Page:United States Reports, Volume 257.djvu/231

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150

OCTOBER TERM, 1921.

Opinion of the Court.

257 U. S.

appellants other than the Kern River Company claim under and through that company.

This suit in equity was brought by the United States to obtain (a) a cancelation of the Secretary's approval of the two maps on the ground that it was obtained fraudulently by falsely representing that the right of way was sought with irrigation as the main purpose and the development of electric power as a subsidiary purpose, when in truth the latter was the sole purpose, or (b) a judicial declaration and enforcement of a forfeiture of the right of way on the ground that, although granted on condition that it be used mainly for irrigation, it in fact has been used solely for developing electric power and its use for irrigation is precluded by a binding and continuing agreement on the part of the grantee. In the bill the first phase of the suit is set forth with greater precision and detail than are shown in the presentation of the other; but the other is there in full substance.^[1]

↑ The District Court, in a memorandum opinion, said: "There are two aspects of this bill. One charges fraud perpetrated upon the Government in the application for the grant. The other relies upon a forfeiture of the grant by reason of the alleged non-performance by the defendant of the condition subsequent in the grant or a breach of a continuing covenant." And also: "The defendant is not using the right of way for irrigation and never was so used it, and the plaintiff claims that the grant should be forfeited to the Government for failure to so use said light of way." The Circuit Court of Appeals, taking a different view, said: "This is not a suit to declare a forfeiture of a land grant for breach of condition, but the ordinary suit to set aside the approval of the Secretary of the Interior on the ground of fraud and mistake." The appellants, in their brief in this court, speak of the suit as one "seeking to forfeit the right of way" and also say: "The bill was brought against appellant, Kern River Company, on the ground that the right of way had been obtained by fraud and misrepresentation and upon the ground that appellant was using the right of way for purposes other than those for which it had been acquired, namely, for purposes other than irrigation or power purposes subsidiary to the main purpose of irrigation."

[1] The District Court, in a memorandum opinion, said: "There are two aspects of this bill. One charges fraud perpetrated upon the Government in the application for the grant. The other relies upon a forfeiture of the grant by reason of the alleged non-performance by the defendant of the condition subsequent in the grant or a breach of a continuing covenant." And also: "The defendant is not using the right of way for irrigation and never was so used it, and the plaintiff claims that the grant should be forfeited to the Government for failure to so use said light of way." The Circuit Court of Appeals, taking a different view, said: "This is not a suit to declare a forfeiture of a land grant for breach of condition, but the ordinary suit to set aside the approval of the Secretary of the Interior on the ground of fraud and mistake." The appellants, in their brief in this court, speak of the suit as one "seeking to forfeit the right of way" and also say: "The bill was brought against appellant, Kern River Company, on the ground that the right of way had been obtained by fraud and misrepresentation and upon the ground that appellant was using the right of way for purposes other than those for which it had been acquired, namely, for purposes other than irrigation or power purposes subsidiary to the main purpose of irrigation."

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