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Opinion of the Court

MADDEN, Judge, delivered the opinion of the court:

The plaintiff brings this suit pursuant to a special Act of Congress which is quoted in finding 1. She alleges that her predecessor in title, the Colonial Realty Company, had a right, under an earlier Act of Congress, the Act of March 23, 1933, 48 Stat. 1295, quoted in finding 2, to exchange, approximately acre for acre, 1,420 acres of land owned by it for more desirable lands owned by the Government, but that the Government wrongfully refused to accept some 230 acres of land tendered by Colonial, and to convey that acreage of the more desirable land to Colonial. The plaintiff seeks an accounting and damages for the alleged violation of the 1933 statute.

The Act of March 23, 1933, was passed to compensate Colonial for previous damage caused by the United States to Colonial, the nature or circumstances of which are not disclosed by the record. The Act provided that

upon execution and delivery by the Colonial Realty Company of a deed *** to approximately one thousand four hundred and twenty acres of seeped and unproductive lands, as determined by the Secretary of the Interior,

in certain named sections of land in the Klamath irrigation project in Oregon, the Secretary was directed to issue to Colonial a patent for an equivalent amount of acreage of public land on the Tule Lake Division of the Klamath project in Oregon-California, the latter lands to be selected by Colonial from lands still available in the stated location.

About October 11, 1933, Colonial sent to the Secretary of the Interior a petition requesting the conveyance to it of approximately 1,400 acres which it had selected in the Tule Lake Division, and listing 1,397.7 acres of land which it proposed to give in exchange. On October 31 it tendered to the Secretary a deed conveying the same lands listed in the petition, except for minor variations.

On February 12, 1934, the First Assistant Secretary of the Department of the Interior transmitted Colonial's deed and other papers to the Commissioner of the General Land Office, instructing him to record the deed and issue to Colonial the patent "providing no other objection is found to exist." On

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February 24 the Acting Director, Division of Investigations, requested the Commissioner to withhold the recording of the plaintiff's deed and the issuance of the Government's patent to the plaintiff, "pending an investigation." The recording and the patenting were withheld. An investigation of charges of fraud on the part of Colonial took place.

On September 19, 1935, the Secretary advised the Commissioner of the Bureau of Reclamation that he had dismissed the charges of fraud, and that the Commissioner was "authorized to proceed, in cooperation with the Office of the Solicitor, to a final disposition of the Colonial Realty Company matter in accordance with existing law and in the light of the best interest of the United States." In March of 1935, the Commissioner directed one W. W. Johnston, a Bureau of Reclamation economist, to examine the lands tendered by Colonial for exchange to determine how many acres of such lands, in each legal subdivision, were "temporarily or permanently unproductive." Johnston was told that his determination should be guided solely by the actual quality of the land, without reference to any existing or prior classification. At about the same time a similar set of instructions was sent to a Dr. W. L. Powers, who was the head of the Soils Department of Oregon State College and the experimental stations.

Mr. Johnston and Dr. Powers made separate investigations and reports. The basis of classification which Dr. Powers used is shown in finding 14. On January 29, 1936, the Acting Commissioner of Reclamation sent to the Secretary a schedule of lands of Colonial regarded as eligible for exchange, that classification of them being based primarily on the report of Dr. Powers. The list of lands was then submitted to the Solicitor of the Department who rendered his opinion as to the title of Colonial to the lands which it proposed to exchange. A new deed had to be prepared for execution by Colonial. It conveyed 1191.35 acres, all but a minor portion of the amount found by the Department to be acceptable, according to Dr. Powers' investigation. The United States on October 20, 1936 issued its patent to Colonial for 1190 acres in the Tule Lake Division.

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On April 7, 1941, counsel for Colonial wrote a letter and a brief, addressed to the Secretary, requesting reconsideration of the exchange of lands.

The plaintiff urges that the Act of 1933 required the Secretary of the Interior to accept Colonial's deed for 1397.7 acres of land, tendered on October 31, 1933, and grant Colonial approximately that number of acres of Tule Lake land. She says that the Act of 1933, in using the expression "seeped and unproductive lands, as determined by the Secretary" referred to a determination made before the Act was passed, and not to a determination to be made in the future. The plaintiff's argument that there had been a determination before the Act was passed relies on a statement by the Commissioner of Reclamation which is quoted in S. Rept. 1159, 72d Cong., 2d Sess., with regard to Colonial's lands, that "*** the lands, or the greater part of them, are not suitable for cultivation." We think this statement, made in a report to Congress as to the Department's attitude to the bill, was not the determination referred to in the bill as to what lands were "seeped and unproductive." If this statement was regarded by Congress as a constructive lump determination that all of Colonial's lands were seeped and unproductive, there would have been no point in saying, as the statute said, that if more than 50 percent of any legal subdivision of the land was unproductive, that entire legal subdivision should be exchangeable.

The plaintiff also argues that the grammar and context of the statute show that a prior determination was contemplated. We think the grammar and context point in the other direction. If they did not, Congress would have left the parties completely at large, since there was no prior determination.

The plaintiff argues that the Secretary, in February 1934, approved the exchange on the basis of the deed for 1397.7 acres tendered by the plaintiff, and that he was arbitrary and wrong in thereafter refusing to complete the transaction on that basis. It will be remembered that the First Assistant Secretary did at that time send the pertinent papers to the Commissioner of the General Land Office directing him to record Colonial's deed and issue it a patent "providing no

Opinion of the Court

141 C. Cls. other objection is found to exist." No doubt the transaction would have been consummated on that basis if the Division of Investigations had not interposed a request for delay, pending an investigation for suspected fraud. As we have seen, the charges of fraud were ultimately dismissed by the Secretary.

During the delay, the Department apparently reconsidered the action which it had almost completed, and concluded that the statute did not direct a lump exchange of Colonial's land without a determination by the Secretary as to their quality. As we have indicated above, we think this reconsidered opinion was the correct one. The fact that the opportunity to reconsider was afforded fortuitously is immaterial. Until the transaction was consummated, the Government's officials had not only the right, but the duty to reconsider it.

The plaintiff says that, in any event, the Secretary's determination as to what lands were "seeped and unproductive" was wrong as to 127.4 acres of the 150.5 acres tendered by Colonial and not accepted for exchange. When the Secretary undertook to determine the quality of the lands, he requested two experts in soils to make separate investigations and reports. The two reports were not in agreement in all respects. The parties are in dispute as to which report was more favorable to the plaintiff's position. It is probably not possible, from the record, to resolve that dispute. In any event, the Secretary made his determination almost entirely on the basis of Dr. Powers' report.

We have no doubt that Congress, in imposing on the Secretary the duty to make the determination, contemplated that it would be made on the basis of investigations and reports by experts. The Department, in its Bureau of Reclamation, of course, relies heavily on experts with the training and experience of those used by the Secretary.

The Government urges that the determination by the Secretary, that function having been imposed upon him by the statute, was conclusive, if supported by substantial evidence. Since the Secretary's determination was, obviously, supported by substantial evidence, the Government says that the case ends there.

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The plaintiff says that Congress would have been wasting its words, and would have known that it was doing so, if it had merely authorized the plaintiff to bring this suit, but had loaded her with the impossible burden of persuading the court that the testimony of a recognized expert was not substantial. We are inclined to agree with the plaintiff. However, since the case has been tried de novo in this court, and we have the materials for deciding it without regard to presumptions or conclusiveness of administrative action, we need not decide the point raised by the Government.

We now consider the question whether 127.4 acres of the lands tendered by Colonial and not accepted by the Government, which lands the plaintiff contends were seeped and unproductive, were so, within the meaning of the 1933 Act. One of the plaintiff's contentions is that the Secretary did not follow the statutory provision that if more than 50 percent of the acreage of a legal subdivision was seeped and unproductive, the whole of the subdivision should be regarded as exchangeable. The question here is what Congress regarded as a legal subdivision. The plaintiff urges that a 40 acre tract, a quarter of a quarter section, is the smallest subdivision contemplated by the statute. In Government surveys of the land which had been made before the enactment of the statute, there were odd shaped tracts bounded on one or more sides by irrigation ditch or railroad rights of way or easements, or other irregular boundaries. These boundaries did not, of course, coincide with regular survey lines. The irregular shaped areas were designated on the surveys as "lots." The 1933 statute mentioned the fact that the "lots" did not correspond with legal subdivisions, in stating that, in order to avoid the expense of surveys to determine the exact acreage of the lots, the exchange might be made on the basis of approximate acreage. It then contains the proviso that "should any legal subdivision of the lands herein described consist of more than 50 per centum of unproductive land the whole subdivision" is exchangeable. The language in its context indicates that the plaintiff's interpretation is correct, and that the Government should have accepted the remaining 7.4 acres in the SESE1⁄4 of Section 21, as "constructively" seeped and unproductive.