So long as a homestead entry, valid upon its face, remains a
subsisting entry of record whose legality has been passed upon by
the land authorities, and their action remains unreversed, it is
such an appropriation of the tract as segregates it from the public
domain, and precludes it from a subsequent grant by Congress.
A defect in a homestead entry on public land in Minnesota made
by a soldier in active service in Virginia during the war, caused
by want of the requisite residence on it, was cured by the Act of
Jane 8, 1872, "to amend an act relating to Soldiers' and Sailors'
Homesteads," 17 Stat. 333, c. 338, § 1 (Rev.Stat. §
2308).
While the decisions of the Land Department on matters of law are
not binding on this Court, they are entitled to great respect.
The case is stated in the opinion.
MR. JUSTICE LAMAR delivered the opinion of the Court.
This is an action, somewhat in the nature of a suit in equity,
originally brought in the District Court of Ramsey County,
Minnesota, by the Hastings & Dakota Railroad Company, a
corporation organized under the laws of that state, against Julia
D. and John Whitney to recover a tract of about eighty acres of
land situated in that county for which the defendants have a United
States patent. The material facts in the case are undisputed, and
are substantially as follows: by the Act of July 4, 1866, Congress
granted to the State of Minnesota, for the purpose of aiding in the
construction of a railroad from Hastings, through the counties of
Dakota, Scott, Carver, and McLeod, to such point on the western
boundary of the state as the legislature of the
Page 132 U. S. 358
state might determine, every alternate section of land,
designated by odd numbers, to the amount of five alternate sections
per mile on each side of the road. The act further provided
that
"in case it shall appear that the United States have, when the
lines or route of said roads are definitely located, sold any
section or part thereof granted as aforesaid, or that the right of
preemption or homestead settlement has attached to the same, or
that the same has been reserved by the United States for any
purpose whatever, then it shall be the duty of the Secretary of the
Interior to cause to be selected, for the purposes aforesaid, from
the public lands of the United States nearest to the tiers of
sections above specified so much land in alternate sections or
parts of sections, designated by odd numbers, as shall be equal to
such lands as the United States have sold, reserved, or otherwise
appropriated or to which the right of homestead settlement or
preemption has attached as aforesaid, which lands, thus indicated
by odd numbers and sections, by the direction of the Secretary of
the Interior, shall be held by said State of Minnesota for the
purposes and uses aforesaid."
14 Stat. 87, c. 168, § 1.
On the 7th of March, 1867, the Legislature of Minnesota accepted
this grant and transferred it over to the plaintiff. The railroad
company complied with all the terms and conditions of the acts of
Congress and of the Legislature of the State of Minnesota, and on
or about the 7th of March, 1867, definitely located its line of
road by filing its map in the office of the Commissioner of the
General Land Office.
The land which is the subject of this controversy fell within
what are known as the ten-mile limits of the aforesaid grant, when
the line of road was definitely located.
The case being brought on for trial on evidence produced by the
respective parties, the court made and filed its findings of fact
and conclusions of law, the essential parts of which are as
follows:
"Claiming to act under the provisions of section 2293 of the
Revised Statutes of the United States, one Bentley S. Turner, on
the 8th of May, 1865, then being a soldier in the army of the
United States, and actually with his regiment in the
Page 132 U. S. 359
of Virginia, made an affidavit and caused the same to be filed
in the local land office of the district wherein said land was
situate. Said affidavit was made before his commanding officer in
the State of Virginia, and stated that said Turner was the head of
a family, a citizen of the United States, and a resident of
Franklin County, New York. Application was made through one
Conwell, whom said Turner constituted his attorney for that
purpose, upon said affidavit, to enter said land as a homestead.
Said affidavit did not state that Turner's family or any member
thereof was residing on the land, or that there was any improvement
thereon, and, as a matter of fact, no member of his family was then
residing or ever did reside on said land, and no improvement
whatever had ever been made thereon by anyone. Thereupon, upon
being paid their fees by said Conwell, the register and receiver of
said land office allowed said entry, and the same stood upon the
records of said local land office and upon the records of the
General Land Office uncancelled until September 30, 1872, when said
entry was cancelled by the proper officers of the United States. It
does not appear that any specific reason was assigned for said
cancellation, nor does the reason for said cancellation appear,
save as it may be furnished by the facts aforesaid. On the 7th day
of May, 1877, without notice to the plaintiff, the defendant Julia
D. Whitney, then a single woman, by name Julia D. Graham, who has
since intermarried with said defendant John Whitney, did enter said
land at the local land office as a homestead, and thereafter, in
the usual course of business, the officers in charge of the General
Land Office of the United States caused a patent of the United
States for said land to be issued in due form, and delivered to
said defendant Julia, who ever since May 7, 1877, has been and now
is in the actual occupancy of said premises, holding the same under
said patent. Said land is of the value of six hundred dollars
($600.)"
After making these findings of fact and holding as a conclusion
of law that the alleged entry of Turner was absolutely void, that
the title to the land in dispute was, under the land grant to the
state, vested in the plaintiff, and that the entry
Page 132 U. S. 360
of Julia D. Whitney thereon was unauthorized and of no effect,
the court entered a decree in favor of the plaintiff in error.
On an appeal by the defendant to the supreme court of the state,
that decree was reversed, without any order for a new trial. Such
reversal, under the laws of Minnesota, is in effect the final
judgment of the highest court of that state in which a decision of
the cause could be had, and the case has been brought here by a
writ of error.
Section 1 of the Act of March 21, 1864, 13 Stat. 35, now section
2293 of the Revised Statutes, under which Turner's homestead entry
was made, provides as follows:
"In case of any person desirous of availing himself of the
benefits of this chapter, but who, by reason of actual service in
the military or naval service of the United States, is unable to do
the personal preliminary acts of the district land office which the
preceding sections require, and whose family, or some member
thereof, is residing on the land which he desires to enter, and
upon which a
bona fide improvement and settlement have
been made, such person may make the affidavit required by law
before the officer commanding in the branch of the service in which
the party is engaged, which affidavit shall be as binding in law,
and with like penalties, as if taken before the register or
receiver; and, upon such affidavit's being filed with the register
by the wife or other representative of the party, the same shall
become effective from the date of such filing, provided the
application and affidavit are accompanied by the fee and
commissions as required by law."
The question presented for our consideration is whether, upon
the facts found and admitted, the homestead entry of Turner upon
the land in controversy excepted it from the operation of the land
grant under which plaintiff in error claims title.
The doctrine first announced in
Wilcox v.
Jackson, 13 Pet. 498, that a tract lawfully
appropriated to any purpose becomes thereafter severed from the
mass of public lands, and that no subsequent law or proclamation
will be construed to embrace it or to operate upon it, although no
exception be made of it, has been reaffirmed and applied by this
Court in such a
Page 132 U. S. 361
great number and variety of cases that it may now be regarded as
one of the fundamental principles underlying the land system of
this country.
In
Witherspoon v.
Duncan, 4 Wall. 210, this Court decided, in
accordance with the decision in
Carroll v.
Safford, 3 How. 441, that "lands originally public
cease to be public after they have been entered at the land office,
and a certificate of entry has been obtained," and the Court
further held that this applies as well to homestead and preemption
as to cash entries. In either case, the entry being made, and the
certificate being executed and delivered, the particular land
entered thereby becomes segregated from the mass of public lands,
and takes the character of private property. The fact that such an
entry may not be confirmed by the land office on account of any
alleged defect therein, or may be cancelled or declared forfeited
on account of noncompliance with the law, or even declared void,
after a patent has issued, on account of fraud, in a direct
proceeding for that purpose in the courts, is an incident inherent
in all entries of the public lands.
In the light of these decisions, the almost uniform practice of
the department has been to regard land upon which an entry of
record valid upon its face has been made as appropriated and
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 a
part of the public domain and becomes again subject to entry under
the land laws. The correctness of this holding has been sustained
by this Court in the case of
Pacific Railway v. Dunmeyer,
113 U. S. 629, and
the principle applied to a railroad grant act which contained the
same exceptions as those embodied in the act under which the
plaintiff in error claims title to the tract in controversy. In
that case, a homestead claim had been made and filed in the land
office by one Miller, and there recognized by a certificate of
entry, before the line of the company's road was located.
Subsequently to the location, he abandoned his entry and took a
title under the railroad company, and his homestead entry was
cancelled. One G. B. Dunmeyer then entered the land under the
homestead
Page 132 U. S. 362
law, claiming that, by the cancellation for abandonment, it had
passed back into the mass of public lands, and was not brought
within the grant, and upon that claim ousted the defendant in
error, who afterwards brought his action against the railroad
company for a breach of covenant, obtaining a judgment in the court
below, which was afterwards affirmed by this Court. The Court said,
Mr. Justice Miller delivering its opinion:
"The record shows that on July 25, 1866, Miller made a homestead
entry on this land which was in every respect valid. . . . It also
shows that the line of definite location of the company's road was
first filed . . . September 21, 1866. . . ."
P.
113 U. S.
634.
"In the language of the act of Congress, this homestead claim
had
attached to the land, and it therefore did not pass by
the grant. Of all the words in the English language, this word
attached was probably the best that could have been used.
It did not mean mere settlement, residence, or cultivation of the
land, but it meant a proceeding in the proper land office, by which
the inchoate right to the land was initiated. It meant that by such
a proceeding a right of homestead had fastened to that land, which
could ripen into a perfect title by future residence and
cultivation. With the performance of these conditions the company
had nothing to do."
P.
113 U. S.
644.
"It is argued by the company that although Miller's homestead
entry had attached to the land, within the meaning of the excepting
clause of the grant, before the line of definite location was filed
by it, yet when Miller abandoned his claim, so that it no longer
existed, the exception no longer operated, and the land reverted to
the company; that the grant by its inherent force reasserted
itself, and extended to or covered the land as though it had never
been within the exception. We are unable to perceive the force of
this proposition."
Pp.
113 U. S.
639-640.
Page 132 U. S. 363
"No attempt has ever been made to include lands reserved to the
United States, which reservation afterwards ceased to exist, within
the grant, though this road, and others with grants in similar
language, have more than once passed through military reservations
for forts and other purposes, which have been given up or abandoned
as such reservations, and were of great value. Nor is it understood
that, in any case where lands had been otherwise disposed of, their
reversion to the government brought them within the grant. Why
should a different construction apply to lands to which a homestead
or preemption right had attached? Did Congress intend to pay that
the right of the company also attaches, and whichever proved to be
the better right obtained the land?"
P.
113 U. S.
641.
Counsel for plaintiff in error contends that the case just cited
has no application to the one we are now considering, the
difference being that in that case, the entry existing at the time
of the location of the road was an entry valid in all respects,
while the entry in this case was invalid on its face and in its
inception, and that this entry, having been made by an agent of the
applicant, and based upon an affidavit which failed to show the
settlement and improvement required by law, was, on its face, not
such a proceeding, in the proper land office, as could attach even
an inchoate right to the land.
We do not think this contention can be maintained. Under the
homestead law, three things are needed to be done in order to
constitute an entry on public lands: first, the applicant must make
an affidavit setting forth the facts which entitle him to make such
an entry; second, he must make a formal application; and third, he
must make payment of the money required. When these three
requisites are complied with and the certificate of entry is
executed and delivered to him, the entry is made -- the land is
entered. If either one of these integral parts of an entry is
defective -- that is, if the affidavit be insufficient in its
showing, or if the application itself is informal, or if the
payment is not made in actual cash -- the register and receiver are
justified in rejecting the application. But if, notwithstanding
these defects, the application is
Page 132 U. S. 364
allowed by the land officers, and a certificate of entry is
delivered to the applicant, and the entry is made of record, such
entry may be afterwards cancelled on account of these defects by
the commissioner, or on appeal by the Secretary of the Interior,
or, as is often the practice, the entry may be suspended, a hearing
ordered, and the party notified to show by supplemental proof a
full compliance with the requirements of the department, and, on
failure to do so, the entry may then be cancelled. But these
defects, whether they be of form or substance, by no means render
the entry absolutely a nullity. So long as it remains a subsisting
entry of record, whose legality has been passed upon by the land
authorities, and their action remains unreversed, it is such an
appropriation of the tract as segregates it from the public domain,
and therefore precludes it from subsequent grants. In the case
before us at the time of the location of the company's road, an
examination of the tract books and the plat filed in the office of
the register and receiver, or in the land office, would have
disclosed Turner's entry as an entry of record, accepted by the
proper officers in the proper office, together with the application
and necessary money -- an entry the imperfections and defects of
which could have been cured by a supplemental affidavit or by other
proof of the requisite qualifications of the applicant. Such an
entry attached to the land a right which the road cannot dispute
for any supposed failure of the entryman to comply with all the
provisions of the law under which he made his claim. A practice of
allowing such contests would be fraught with the gravest dangers to
actual settlers and would be subversive of the principles upon
which the munificent railroad grants are based. As was said in the
Dunmeyer case,
supra:
"It is not conceivable that Congress intended to place these
parties [homestead and preemption claimants on the one hand, and
the railway company on the other] as contestants for the land, with
the right in each to require proof from the other of complete
performance of its obligation. Least of all is it to be supposed
that it was intended to raise up, in antagonism to all the actual
settlers on the soil whom it had invited to its occupation,
Page 132 U. S. 365
this great corporation, with an interest to defeat their claims,
and to come between them and the government as to the performance
of their obligations."
A question somewhat analogous in principle to the one in this
case arose in
Newhall v. Sanger, 92 U. S.
761. In that case, Newhall claimed under a patent issued
to the Western Pacific Railroad Company, for land supposed to be
within the grant made by the Act of July 1, 1862, 12 Stat. 489, and
that of July 2, 1864, 13 Stat. 356, and Sanger claimed under a
subsequent patent which recited, among other things, that the
former patent had been erroneously issued. The land in controversy
had been within the boundaries of a claim made under a Mexican
grant which was pending in the Land Department of the United States
at the time the order withdrawing the railroad lands from entry was
made. The Mexican claim was rejected a few days thereafter because
of its fraudulent character. Under that state of facts, the
contention of the railroad company was that, the Mexican claim
having been declared in valid, the land in controversy became
subject to the operation of the granting acts, and therefore passed
to the company. But this Court declared otherwise, and held that
the land never became subject to the grant, and that the claimant
under the second patent had the better title.
In addition to this, section 2308 of the Revised Statutes
provides:
"Where a party, at the date of his entry of a tract of land
under the homestead laws or subsequently thereto, was actually
enlisted and employed in the army or navy of the United States, his
services therein shall, in the administration of such homestead
laws, be construed to be equivalent, to all intents and purposes,
to a residence for the same length of time upon the tract so
entered,"
etc.
That act is a curative act, or rather one putting a construction
upon the prior act of 1864, under which the Turner entry was made.
The effect of it is to declare service in the army or navy of the
United States by the applicant at the date of an entry made under
the act of 1864, equivalent to actual residence upon the land by
him. In that view of the case the affidavit
Page 132 U. S. 366
in the Turner entry was sufficient, for, in contemplation of
law, he was then residing upon the tract embraced in his entry.
The conclusion at which we have arrived is in harmony with the
later rulings of the Land Department.
See Graham v. Hastings
& Dakota Railroad (this case), 1 L.D. 382;
St. Paul
&c. Railway v. Forseth, 3 L.D. 446;
So. Minn. Railway
v. Gallipean, 3 L.D. 166;
Hastings & Dakota Railway v.
United States, 3 L.D. 479;
St. Paul &c. Railway v.
Leech, 3 L.D. 506;
Hastings & Dakota Railway v.
Whitnall, 4 L.D. 249, and many others of like tenor and
effect.
It is true that the decisions of the Land Department on matters
of law are not binding upon this Court in any sense. But on
questions similar to the one involved in this case, they are
entitled to great respect at the hands of any court. In
United
States v. Moore, 95 U. S. 760,
95 U. S. 763,
this Court said:
"The construction given to a statute by those charged with the
duty of executing it is always entitled to the most respectful
consideration, and ought not to be overruled without cogent
reasons. . . . The officers concerned are usually able men, and
masters of the subject. Not unfrequently, they are the draughtsmen
of the laws they are afterwards called upon to interpret."
See also Brown v. United States, 113 U.
S. 568,
113 U. S. 571,
and cases there cited;
United States v. Burlington &c.
Railroad, 98 U. S. 334,
98 U. S. 341;
Kansas Pacific Railroad v. Atchison Railroad, 112 U.
S. 414,
112 U. S.
418.
Other subsidiary questions have been argued by counsel for
plaintiff in error, but they are all virtually disposed of in the
foregoing.
For the foregoing reasons, we concur with the court below that
Turner's homestead entry excepted the land from the operation of
the railroad grant, and that upon the cancellation of that entry,
the tract in question did not inure to the benefit of the company,
but reverted to the government and became a part of the public
domain, subject to appropriation by the first legal applicant, who,
as the record shows, was the defendant in error Julia D. Whitney,
nee Graham.
The decree of the Supreme Court of Minnesota is
Affirmed.