A., being qualified to make a homestead entry, entered in good
faith upon public land within the indemnity limits of a railroad
grant, but not within the place limits. He demanded at the local
land office the right to enter 160 acres as a homestead. This was
refused on the ground that the tract was within the limits of the
grant, although at that time the land had not been withdrawn from
entry and settlement. This was subsequently
done, and the land conveyed to the railway company. A. remained
upon the land, cultivating it. In an action to recover possession
from him, brought here from a state court by writ of error,
held that the application was wrongfully rejected, and
that his rights under it were not affected by the fact that he took
no appeal.
These two cases may be considered together, for the initial fact
in defendant's (now plaintiff in error's) claim of right is the
same in each case. The actions were commenced by the respective
defendants in error as plaintiffs in the District Court of Allen
County, Kansas, the first to recover the possession of the north
half of the northeast quarter of section 11, township 26, range 20,
and the other to recover possession of the west half of the
southeast quarter of section 2, township 26, range 20. These two
tracts, each of 80 acres, adjoin and are so situated as to be the
subject of one homestead entry. Rev.Stat. §§ 2289,
2298.
The first of these tracts was on April 10, 1873, certified by
the United States to the State of Kansas, and by it on May 19,
1873, conveyed to the Missouri, Kansas and Texas Railway Company.
The second was patented November 3, 1873, by the United States
directly to the Missouri, Kansas and Texas Railway Company. The
respective plaintiffs hold under conveyances from the railway
company.
A jury having been waived, the cases were submitted to
Page 156 U. S. 538
the court upon certain admissions and the single testimony of
the defendant. No special findings of fact appear in the record,
but by both the trial and the supreme courts of the state, the
facts testified to as well as those admitted were treated as facts
in the case. Among the matters admitted were these:
"At the time defendant made settlement, he was duly competent to
make a legal homestead or preemption, and has ever since been duly
competent and qualified to make a valid homestead entry, and that
he still resides on said land, with a wife and six children, and
that he has all the required improvements to perfect a homestead or
preemption. It is admitted that the W. 1/2 of S.E. 1/4, sec. 2, 26,
20 E., was selected by the Missouri, Kansas and Texas Railway
Company April 14, 1873, and it was patented to said company the 3d
day of November, 1873, under the Act of Congress of July 26, 1866.
The N. 1/2 of the N.E. 1/4 of sec. 11, 26, 20 E., was selected by
both companies jointly -- Missouri, Kansas and Texas Railway
Company and L., L. & G. R. Co., August 8, 1872. This tract was
approved to the state for the M., K. & T. R. Co., April 10,
1873, under the Act of Congress of March 3, 1863. Both tracts were
selected as indemnity lands, and both tracts are over 12 miles from
both roads, and lie within the indemnity limits of both the L., L.
& G. and M., K. & T. R. Co. Said defendant also testified
that when said defendant settled on said land, he did it in good
faith and for the sole purpose of making it his homestead."
So much of defendant's testimony as bears upon his original
occupation of the 160 acres, and his first transaction at the
government land office, is as follows:
"The first work said defendant did on said land was about the
last of June, 1866; that he broke about two acres of prairie and
three hedge rows on said land, making about five acres in all. Then
I went to the U.S. land office at Humboldt, Kansas, which was on
the 14th day of July, 1866, and there I made out a homestead
application for said land, as described, and tendered the
application and the land office fees to the register of the U.S.
land office, of which Watson Stewart was register of said land
office, and at that time I was a single
Page 156 U. S. 539
man and over 21 years of age, a citizen of the United States,
and had never had the benefit of the homestead or preemption laws
of the United States; but said register, Watson Stewart, rejected
said application and fees, as he claimed, on the ground that said
land was situate within the granted limits of the L., L. & G.
R. Co., and was double minimum lands, and that he could not let me
homestead only 80 acres, as the land was double in price. Said
register advised me if I wanted said 160 acres that I could first
make a preemption filing on 80 acres of land, and put a house on
said land within 12 months, and prove up and pay for it at $2.50
per acre, and then I could homestead 80 acres more, and by that
plan I could get 160 acres; but said register told me that I could
change a preemption filing at any time if I wanted to into a
homestead; so I told said register, as he would not allow my
homestead, I would make a preemption filing on part of the land, as
he would not let me only on 80 acres; so he made out the filing,
and I paid him a fee of $2.00, which he said was the fee."
"A copy is hereto attached and admitted as in evidence:"
" Register's Office"
" No. 2115. Humboldt, Kansas, July 14th, 1866"
" I certify that Newton L. Ard has this day filed in this office
his notice to claim by right of preemption the west half of the
southeast quarter of section No. 2, in township No. 26 S., in range
No. 20 east, of the sixth principal meridian, in the State of
Kansas. $2,50 per acre, within R.R. limits."
" Watson Stewart"
"
Register"
"Said words and figures '$2.50 per acre, within R.R. limits,'
being written in red ink transversely across the face of the
certificate."
It also appears from his testimony that subsequently, and in the
fall of 1866 and the spring of 1867, he did further work on the
land, and built a house thereon; that about July 1, 1867, he again
went to the land office, but was told by Colonel N. S.
Page 156 U. S. 540
Goss, then the register, that he could neither change his
preemption into a homestead entry nor prove up under the preemption
law. In 1872, he made formal application to prove up on the land,
but his application was denied by the local land officers. From
this denial he prosecuted an appeal to the Commissioner of the
General Land Office, and thence to the Secretary of the Interior,
by both of whom the decision of the local land officers was
affirmed.
The judgments of the district court were in favor of the
plaintiffs, which judgments were afterwards affirmed by the supreme
court of the state on the ground that the legal title passed by the
instruments offered in evidence through the railway company to the
plaintiffs, and that the decision of the Land Department upon the
facts of defendant's occupation and improvements was conclusive as
against his equitable rights. To reverse these judgments, the
defendant sued out writs of error from this Court.
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the court.
As these lands were not within the place limits of either the
Leavenworth, Lawrence and Galveston Railroad or the Missouri,
Kansas and Texas Railway, and as they were within the indemnity
limits of both roads, it is not open to question that the
certification by the Land Department to the State of Kansas, and
the conveyance by it to the railway company of the one tract, and
the patent directly from the United States of the other, operated
to transfer the legal title to these two tracts to the railway
company, and also that the United States has no cause of action
against the railway company or its grantees to disturb the legal
title thus conveyed.
Kansas City, Lawrence &c. Railroad v.
Attorney General, 118 U. S. 682;
Page 156 U. S. 541
United States v. Missouri, Kansas & Texas Railway,
141 U. S. 358. But
it is equally clear under the authority of the last-cited case as
well as of many others that no adjudication against the government
in a suit by it to set aside a patent estops an individual not a
party thereto from thereafter setting up his equitable rights in
the land for which the patent was issued. Referring to allegations
in the bill of the United States in that case of matters very like
those presented here, MR. JUSTICE HARLAN, speaking for the Court,
said (page
141 U. S.
379):
"If the facts are as thus alleged, it is clear that the
Missouri-Kansas Company holds patents to land both within the place
and indemnity limits of the Leavenworth road which equitably belong
to
bona fide settlers who acquired rights under the
homestead and preemption laws which were not lost by reason of the
Land Department's having, by mistake or an erroneous interpretation
of the statutes in question, caused patents to be issued to the
company."
The question, therefore, is whether the cases disclose equitable
rights in the defendant superior to the claims of the railway
company. If his rights are only those which spring from his
preemption entry and subsequent occupation of the lands, it may
well be, as held by the supreme court of the state, that the
decisions of the Land Department upon the questions of fact are
conclusive against him. But we are of the opinion that the
testimony shows a right anterior to his preemption entry -- a right
of which he was deprived by the wrongful acts of the local land
officer and which he did not forfeit or lose by virtue of his
subsequent efforts to preempt the land. According to this
testimony, he had commenced improving the premises prior to July
14, 1866. He was qualified under the laws of the United States to
make a homestead entry. The land was not within the place limits of
either road, and had not been withdrawn by the Land Department from
entry and settlement, for the orders of withdrawal were not made
until March 19 and April 30, 1867. He had, therefore, on July 14th,
when he went to the land office, the right to enter the entire 160
acres as a homestead. This right he demanded. He made out a
homestead application for the land as described, and
Page 156 U. S. 542
tendered the application and the land office fees to the
register of the land office, but the register rejected the
application, giving as a reason therefor that the land was within
the granted limits of the Leavenworth, Lawrence and Galveston
Railroad, and was double minimum lands, and that 80 acres was the
limit of homestead entry of such lands. As to this matter of fact
the register was mistaken, and his rejection of the application was
wrongful, and denied to defendant that homestead entry which under
the law he was then entitled to. In the case of
Shepley v.
Cowan, 91 U. S. 330,
91 U. S. 338,
this Court said (after referring to the cases of
Frisbie v.
Whitney, 9 Wall. 187, and the
Yosemite
Valley Case, 15 Wall. 77):
"But while, according to these decisions, no vested right
as
against the United States is acquired until all the
prerequisites for the acquisition of the title have been complied
with, parties may, as against each other, acquire a right to be
preferred in the purchase or other acquisition of the land when the
United States have determined to sell or donate the property. In
all such cases, the first in time in the commencement of
proceedings for the acquisition of the title, when the same are
regularly followed up, is deemed to be the first in right. So, in
this case, Chartrand, the ancestor, by his previous settlement in
1835 upon the premises in controversy, and residence with his
family, and application to prove his settlement and enter the land,
obtained a better right to the premises, under the law then
existing, than that acquired by McPherson by his subsequent state
selection in 1849. His right thus initiated could not be prejudiced
by the refusal of the local officers to receive his proofs upon the
declaration that the land was then reserved if, in point of fact,
the reservation had then ceased. The reservation was asserted, as
already mentioned, on the ground that the land was then claimed as
a part of the commons of Carondelet. So soon as the claim was held
to be invalid to this extent by the decision of this Court in
March, 1862, the heirs of Chartrand presented anew their claim to
preemption, founded upon a settlement of their ancestor."
Within the authority of that case, we think the defendant
Page 156 U. S. 543
has shown an equity prior to all claims of the railway company.
He had a right to enter the land as a homestead; he pursued the
course of procedure prescribed by the statute; he made out a formal
application for the entry, and tendered the requisite fees, and the
application and the fees were rejected by the officer charged with
the duty of receiving them, and wrongfully rejected by him. Such
wrongful rejection did not operate to deprive defendant of his
equitable rights, nor did he forfeit or lose those rights because,
after this wrongful rejection, he followed the advice of the
register and sought in another way to acquire title to the lands.
The law deals tenderly with one who in good faith goes upon the
public lands with a view of making a home thereon. If he does all
that the statute prescribes as the condition of acquiring rights,
the law protects him in those rights, and does not make their
continued existence depend alone upon the question whether or no he
takes an appeal from an adverse decision of the officers charged
with the duty of acting upon his application.
"The policy of the federal government in favor of settlers upon
public lands has been liberal. It recognizes their superior equity
to become the purchasers of a limited extent of land, comprehending
their improvements, over that of any other person."
Clements v.
Warner, 24 How. 394,
65 U. S.
397.
There can be no question as to the good faith of the defendant.
He went upon the land with the view of making it his home. He has
occupied it ever since. He did all that was in his power in the
first instance to secure the land as his homestead. That he failed
was not his fault; it came through the wrongful action of one of
the officers of the government. We do not mean to hold that the
government or its grantees are concluded by the mere fact that one
of its officers has given erroneous advice. If there was nothing
more in this case than that the defendant consulted the officers of
the land office as to how he could best obtain title to the land;
that they gave him advice which was founded upon a mistake of fact,
and was not good advice; that he pursued the plan they suggested,
and yet failed to acquire the title, he would have
Page 156 U. S. 544
to bear the consequences of the error. But here a rightful
application was wrongfully rejected. This was not a matter of
advice, but of decision. Doubtless the error could have been
corrected by an appeal, and perhaps that would have been the better
way; but when, instead of pursuing that remedy, he is persuaded by
the local land officer that he can accomplish that which he desires
in another way -- a way that to him seems simpler and easier -- it
would be putting too much of rigor and technicality into a remedial
and beneficial statute like the homestead law to hold that the
equitable rights which he had acquired by his application were
absolutely lost.
For these reasons, we are of opinion that there was error in the
conclusion of the Supreme Court of the State of Kansas, and the
judgments in these two cases are
Reversed for further proceedings in accordance with the
views herein expressed.
MR. JUSTICE GRAY was not present at the argument, and took no
part in the decision of these cases.
