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Show ant. The defenses of equitable estoppel4 and laches 5 should be available in a suit brought by the Government for the purpose of trying title to real property or for ejectment. In cases where questions of adverse possession, equitable estoppel, and laches do not apply, persons who claim an interest in public land based upon good faith, undisturbed, unauthorized occupancy for a substantial period of time, should be afforded an opportunity to purchase or lease such lands. Genuine disputes between the Government and its citizens over real property titles do exist. They may be occasioned by differing interpretations of factual data, differing opinions on the application of legal principles, or both. Unless, however, the Government chooses to initiate litigation, it is virtually impossible for a private claimant to obtain a judicial resolution of title to lands which are claimed by the Federal Government. In any action brought against the Government to quiet title, i.e., to establish who the owner is, the Government has available to it the defense of sovereign immunity which it invariably asserts. The rule embodied in the defense of sovereign immunity is that the United States cannot be sued without its consent. It is an established legal doctrine of obscure origin. It has no constitutional or statutory basis and, while it has been said to be based upon the traditional immunity of the English Sovereign surviving by implication in Article III of the Constitution, as well as on the inability of the courts to enforce a judgment against the sovereign, the only respectable rationale for the doctrine acceptable to legal scholars is that the official actions of Government officials must be protected from interference by the judiciary. In our opinion, this rationale, however, does not support the application of the doctrine as a defense in a suit whose only purpose is to determine the validity of the Government's claim to title to land. If the Government's claim is good, it will be established and, if the claim is not good, the Government cannot be harmed by a judicial determination to that effect, for it will lose nothing which rightfully belongs to it. Furthermore, the Commission notes that as an historical matter, an apparent primary reason for reliance upon the doctrine of sovereign immunity in actions to try title to land claimed by the Govern- 4 A defense based upon a false representation or concealment of material facts by the plaintiff which was relied upon by the defendant in acting or refraining from acting. 5 Unreasonable delay, or the neglect to do something required by law, or to enforce a right at the proper time. ment was the lack of manpower in Federal land managing agencies to make the investigations required to defend the Government's claim on its merits. While this may have been a valid basis for the use of the doctrine as an absolute defense in such actions during the 19th century, these managing agencies now appear to have sufficient manpower to effectively assert any meritorious defense which the Government may have to such a suit. In suits brought by the United States against others to assert title to lands claimed by it, the defenses of laches and equitable estoppel are unavailable to the adverse claimant. This insulation stems from the legal contention that the Federal Government can never be bound by the unauthorized acts or assurances of its employees even when those mistakes are relied on by a citizen in good faith. These defenses are, however, available to the Government in consent suits brought against it. Believing as we do, that it is not an undue interference with the functions of the Government to require it to defend its claim to real property in a proper suit, the Commission finds no valid reason for placing the Government in a more advantageous position in suits brought by it to establish such a claim. Waiver of sovereign immunity in quiet title actions against the Government, and permitting the defenses of laches and equitable estoppel to be asserted in actions brought by the Government, would give no undue advantage to adverse claimants. They would be required to assert and prove their claims by competent evidence. The Government would not be required to surrender any of its property rights and would have all of the safeguards available to any litigant. Furthermore, laches and estoppel are equitable defenses. As the very terms imply, if permitted they could not be invoked to work an inequity against the Government as plaintiff in a proper action. Certainty of title is to be desired. So long as disputed Federal claims to lands exist without final resolution, there can be no certainty of title. The Commission finds that the advantage of final determination of such claims under the accepted rules of real property law in courts of competent jurisdiction outweighs any claimed disadvantage to the Government. The Commission also recommends that the doctrine of adverse possession be made applicable against the United States where land has been occupied in good faith. The principle that the United States cannot lose title to its lands by adverse possession by a private party is treated as axiomatic by the courts. This not only originated with the common law protection of the property of the sovereign, 261 |
