Moran v. Horsky, 178 U.S. 205 (1900)

patent was^u^ CT a™ i^ f°!lows: On June 15’ 1872’ a County, Montana T pr?bate jud£e of Lewis and Clarke ern ory, for the townsite of Helena, in trust p. 206for the benefit of the occupants. In 1874 Joseph Horsky, Jr., the plaintiff below, defendant in error, became by purchases from prior occupants and conveyances from the probate judge the holder of the legal title to certain lots, shown on the plat of the town. He entered into occupation at the date of his purchase, and has been in undisturbed and peaceful possession from that time to the present. Among these lots are two known and described as lots Nos. 19 and 20, in block 37, on the original plat of the townsite. Subsequent surveys disclosed that, measured by the description on the plat and the calls of the deed, there was an extra area of ground 22 feet front by 103 feet deep. When that fact was discovered the grantor of the plaintiff applied to the probate judge for a conveyance of this extra ground, and paid him the requisite price therefor. However, he received no deed at that time, apparently supposing the deeds for lots 19 and 20 would carry the ground; but afterwards, and on December 15, 1888, on application of the plaintiff, and upon the basis of the prior application and the payment of the necessary price, the probate judge made a deed to him of that extra area known and described on a subsequent plat as lot 31, block 37. In 1891 he filed his complaint in the District Court of the First Judicial District of the State of Montana, setting forth these facts, and that the defendant, Patrick Moran, had, on December 11, 1888, obtained from the probate judge a deed for this lot 31, alleging that it was wrongfully obtained, and praying for a decree quieting his title.

The case thus presented was litigated in the state courts or two or three years, passed to the Supreme Court of the State, (13 Mont. 250,) where a decree in favor of the plaintiff was reversed, and finally came on for hearing in the District Go upon the bill of plaintiff, setting forth the facts, as above stat , and an amended answer of the defendant, containing these aver ments: That on the 2d day of March, 1869, the probate ju of Lewis and Clarke County made an entry of the tract o an for the benefit of the occupants of the townsite of Helena; prior to the entry of said town site a certain placer mining c had been located within the exterior limits of the trac so^ tered, which included within its boundaries the lot m c0 p. 207versy; that the location had been made pursuant to the laws of the United States, the local laws, and the rules and regulations of the mining district, and all had been done required thereby to make a perfectly valid location of said placer mining claim, and that the title to this mining claim thus located passed to the defendant; that it was a valid and subsisting mining claim at the time of the entry of the land by the probate judge and of the patent to him; that after the entry of the townsite, and prior to 1874, the defendant left the State of Montana, leaving the mining claim in possession of an agent; that during his absence the plaintiff obtained his deeds for the premises referred to, and entered into possession; that when the defendant returned to Montana he found the plaintiff in possession; that he had ever since been, by the action of the plaintiff, prevented from entering upon or working such mining claim; and that in December, 1888, finding that no deed had ever been made to the plaintiff for this portion of the property , he obtained in furtherance and protection of his own title a deed from the probate judge, which was the deed referred to in plaintiff’s complaint.

trial court*6*116 ^°Ur^ State affirmed the decree of the ^<^pendent)^1Tlla^í^^•O11 8round of laches. If this be an groun , involving no question under the Federal p. 208statutes, the decision of the Supreme Court must be sustained and the writ of error dismissed. Eustis n . Bolles, 150 U. S. 361.

At the time of the commencement of the several proceedings referred to in the bill and answer, the entire area of ground compassed within the limits of the townsite of Helena was public land of the United States, subject to be taken under the preemption, homestead, townsite or mineral laws. There was no reservation in behalf of any railroad company, or for military or other purposes. The whole tract was subject to private ap propriation. Under those circumstances, the probate judge o the county made an application for an entry of the tract, as a whole, as a townsite. His application was entertained, t e entry made, and thereafter a patent issued to him for the en tire tract, including the premises in controversy. Apparen y, therefore, by the terms of the patent the legal title to this an had passed to the probate judge in trust for the se^eia occu pants. But we are referred by counsel to Deffeback v. aw ' 115 U. S. 392, 393, in which it was held that a patent un e p. 209the townsite act is “ inoperative as to all lands known at the time to be valuable for their minerals, or discovered to be such before their occupation and improvement for residences or business under the townsite title; ” and this by virtue of the express provisions of the law relating to the disposition of lands for townsites, as follows: “ No title shall be acquired under the foregoing provisions of this chapter to any mine of gold, silver, cinnabar or copper, or to any valid mining claim or possession held under existing laws.” Rev. Stat. § 2392.

vol . CLXXVIII—14 p. 210abandoned it for years, yet as no one had taken steps to relocate it, he had the right to resume possession and continue work in the way of perfecting his title.

“But the distinction between a void and a voidable instrument, though sometimes a very nice one, is still a well recognized distinction on which valuable rights often depen . n the case before us is one to which we think it is clear y app cable. To the officers of the land department, among w o we include the Secretary of the Interior, is confide , as we already said, the administration of the laws concerning of the public domain. The land in the present case surveyed, and, under their control, the land in t a is erally had been opened to preemption, homeste p. 211sale. The question whether any particular tract, belonging to the government, was open to sale, preemption or homestead right, is in every instance a question of law as applied to the facts for the determination of those officers. Their decision of such question and of conflicting claims to the same land by different parties is judicial in its character.

“It is clear that the right and the duty of deciding all such questions belong to those officers, and the statutes have provided for original and appellate hearings in that department before the successive officers of higher grade up to the Secretary. They have, therefore, jurisdiction of such cases, and provision is made for the correction of errors in the exercise of that jurisdiction. When their decision of such a question is finally made and recorded in the shape of the patent, how can it be said that the instrument is absolutely void for such errors as these? If a patent should issue for land in the State of Massachusetts, where the government never had any, it would be absolutely void. If it should issue for land once owned by the government, but long before sold and conveyed by patent to another who held possession, it might be held void in a court of law on the production of the senior patent. But such is not the case before us. Here the question is whether this land had )een withdrawn from the control of the land department by certain acts of other persons, which include it within the limits o an incorporated town. The whole question is one of dispute law and disputed facts. It was a question for the land M r vi aRd decide before they determined to issue t AJ1 V was within their jurisdiction to do so. i they decided erroneously, the patent may be voidable, but not absolutely void.” u as„ weJlave heretofore noticed, the patent in the case On th6 fS °rf 6 towns^e purported to convey the entire tract. exrpnS aCe e ^^ent there was nothing to suggest any which fn t may ke conceded, under the authorities under thaf frred ^°’ that, in an action at law by a claimant of its k«« existence of a mining claim at the time of so mnnh^1^ t ke s^°wu and be a valid defence to a recovery o t e ground as was included within the mining p. 212claim, and in that view it may perhaps be not inaptly said that the patent was to that extent void. But be this as it may, whenever the invalidity of a patent does not appear upon the face of the instrument, or by matters of which the courts will take judicial notice, and the land is apparently within the jurisdiction of the land department as ordinary public land of the United States, then it would seem to be technically more accurate to say that the patent was voidable and not void. Even in cases where it has been called void the right of the United States to maintain a bill to set aside the patent has been sustained. Thus, in United States v. Stone, 2 Wall. 525, patents had been issued for certain lands, (which were in fact within the limits of Fort Leavenworth Military Reservation,) and a bill in equity was filed by the United States to set them aside. Mr. Justice Grier, delivering the opinion of the court, sustaining the decree of the Circuit Court in favor of the government, uses this language (pp. 535, 537):

“ I, Moroni Olney, of Box Elder County, Utah Territory being a citizen of the United States and the head o a am , have on the 23d day of April, 1869, settled and improve . S.W. | of section 29, township 11 north, of range 2 we , the district of lands subject to sale, at the lan o ce Lake City, Utah, and containing 160 acres, which lan yet been offered at public sale, and thus rendered su jec vate entry, and I do hereby declare my intention oca p. 217tract of land as a preemption right under the provisions of said act of 4th September, 1841.

It is true that there was then no local land office in which those seeking to make preemption or homestead entries could file their declaratory statements or make entries, and the want of such an office is made by the Supreme Court of the State one of the main grounds for holding that the land did not pass to the railroad company. We agree with that court fully in its discussion of the general principles involved in the failure of the Government to provide a local land office. The right of one who has actually occupied, with an intent to make a homestead or preemption entry, cannot be defeated by the mere lack o a place in which to make a record of his intent. In many tates the statutory provision in respect to suits is that the e en ant, on receiving service of summons, must within a certain time file his answer in the office of the clerk of the nnnn + 2 nnOt ke doubted that if, before he is thus called and tk° 6 18 ansvver office is burned, and the clerk dies, an ere ?^ace or ^dividual at which or with whom his hi« 6 SUCh acc^dent or omission will not defeat take fid t0 e a defence’ or give to the plaintiff a right to not the default. Where the accident or omission is cial of 0 t e party but of the Government, or someoffigox ernment, such accident or omission cannot defeat p. 220the right of the individual, and in all that is said in respect to this by the Supreme Court of the State of Utah we fully agree. If Olney was in possession of this tract before October 20,1868, with a view of entering it as a homestead or preemption claim, and was simply deprived of his ability to make his entry or declaratory statement by the lack of a local land office, he could undoubtedly, when such office was established, have made his entry or declaratory statement in such way as to protect his rights. But when the office was opened he filed his declaratory statement, and in that he did not suggest that he had been in the occupation of the premises prior to October 20, 1868, but declared that on the 23d of April, 1869, he settled and improved the tract. Assume that such declaration was subject to correction by him, that he could thereafter have corrected the mistake (if it was a mistake) and shown that he occupied the premises prior to October 20, 1868, with an intent to enter them as a homestead or preemption claim, he never did make the correction, and there is nothing in the record to show that his occupation prior to April 23, 1869, was with any intent to acquire title from the United States.

And in this respect we must notice the oft-repeated declaration of this court, that “ the law deals tenderly with one who, in good faith, goes upon the public lands with a view of making a home thereon.” Ard v. Brandon, 156 U. S. 537, 543; Northern Pacific Bailroad n . Amador, 175 U. S. 564, 567. With this declaration, in all its fulness, we heartily concur, and have no desire to limit it in any respect, and if Olney, the or^n entryman, was pressing his claims every intendment shoul in his favor in order to perfect the title which he was see mg to acquire. But when the original entryman, either because e does not care to perfect his claim to the land or because e is conscious that it is invalid, abandons it, and a score o years thereafter some third party comes in and attempts to isposs the railroad company (grantee of Congress) of its title aPP ently perfect and unquestioned during these many years does not come in the attitude of an equitable appe an consideration of the court. .j. It must be remembered that mere occupation o e P p. 221lands gives no right as against the government. It is a matter of common knowledge that many go on to the public domain, build cabins and establish themselves, temporarily at least, as occupants, but having in view simply prospecting for minerals, hunting, trapping, etc., and with no thought of acquiring title to land. Such occupation is often accompanied by buildings and enclosures for housing and care of stock, and sometimes by cultivation of the soil with a view of providing fresh vegetables. These occupants are not in the eye of the law considered as technically trespassers. No individual can interfere with their occupation, or compel them to leave. Their possessory rights are recognized as of value and made the subjects of barter and sale. Lamb v. Davenport, 18 Wall. 307. In that case it appeared that certain individuals settled on what is now the city of Portland, Oregon, and laying off a townsite distributed among themselves the lots. Thereafter they bought and sold those lots as things of value, and although such settlement was antecedent to any act of Congress authorizing it, their contracts in respect to the lots were sustained, the court, speaking by Mr. Justice Miller, saying (p. 314); “And though these rights or claims rested on no statute,

The original Union Pacific Railroad act (12 Stat. 492, sec. 3) excepted from the grant of the odd sections to the railroad company all those tracts to which an adverse right had attached “ at the time the line of said road is definitely fixed. does not in terms prescribe how or by what evidence it sha determined that the line of said road has become definite y fixed, and for many years after its passage, interpreting t s an other like railroad land grants, the ruling of the land department was that the line was definitely fixed whenever it was su veyed, staked out and marked on the face of the earth, n» States n . Winona <&c. Railroad, 165 U. S. 463, 473, an a at that time there was no adverse right the title of t e rai ro company was settled. Of course, this left such date one o determined by oral testimony, and so as to each in ivi ua numbered tract within the place limits of the gran e q tion of title was determined by evidence of the time o s ing, staking and marking on the face of the ear p. 223the railroad, and corresponding evidence of occupancy by an individual with a view to entry under the general land laws. No title, therefore, certainly passed to the railroad company until a patent had been issued to it; and, indeed, under the settled ruling that land which was held by a prior claim did not pass to the railroad company under its grant, it was doubtful whether even then it had received a title beyond challenge. This unfortunate uncertainty and instability of title continued until the decisions of this court in Van Wyck v. Knevals, 106 U. S. 360, and Kansas Pacific Railway Company v. Dunmeyer^ 113 U. S. 629, the first decided in October, 1882, and the latter in March, 1885. By those cases it was settled that the time . at which the title of the railroad company passed beyond question was that of the filing of an approved map of definite location in the office of the Secretary of the Interior. This eliminated all oral testimony, and established a date at which, by record, the title of the railroad company could be considered as definitely ascertained. In the latter of the two Oases, Kansas lacific Railway Company v. Dy^meyer^ the same elimination of oral testimony, the same reference to the record as determining all opposing rights of the individual entryman, was also ec ared. That was a case of a homestead entry, but as fi ve years prior thereto homestead and preemption entries had been p aced in the same category as far as respects the right of preiminary occupation, it is not strange that the court in that P'^on spo e generally of preemption and homestead entries, man T/®ferring to the rule in reference to the filing of the X M . “ the offlce of the Secretary of the Incourt,’ said the conclusions of the iiiX'XX01 mapoi definite location furnished also the

“ of the line bad been sold, or disposed of, or reserved, p. 224or a homestead or preemption claim had attached to any of them.”

“ In the light of these decisions the almost uniform prac of the department has been to regard land, upon which anen of record valid upon its face has been made, as appr,°Pria p. 225and withdrawn from subsequent homestead entry, preemption settlement, sale or grant until the original entry be cancelled or declared forfeited; in which case the land reverts to the government as part of the public domain, and becomes again subject to entry under the land laws.”

VOL. CLXXVIII—15 p. 226of such declaratory statement, and noting the same on the books of the local land office, is the official recognition of the preemption claim. While the cases of Kansas Pacific Railway Co. v. Dunmeyer, and Hastings (& Dakota Railway Co. v. Whitney, supra, involved simply homestead claims, yet, in the opinion in each, preemption and homestead claims were mentioned and considered as standing in this respect upon the same footing.”

If it be said that this rule ignores the privileges given to temporary occupants of land to make entry within a short time it must be said that it also denies the personal right of the railroad company to fix definitely its line of road. For when the company has by resolution of its directors established such line, and that has been marked on the ground by posts and stakes, it has done all required by the letter of the statute. If it said that the railroad company may, notwithstanding its per sonal action thereafter, vote to locate its road on a differen line, so on the other hand may it be said that the indivi ua occupant of a tract may abandon his thought of entry, an 5 making each of the parties’ rights, to wit, those of the raii r^ company and the individual, turn on a matter of recor , court simply gave definiteness and certainty to tne a sional grant. It was said in Missouri, Kansas & Texas p. 227way v. Kansas Pacific Railway, 97 U. S. 491, 497, repeated in United States v. Southern Pacific Railroad, 146 IT. S. 570, 598: “ It is always to be borne in mind, in construing a congressional grant, that the act by which it is made is a law as well as a conveyance, and that such effect must be given to it as will carry out the intent of Congress. That intent should not be defeated by applying to the grant the rules of the common law, which are properly applicable only to transfers between private parties.” And surely Congress in making a grant to a railroad company intended that it should be of present force, and of force with reasonable certainty. It meant a substantial present donation of something which the railroad company could at once use, and use with knowledge of that which it had received. It cannot be supposed that Congress contemplated that, as in this case, a score of years after the line of definite location had been fixed and made a matter of record, some one should take possession of a tract apparently granted, and defeat the company s record title by oral testimony, that at the time of the

l aS a grant’ an<^ recognizing that Congress must idenffT T a Present donation with reasonable certainty of in th1 C^10n’ court properly held that the records made land 6 ffi °e Secretary Interior and in the local the imp °U^ be conclusive as between the company and ivi ua entryman. And if the ruling at times may p. 228operate against an individual entryman it does so more frequently against the railroad company in preventing it from claiming rights existing at the time that it in fact definitely locates its line of road.

Recapitulating, we are of opinion that a proper interpretation of the acts of Congress making railroad grants like the one in question requires that the relative rights of the company an an individual entryman, must be determined, not by the act of the company in itself fixing definitely the line of its road, or y the mere occupancy of the individual, but by record evidence, on the one part the filing of the map in the office of the Secretary of the Interior, and, on the other the declaration or entry in the local land office. In this way matters resting on ora testimony are eliminated, a certainty and definiteness is gi to the rights of each, the grant becomes fixed and definite ; a while, as repeatedly held, the railroad company may notqu - tion the validity or propriety of the' entry man’s claim 0 its rights ought not to be defeated long years after i s i apparently fixed, by fugitive and uncertain testimony o tion; for if that be the rule, as admitted by counse or ant in error on the argument, the time will never come a p. 229it can be certain that the railroad company has acquired an indefeasible title to any tract.