empowered to transmit to the Secretary of the Interior
such offer so made to him, together with such recommendations as he may
see proper to make in connection therewith . . . and if he shall
recommend the acquirement of the same by the United States under the
provisions hereof, then, in such event, the Secretary of the Interior
shall be, and hereby is, authorized and empowered, in his discretion, to
enter into and conclude negotiations with such owner or owners thereof,
and in exchange for such designated privately owned lands, and upon
conveyance by the owner or owners thereof to the United States by a good
and sufficient deed, to cause to be patented to such owner or owners
such acreage of nonmineral, nonirrigable grazing lands not suitable for
agricultural purposes, except for raising grass, situated within the
said State of New Mexico. . . ."
On August 15, 1929, Harvey, being the owner of lands within the
borders of the Lincoln National Forest, filed an application with the
Secretary of the Interior proposing the exchange involved in this case.
3
After proceedings not necessary to mention, the Department of the
Interior suspended action on the application on December 8, 1932. This
suspension was based upon an opinion of November 30, 1932, by the
Department's Solicitor ruling that the Act of February 7, 1929,
contemplated that the deed for private lands to be exchanged for public
lands under the Act must be in fee simple without reservation. We refer
to this opinion in greater detail below. It appeared, and is not now
disputed, that Harvey's lands were subject to a reservation of mineral
rights in the State of New Mexico.
Under these circumstances we are unable to conclude that Harvey
acquired any rights by his application which were saved from the
operation of the Taylor Grazing Act or the Executive Order of 1934. The
only right granted by the Act of February 7, 1929, was a right to
propose an exchange of lands and to invoke the exercise of the
discretion of the Secretaries thereon. Whether an exchange should be
effectuated was left by the statute wholly within the discretion of the
Secretary of the Interior. Of course, that discretion
[98 F.2d 319]
was to be exercised upon considerations of public interest, but it was
nevertheless a discretion which an applicant could not as a matter of
law compel the Secretary to exercise in his favor. Hence the mere
application for an exchange by Harvey did not create any right in him.
And neither the subsequent proceedings referred to, nor the order of
December 8, 1932, suspending action on that application, could create a
right. Such a right could not arise at least until the Secretary
approved the proposed exchange.
The appellees cite no judicial authority for the proposition that
Harvey obtained a valid right to a transfer under the provisions of the
Act of February 7, 1929. They do cite an opinion of the Solicitor of the
Department of the Interior relating to the meaning of the phrase
"existing valid rights" used in the saving clause of the Executive Order
of November 26, 1934, 55 I. D. 205. The pertinent portions are as
follows:
"It is hardly practicable to give a precise and general definition of
the meaning of `existing valid rights', as used in the saving clause of
the said Executive order. The circumstances of each particular case
will have to be considered in applying that provision. . . .
"Of course, all valid entries are protected, and I believe also that
all prior valid applications for entry, selection, or location, which
were substantially complete at the date of the withdrawal should be
considered as constituting valid existing rights within the meaning of
the saving clause of the withdrawal order. . . . I believe this
protective provision should be generously applied." [55 I. D. at 210-11]
Since the Harvey application can hardly be accurately characterized
as an application for entry, selection, or location, the opinion seems
not to consider the precise problem with which we are here confronted.
Moreover, it will be noted that the Solicitor was careful to restrict
the opinion to prior
valid applications. The Solicitor in 1932
had ruled that Harvey's application could not validly be approved under
the then existing legislation because Harvey lacked an unrestricted fee
to the lands which he proposed to exchange; we cannot say, upon
examining the statute, that the Solicitor was plainly in error. Finally,
the opinion, so far as it may be thought to support the appellees'
point of view, represents only an administrative construction of the
statute and Executive Order, and while it is worthy of consideration, it
is not binding upon the court.
Our view that Harvey acquired no right saved under the Taylor Grazing
Act and the Executive Order of 1934 makes it unnecessary for us to
discuss Clipper Mining Co. v. Eli Mining & Land Co.,
194 U.S. 220,
24 S.Ct. 632, 48 L.Ed. 944 (1904), and Fisher v. Rule, mentioned supra
on another point, urged by the appellees for the proposition that the
effect of the suspension order of 1932 was to preserve the
status quo rather than to operate as a rejection of the Harvey application.
It is further contended, however, by the appellees that the Act of
June 25, 1935, 49 Stat. 422, 16 U.S.C.A. § 486 note, authorized the
proposed exchange of lands. This legislation apparently resulted from
the opinion of November 30, 1932, by the Solicitor of the Interior
Department, in which, as above indicated, he ruled that the Act of
February 7, 1929, required that a deed in fee simple without reservation
be given by parties to an exchange thereunder. He reasoned that the Act
of February 28, 1925, 43 Stat. 1090, which amended the Act of March 20,
1922, 42 Stat. 465, 16 U.S.C.A. § 486,
4
by providing that "Either party to an exchange may make reservations of
timber, minerals, or easements, the values of which shall be duly
considered in determining the values of the exchanged lands," could not
be read in connection with the Act of February 7, 1929, so as to permit
the reservation of mineral rights in an exchange thereunder, because by
the exchanges mentioned in the Act of 1925 were meant only those
authorized by the general Act of 1922, and not those authorized by
special legislation like the Act of 1929.
[98 F.2d 320]
The Solicitor advised, therefore, that further legislation would be necessary to authorize the Harvey exchange.
The Act of June 25, 1935, 49 Stat. 422, provided as follows:
"Be it enacted . . . that the provisions of section 2 of the Act of
Congress approved February 28, 1925 (43 Stat. 1090; U.S.C., title 16,
sec. 486), authorizing reservations by either party to an exchange under
the Act of Congress approved March 20, 1922 (42 Stat. 465; U.S.C.,
title 16, sec. 485), are hereby extended and made applicable to
exchanges of lands under the Acts of Congress approved February 14, 1923
(42 Stat. 1245), and February 7, 1929 (45 Stat. 1154), which authorize
the United States to acquire privately owned lands situated within
certain townships in the Lincoln National Forest in the State of New
Mexico, by exchanging therefor an equal value of unreserved and
unappropriated public lands within said State."
From this statute the parties seek to draw opposite conclusions. The
appellees contend that the Act specifically validates and authorizes the
Harvey exchange. On the other hand, the appellants assert that the Act
does not validate the transfer, but necessarily forbids it. They point
to the provision that the public lands in New Mexico to be exchanged for
privately owned lands in the Lincoln National Forest are to be
"unreserved and unappropriated public lands"; they point further to the
Executive Order of 1934, which expressly orders "that all of the vacant,
unreserved and unappropriated public land in . . . New Mexico . . . be,
and it hereby is, temporarily withdrawn from settlement, location, sale
or entry, and reserved for classification, and pending determination of
the most useful purpose to which such land may be put in consideration
of the provisions of said act of June 28, 1934, and for conservation and
development of natural resources." Thus, say the appellants, there was
no unreserved and unappropriated public land left within the State of
New Mexico after the Executive Order of 1934 which could be the subject
of exchange under the Act of February 7, 1929, as supplemented by the
Act of June 25, 1935.
We think that this position of the appellants is not assailable. The
language of the Act of June 25, 1935, which refers only to exchanges of
"unreserved and unappropriated public lands" is plain and unambiguous.
The appellees tell us that this limitation is but a relative clause
modifying the Act of 1929 and is merely explanatory thereof. Conceding
this, we are unable to see that it aids the appellees. On the contrary,
it seems to reinforce the view that under these enactments only
exchanges of unreserved lands are permitted. That is to say, even if the
Act of June 25, 1935, be looked upon as an explanation of, or
interpolation into, the Act of February 7, 1929, this results only in
giving that Act a meaning by which it authorizes only exchanges of
"unreserved and unappropriated lands."
The appellees tell us further that the legislative history
5 of the Act of June
[98 F.2d 321]
25, 1935, makes clear that it was passed as a recognition by the
Congress of Harvey's existing right, and for the purpose of validating
the proposed exchange. We have already ruled that Harvey had no existing
right. And we cannot, we think, properly consult the legislative
history, whether or not it may be said to show that the purpose of the
legislation was to validate the Harvey exchange. In the Act of June 25,
1935, we are dealing with language which, we think, is quite without
ambiguity, and under very well settled rules we cannot, under such
circumstances, resort to legislative history; we must abide the will of
Congress as plainly expressed. United States v. Shreveport Grain &
Elevator Co.,
287 U.S. 77, 53 S.Ct. 42, 77 L.Ed. 175 (1932); see Note, 70 A.L.R. 5, 14-16 (1929).
Finally, the appellees say that to construe the Act of June 25, 1935,
as not validating the proposed Harvey exchange is to render the Act
nugatory, and they cite Mills v. St. Clair County, 8 How. 569, 12 L.Ed.
1201 (1850), for the proposition that a statute will not be given a
construction
[98 F.2d 322]
rendering it nugatory. This argument again considers the statute
subject to two constructions rather than plain and unambiguous. But in
any event Mills v. St. Clair County hardly gives comfort to the
appellees. In that case the Illinois legislature had passed an act
granting to the complainant's assignor the right to run a ferry over the
Mississippi River from lands "that may belong to him", provided that
the ferry should be put into operation within 18 months from the passage
of the act. When the act was passed the complainant's assignor had no
lands, but within the 18 months' period he acquired lands which he and
the complainant subsequently used as a base for the ferry. The Supreme
Court held that the statute should be construed to cover the lands so
acquired and accordingly that the complainant's assignor had acquired a
valid grant. We think that this is much the same as construing the
present statute to mean that exchanges may be effected of lands which
may in the future become, by action of the Secretary of the Interior,
unreserved and unappropriated, and that the case does not at all compel
the conclusion that an exchange of presently reserved and appropriated
lands should be permitted. That is to say, the Act of June 25, 1935, is
not necessarily nugatory if it be said not to validate the proposed
Harvey transfer, because conceivably there may be in the future
unreserved and unappropriated lands upon which it can operate.
We reach the conclusion, therefore, that the proposed exchange is not
warranted upon the theory that Harvey had a valid and existing right
saved from the Executive Order of 1934, and that the exchange is not
authorized by the Act of June 25, 1935. Hence we reach the general
conclusion that the proposed transfer is an illegal invasion of the
asserted rights of the appellants which a court of equity has
jurisdiction to enjoin.
III.
We are confronted next with the question whether or not any
considerations exist which make improper the exercise of equity
jurisdiction in the instant case. In this aspect of the case the
appellees urge three points. First, they say that an injunction will not
issue, any more than will mandamus, to interfere with the discretion of
an administrative officer in construing a statute. The rule is, of
course, too well settled to require discussion that mandamus will not
issue to interfere with the discretion of an administrative officer in
construing a statute even though the court would construe the statute
otherwise, provided the officer's construction is reasonably possible.
United States ex rel. McLennan v. Wilbur,
283 U.S. 414, 51 S.Ct. 502, 75 L.Ed. 1148 (1931); Wilbur v. United States ex rel. Kadrie,
281 U.S. 206, 50 S.Ct. 320, 74 L.Ed. 809 (1930); Calf Leather Tanners' Ass'n v. Morgenthau, 65 App.D.C. 93,
80 F.2d 536
(1935). And we may concede, without ruling, that there is the same
limitation upon the issuance of an injunction to control the action of
administrative officers. Cf. Gaines v. Thompson, 7 Wall. 347, 19 L.Ed.
62 (1868). But the rule is not applicable in the instant case because,
as above pointed out, the Act of June 25, 1935, is plain and unambiguous
in its meaning, and therefore not subject to construction. Hence no
question of interference with an administrative officer's discretion is
involved.
Second, the appellees argue that an injunction should not issue
because where a patent to public land is involved the courts should not
interfere until the proceedings in the Department of the Interior have
been brought to a conclusion by the issuance of a patent; thereafter,
say the appellees, an aggrieved person will have an adequate remedy by a
bill in equity at the situs of the land patented to impress it with a
trust. And the appellees say that in the instant case, when the proposed
exchange to Harvey has been consummated and patent issued to Harvey,
the appellants may proceed in a proper court in New Mexico. The
appellees apparently liken the appellants' rights, if any, to an
equitable servitude, and say that when patent is issued to Harvey he
will take the land subject to this servitude just as the purchaser of a
reversion would take subject to an existing lease. The appellees rely
upon Brown v. Hitchcock,
173 U.S. 473, 19 S.Ct. 485, 43 L.Ed. 772 (1899), and State of Minnesota v. Lane,
247 U.S. 243,
38 S.Ct. 508, 62 L.Ed. 1098 (1918), for the proposition that the courts
will not interfere until the administrative process has ended with the
issuance of a patent to one of the contesting parties. The cases cited
support this proposition as a general rule. In Brown v. Hitchcock the
plaintiff's predecessor
[98 F.2d 323]
in title had acquired by purchase from the State of Oregon lands which
that State had selected under the Federal Swamp Lands Act of 1850, 9
Stat. 519. No patent for the lands had, however, been issued by the
United States. Subsequently, the Secretary of the Interior commenced
proceedings to cancel the selection made by the State of Oregon on the
ground that the lands selected were not swamp lands, and he proposed to
open the lands to entry by the general public. The plaintiff sued to
enjoin the Secretary of the Interior from such action. The Supreme Court
held that the injunction should not issue, stating that the appellant
must wait for his remedy until the lands had been patented to others and
the legal title had gone out of the United States. In State of
Minnesota v. Lane, an injunction was refused against the Secretary of
the Interior on similar grounds, the underlying dispute there being
between the State of Minnesota and a private corporation, each claiming
the same lands under different statutes. For the proposition that after
the issuance of a patent one claiming an equitable interest in the land
may sue the patentee at the situs of the land to impress a trust
thereon, the appellees rely upon United States v. Lane, 48 App.D.C. 279
(1919), and Cohen v. Fall, 52 App.D.C. 140, 284 F. 734 (1922). These
cases recognize such a right of action.
We are unable to conclude, however, that under any of these cases, or
the principles represented thereby, the appellants in the instant case
must be denied injunctive relief. In each of these cases the contest was
over title to the land itself, whereas in the instant case the
appellants assert a different type of right. We think it not to be
concluded that because one claiming outright title cannot have
injunctive relief prior to the issuance of patent, one claiming less is
a fortiori
not entitled to such relief. The underlying theory of Brown v.
Hitchcock and State of Minnesota v. Lane is that equity will not grant
relief where there is another adequate remedy, and United States v. Lane
and Cohen v. Fall recognize that one who asserts an equitable interest
in the land itself has an adequate remedy against a patentee. The
appellants in the instant case have no interest in the land itself, and
we think they have no such interest as may be said to be in the nature
of a servitude or the proper subject of a trust. Hence the remedy
recognized in United States v. Lane and Cohen v. Fall would seem not to
be available. But, as we have demonstrated in topic I of this opinion,
it does not follow that because the rights or privileges of the
appellants as licensee-permittees do not rise to the dignity of vested
interests in the land itself, such rights as the appellants have either
to the use of the lands during the existence of their licenses and
permits, or to the conduct of a lawful business, are not the proper
subjects of equitable protection.
Moreover, that the principle of Brown v. Hitchcock and State of
Minnesota v. Lane is not without exception is illustrated by Noble v.
Union River Logging R. R.,
147 U.S. 165, 13 S.Ct. 271, 37 L.Ed. 123 (1893), and Work v. Louisiana,
269 U.S. 250,
46 S.Ct. 92, 70 L.Ed. 259 (1925). In the Noble Case the Supreme Court
held that one Secretary of the Interior could not revoke the decision of
his predecessor to the effect that the appellee railroad company was
entitled to a right of way under an Act of Congress, and that he might
be restrained from doing so by injunction. In Work v. Louisiana the
State of Louisiana sought an injunction in connection with its
prosecution of a swamp lands claim under the Acts of 1849 and 1850. The
bill alleged that the Secretary of the Interior had imposed upon the
State of Louisiana the burden of showing that the lands were non-mineral
and had denied its claim when it had not undertaken this burden. The
bill prayed that the Secretary be enjoined from taking further action in
enforcement of this ruling. The contention was made that the trial
court was without jurisdiction to entertain the bill because it was
premature in that it was brought before the Secretary had exercised his
jurisdiction to determine the character of the lands and while the claim
was still in the process of administration. But these contentions were
rejected by the Court, which held that, if the order exceeded the
authority conferred upon the Secretary by law and was an illegal act
done under color of his office, he might be enjoined from carrying the
order into effect. Certainly these two cases taken together demonstrate
that under some circumstances proposed action of the Secretary of the
Interior may be restrained by injunction even while proceedings are
still pending before the Department and before legal title to lands
about which there is
[98 F.2d 324]
dispute has passed from the government. We think that the instant case
also presents facts which warrant an injunction prior to the conclusion
of the administrative process.
Third, the appellees urge that under Section 7 of the Taylor Grazing
Act, 43 U.S.C.A. § 315f, the Secretary of the Interior may in his
discretion examine the lands within the Grazing District which are now
the subject of the appellants' licenses and which are now, under the Act
and the Executive Order of 1934, withdrawn from settlement, location,
sale or entry, may classify them as more valuable or suitable "for
acquisition in satisfaction of any . . . exchange . . . rights . . . and
. . . [may] open such lands to entry, selection, or location for
disposal in accordance with such classification under applicable
public-land laws . . . ." Thus, argue the appellees, the Secretary has
power under this section, coupled with the Act of June 25, 1935, legally
to consummate the proposed Harvey transfer; hence any injunction issued
in the instant case may be rendered futile, and therefore none should
be issued.
But we think that this argument against the issuance of an injunction
is not meritorious. It assumes both that the Secretary will seek to
consummate the proposed Harvey exchange in that manner under Section 7
and that he can lawfully do so. We think we ought not rule, even
impliedly, in the instant case that the Secretary either will or can so
effectuate the transfer. Whether he will desire to do so necessarily
involves questions of policy and discretion. The Secretary might
determine as a matter of policy that it would not be in the best
interests of the general administration of the Taylor Grazing Act to
drop lands from organized districts for exchange purposes. We should not
assume that he will come to a contrary decision. Moreover, we should
not decide, until the point is necessarily before us and we have the
benefit of argument thereon, whether the Secretary can legally
consummate the proposed exchange in that way.
Indeed, it seems contrary to proper equitable considerations to
decide, as we have decided, that the exchange, as now proposed to be
carried out, is illegal and to refuse, nevertheless, to restrain it
because the same objective may conceivably be obtained in another manner
not illegal. To do this would in effect be to sanction the performance
of an act which is now illegal; for if we refuse to issue the
injunction, it can hardly be doubted that the transfer will be effected
in the very manner proposed in the instant case. At least we are bound
so to conclude under the motion to dismiss, which admits the allegations
so charging.
We are, moreover, not convinced that the instant case falls within
the class of cases in which equity refuses relief because to grant it
would be futile. Such cases involve situations wherein equity for some
physical reason cannot enforce a decree, for example, where
extraterritorial power would be required to do so, or wherein physical
performance is impossible, or situations wherein, a case having become
moot, relief would be futile. See,
e. g., Royal Fraternal Union
v. Lundy, 51 Tex.Civ.App. 637, 113 S.W. 185 (1908) (extraterritorial);
McCabe v. Watt, 224 Pa. 253, 73 A. 453, 24 L.R.A.,N.S., 274 (1909);
Cameron v. City of Carbondale, 227 Pa. 473, 76 A. 198, 28 L.R.A.,N.S.,
494 (1910) (difficulties of supervision); Hubrite Informal Frocks, Inc.
v. Kramer, 9 N.E.2d 570 (Mass. 1937) (moot).
The relief to be granted in the instant case must, however, be
reduced below that sought in the prayer. The prayer seeks an injunction
against the effectuation of the exchange, not only in the manner
proposed in the instant case, but in any manner. Such an injunction
would exclude the possibility of recourse to the provisions of Section 7
as suggested by the appellees. The injunction will issue against the
consummation of the exchange in the manner now proposed, but without
prejudice to a future ruling as to whether the Secretary has power to
carry out the transfer by dropping the lands from the district as it is
claimed he may do under Section 7. That question, for the reasons set
forth above, we shall not rule upon in advance.
Reversed and remanded for further proceedings in accordance with this opinion.
