In May, 1854, J. settled on a quarter section of public land in
California, which had not been then offered for public sale, and
improved it. Before May, 1857, the government survey had been made
and filed, showing the tract to be agricultural land, not swamp or
mineral, and not embraced within any reservation. In May, 1857, J.
duly declared his intention to claim it as a preemption right under
the act of March 3, 1853, c. 145, 10 Stat. 244, and paid the fees
required by law, and the filing of this statement was duly noted in
the proper government record. J. occupied the tract until about
1859, when he left for England, and never returned. The land was
found to be within the granted limits of the grant to the Central
Pacific Railroad Company, by the Act of July 1, 1862, c. 120, 12
Stat. 489. That company filed its map of definite location March
26, 1864, and fully constructed its road by July 10, 1868. It
demanded this tract and the Land Office denied the claim. In 1885,
the preemption entry of J. was cancelled. On August 28, 1888, T.
made entry of the premises under the homestead laws of the United
States, and subsequently commuted such entry, made his final
proofs, paid the sum of $400, took the government receipt therefor,
and entered into possession.
Held:
(1) That the tract being subject to the preemption claim of J.
at the time when the grant to the railroad company took effect, was
excepted from the operation of that grant.
(2) That after the cancellation of that entry, it remained part
of the public domain, and, at the time of the homestead entry of
T., was subject to such entry.
The controversy in this case is in respect to the title to the
southeast quarter of section 33, township 12 north, range 7 east,
Mount Diablo meridian, in the State of California. The land is
within the granted limits of the Central Pacific Railroad Company,
Act of July 1, 1862, c. 120, 12 Stat. 489, and the plaintiff claims
under and by virtue of mesne conveyances from that company. The
company filed its map of definite location on March 26, 1864, and
fully constructed its road by
Page 158 U. S. 86
the 10th of July, 1868. It demanded, but never received, a
patent.
The title of the defendant rests on the following facts: on May
28, 1857, one Henry H. Jones, having paid the fees required by law
in such cases, filed his preemption declaratory statement in the
land office having jurisdiction over the premises, which
declaratory statement was in the words and figures following:
"I, Henry H. Jones, of Placer County, being an American citizen
over the age of twenty-one years and a single man, have, on the
16th day of January, 1854, settled and improved the southeast
quarter of section No. thirty-three (33) of township No. twelve
north (12 N.), of range No. seven east (7 E.), Mt. Diablo meridian,
in the district of lands subject to sale at the land office at
Marysville, California, containing one hundred and sixty acres,
which land has not yet been offered at public sale, and thus
rendered subject to private entry, and I do hereby declare my
intention to claim the said tract of land as a preemption right
under the provisions of an act of Congress of 3d day of March,
1853."
"Witness my hand, this 22nd day of May, A.D. 1857."
"Henry H. Jones"
"In presence of v. E. Remington"
The filing of this statement was duly noted in the proper volume
of tract books in the land office, and was the only record claim to
the premises prior to the time when the line of the Central Pacific
Railroad was definitely fixed. The government survey was made
intermediate the settlement by Jones in 1854 and the filing of this
statement. On April 18, 1856, a return of the official plat of such
survey was made by the surveyor general for the State of California
to the General Land Office at Washington, and during the same year
a duplicate copy thereof was filed in the local land office. By
such survey and return, all the land in the township, including the
premises in question, was ascertained and returned as agricultural
and not mineral or swamp land, and not embraced in any government
reservation. On June 30, 1858, the President
Page 158 U. S. 87
issued his proclamation for the sale of lands in that land
district, this tract included, naming February 14, 1859, as the
time for the opening of the sale and notifying all preemption
claimants that their rights would be forfeited unless prior to such
date they should establish their claims and pay for the lands they
had given notice of their intention to preempt. The proclamation
further declared that
"no mineral lands or tracts containing mineral deposits are to
be offered at the public sales, such mineral lands being hereby
expressly excepted from sale or other disposal pursuant to the
requirements of the Act of Congress approved March 3, 1853."
The land officers under this authority withheld from offer and
sale all of section 33, stating in their report, dated March 13,
1859, that the land was reserved as mineral land.
Sometime after the filing of the map of definite location, the
railroad company commenced proceedings against Jones to have his
declaratory statement cancelled. The decision of the local land
officers, adverse to Jones, was transmitted to the commissioner of
the general office, who, on December 23, 1886, affirming their
decision, held that
"at the date when the route of the C.P. R. Co. was definitely
fixed, a preemption claim had attached thereto, that of Jones, and,
as the grant to said company expressly provided that lands to which
a preemption claim had not attached were granted, it follows that
lands to which such a claim had then attached were not granted.
K.P. R. Co. v. Dunmeyer, 113 U. S. 629, and
U.S. v.
U. P. R. Co., 12 Copp 161. That Jones' claim has been found to
have been abandoned or invalid cannot operate to the railroad
company's advantage, for the granting act did not provide that
lands to which an unabandoned or valid preemption claim may not
have attached were granted, but only that lands to which a
preemption claim may not have attached were granted. The claim of
Jones had attached when the railroad was definitely located, and,
whether valid or invalid, excepted the land from the grant. The
tract in question is therefore held to be subject to disposal as
public land."
This decision was affirmed by the Secretary of the Interior
Page 158 U. S. 88
on July 17, 1888. On August 28, 1888, the defendant made entry
of the premises under the homestead laws of the United States.
Subsequently he commuted such homestead entry under section 2301,
Rev.Stat., made his final proofs, paid the sum of $400, and
obtained the government receipt therefor. With reference to the
occupation and improvement of the premises by Jones, this is the
finding of the trial court:
"That Jones, from the time that he alleged settlement, in 1854,
up to about 1859, cut some hay off from about four acres of the
land in controversy, which he had enclosed with a brush fence.
Jones cut off the brush on the ground in controversy to enable him
to make the fence. At that time, the country was open, and Jones
pastured his cattle and sheep on the land in controversy, as well
as over the surrounding country, but he never settled upon the land
in controversy. He lived on section 4, adjoining. At the time of
Jones' settlement, the lines of survey were not generally known,
Jones subsequently left the country to visit England about 1859,
the exact date not being fixed, and never returned. His record
filing remained intact on the records of the land office until
cancelled, as hereinbefore stated."
Upon the foregoing facts, the circuit court held that the land
in controversy was, at the time of defendant's homestead entry,
part of the public domain of the United States and subject to
disposal as public land, and, upon such conclusion, entered
judgment in favor of the defendant. 45 F. 616.
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This case turns upon the question whether, on March 26, 1864, at
the time of the filing by the railroad company of its map of
definite location, the tract in controversy was public
Page 158 U. S. 89
land of the United States, and therefore passing under the grant
to the company, or was excepted therefrom by reason of the previous
declaratory statement of Jones. In
Kansas Pacific Railway v.
Dunmeyer, 113 U. S. 629, one
Miller had made a homestead entry on the land in controversy prior
to the filing of the map of definite location. Thereafter he
abandoned his homestead claim, and the contention was that such
abandonment inured to the benefit of the company and subjected the
land to the operation of the grant; but this contention was denied,
the Court holding that the condition of the title at the date of
the definite location determined the question as to whether the
land passed to the railroad company or not, and, distinguishing
Water & Mining Company v. Bugbey, 96 U. S.
165, said in reference to a homestead claim:
"In the case before us, a claim was made and filed in the land
office, and there recognized, before the line of the company's road
was located. That claim was an existing one of public record in
favor of Miller when the map of plaintiff in error was filed. 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. The right of homestead having attached to the
land, it was excepted out of the grant as much as if, in a deed, it
had been excluded from the conveyance by metes and bounds."
In
Hastings & Dakota Railroad v. Whitney,
132 U. S. 357,
these facts appeared: at the time of the filing by the plaintiff
railroad company of its map of definite location, there stood upon
the records of the local land office a homestead entry of
Page 158 U. S. 90
Bentley S. Turner. This entry was based upon an affidavit made
by Turner, a soldier in the army of the United States, and actually
with his regiment in the State of Virginia, which affidavit stated
that Turner was the head of a family, a citizen of the United
States, and a resident of Franklin County, New York. It did not
state that Turner's family or any member thereof was residing on
the land, or that there was any improvement made thereon, and as a
matter of fact no member of his family was then residing or ever
did reside on the land, and no improvement whatever of any kind had
ever been made thereon by anyone. The application for the entry was
made through one Conwell, whom Turner had constituted his attorney
for that purpose. At the time of making this entry, section 1 of
the Act of March 21, 1864, c. 38, 13 Stat. 35; Rev.Stat. §
2293, was in force, which authorized one in the military or naval
service of the United States, and therefore unable to do personally
the preliminary acts required at the land office, whose family or
some member thereof was residing on the land, and upon which a
bona fide improvement and settlement had been made, to
make the customary affidavit before his commanding officer, and
upon that, the other provisions of the statute being complied with,
to enter a tract of land as a homestead. It was held that
notwithstanding the defects in the affidavit, the tract was
excepted from the scope of the grant, although the language of the
granting act only excepted therefrom lands to which "the right of
preemption or homestead settlement has attached," while the
language of the granting act in the present case is "to which a
preemption or homestead claim may not have attached."
We quote from the opinion of Mr. Justice Lamar as follows:
"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
Page 158 U. S. 91
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."
And after referring to the
Dunmeyer case, in which it
was said that the entry when made was valid,
"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. . . . 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
Page 158 U. S. 92
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, 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?"
The same doctrine was applied in
Bardon v. Northern Pacific
Railroad, 145 U. S. 535, to
a preemption entry, though it is true that in that case, payment
had been made and the final receipt issued prior to the filing of
the map of definite location.
See also Newhall v. Sanger, 92 U. S.
761, in which case the mere existence of an alleged
Mexican grant, valid or invalid, and the validity of which was
under investigation before the proper tribunal at the time of the
filing of the map of definite location of one of the Pacific roads,
a beneficiary of the very act now before us, was held to exclude
all lands within its boundaries from the operation of the
congressional grant.
Although these cases are none of them exactly like the one
before us, yet the principle to be deduced from them is that when
on the records of the local land office there is an existing claim
on the part of an individual under the homestead or preemption law
which has been recognized by the officers of the government and has
not been cancelled or set aside, the tract in respect to which that
claim is existing is excepted from the operation of a railroad land
grant containing the ordinary excepting clauses, and this
notwithstanding such claim may not be enforceable by the claimant
and is subject to cancellation by the government at its own
suggestion, or upon the application of other parties. It was not
the intention
Page 158 U. S. 93
of Congress to open a controversy between the claimant and the
railroad company as to the validity of the former's claim. It was
enough that the claim existed, and the question of its validity was
a matter to be settled between the government and the claimant, in
respect to which the railroad company was not permitted to be
heard. The reasoning of these cases is applicable here. Jones had
filed a claim in respect to this land, declaring that he had
settled and improved it, and intended to purchase it under the
provisions of the preemption law. Whether he had in fact settled or
improved it was a question in which the government was, at least up
to the time of the filing of the map of definite location, the only
party adversely interested, and if it was content to let that claim
rest as one thereafter to be prosecuted to consummation, that was
the end of the matter, and the railroad company was not permitted
by the filing of its map of definite location to become a party to
any such controversy. The land, being subject to such claim, was,
as said by Mr. Justice Miller in
Railway Company v. Dunmeyer,
supra, "excepted out of the grant as much as if in a deed it
had been excluded from the conveyance by metes and bounds."
While not disputing the general force of these authorities, it
is insisted by plaintiff that this case is not controlled by them,
for these reasons: first, Jones never acquired any right of
preemption, because he never in fact settled upon and improved the
tract; second, the land was unsurveyed at the time of the alleged
settlement, and the filing was not made "within three months after
the return of the plats of surveys to the land office" (10 Stat.
246), and was therefore an unauthorized act; third, that whether
the filing was made in time or not, as it was not followed by
payment and final proof within the time prescribed, all rights
acquired by it lapsed, the filing became, in the nomenclature of
the land office, an "expired filing," and the land was discharged
of all claim by reason thereof.
With reference to the first of these reasons, it is true that
there must be a settlement and improvement in order to justify the
filing of such a declaratory statement. Settlement
Page 158 U. S. 94
is the initial fact. The Act of September 4, 1841, c. 16, 5
Stat. 453, which was in force at the time of these transactions,
gave the right of preemption to one making "a settlement in
person," and who inhabits and improves the land and erects a
dwelling thereon (§ 10), and authorized the filing of a
declaratory statement within three months after the date of such
settlement (§ 15). In this respect, a preemption differs from
a homestead, for the entry in the land office is in respect to the
latter the initial fact. Act of May 20, 1862, c. 75, 12 Stat. 392;
Rev.Stat. § 2290;
Maddox v. Burnham, 156 U.
S. 544. But it is also true that settlement alone,
without a declaratory statement, creates no preemption right.
"Such a notice of claim or declaratory statement is
indispensably necessary to give the claimant any standing as a
preemptor, the rule being that his settlement alone is not
sufficient for that purpose."
Lansdale v. Daniels, 100 U. S. 113,
100 U. S. 116.
And the acceptance of 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
Railroad 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. Further, it may be noticed that the granting
clause of the Pacific Railroad Acts, differing from similar clauses
in other railroad grants, excepts lands to which preemption or
homestead "claims" have attached, instead of simply cases of
preemption or homestead "rights." And the filing of this
declaratory statement was, in the strictest sense of the term, the
assertion of a preemption claim, and, when filed and noted, it was
officially recognized as such. Indeed, if this is not so, there is
no preemption claim of record until the full right of the preemptor
is established by proofs and final entry, at which time he acquires
an equitable title sufficient to support taxation, and one of which
he cannot be dispossessed except by some legal proceedings.
Witherspoon v.
Duncan, 4 Wall. 210;
Orchard v. Alexander,
157 U. S. 372.
Page 158 U. S. 95
In this respect, notice may also be taken of the rule prevailing
in the Land Department, where the filing of the declaratory
statement is recognized as the assertion of a preemption claim
which excepts a tract from the scope of a railroad grant like this.
See, among other cases,
Malone v. Railway
Company, 7 L.D. 13;
Millican v. Railroad Company, 7
L.D. 85;
Payne v. Railroad Company, 7 L.D. 405;
Railroad Company v. Lewis, 8 L.D. 292;
Railroad
Company v. Stovenour, 10 L.D. 645.
Indeed, this declaratory statement bears substantially the same
relation to a purchase under the preemption law that the original
entry in a homestead case does to the final acquisition of title.
The purpose of each is to place on record an assertion of an intent
to obtain title under the respective statutes.
"This statement was filed with the register and receiver, and
was obviously intended to enable them to reserve the tract from
sale for the time allowed the settler to perfect his entry and pay
for the land."
Johnson v.
Towsley, 13 Wall. 72,
80 U. S. 89. By
neither the declaratory statement in a preemption case nor the
original entry in a homestead case is any vested right acquired as
against the government. For each, fees must be paid by the
applicant, and each practically amounts to nothing more than a
declaration of intention. It is true one must be verified and the
other need not be, but this does not create any essential
difference in the character of the proceeding, and when the
declaratory statement is accepted by the local land officers and
the fact noted on the land books, the effect is precisely the same
as that which follows from the acceptance of the verified
application in a homestead case and its entry on the land books.
The latter, as we have seen in the two cases of
Railroad
Company v. Dunmeyer and
Railroad Company v. Whitney,
supra, has been expressly adjudged to be sufficient to take
the land out of the scope of the grant. The reasons given therefor
lead to the same conclusion in respect to a declaratory statement.
Counsel urges that inasmuch as the latter need not be verified, one
might file under assumed names declaratory statements on every
tract within the limits of a railroad grant prior to the time
of
Page 158 U. S. 96
the filing of the map of definite location, and thus prevent the
railroad company from receiving any lands. This danger is more
imaginary than real. In the first place, for each application, fees
must be paid, and it is not to be supposed that anyone would throw
away money for the mere sake of preventing a railroad grant from
having any operation. In the second place, such declaratory
statements under assumed names would be purely fictitious, and
could be set aside as absolutely void. Indeed, good faith is
presumed to underlie all such applications. The acceptance of the
declaratory statement by the local land officers is
prima
facie evidence that they have approved it as a
bona
fide application, and if in any particular instance it is
shown to be purely fictitious, doubtless there is an adequate
remedy by proper proceedings in the land office. There is in the
case before us no pretense that the transaction was a fictitious
one or carried on otherwise than in perfect good faith on the part
of the applicant. At any rate, Congress has seen fit not to require
an affidavit to a declaratory statement, and has provided for the
filing of such unsworn statement as the proper means for an
assertion on record of a claim under the preemption law, and that
is all that is necessary to except the land from the scope of the
grant.
With reference to the second matter, it is true that section 6
of the Act of 1853, 10 Stat. 246, provides
"that, where unsurveyed lands are claimed by preemption, the
usual notice of such claim shall be filed within three months after
the return of the plats of surveys to the land offices."
But it was held in
Johnson v. Towsley, supra, that a
failure to file within the prescribed time did not vitiate the
proceeding; neither could the delay be taken advantage of by one
who had acquired no rights prior to the filing. As said in the
opinion in that case (pp.
80 U. S. 90):
"If no other party has made a settlement or has given notice of
such intention, then no one has been injured by the delay beyond
three months, and if at any time after the three months, while the
party is still in possession, he makes his declaration, and this is
done before anyone else has initiated a right of preemption by
settlement
Page 158 U. S. 97
or declaration, we can see no purpose in forbidding him to make
his declaration or in making it void when made. And we think that
Congress intended to provide for the protection of the first
settler by giving him three months to make his declaration, and for
all other settlers by saying, if this is not done within three
months, anyone else who has settled on it within that time, or at
any time before the first settler makes his declaration, shall have
the better right."
See also Lansdale v. Daniels, 100 U.
S. 113,
100 U. S. 117,
where it is said:
"Such a notice, if given before the time allowed by law, is a
nullity, but the rule is otherwise where it is filed subsequent to
the period prescribed by the amendatory act, as in the latter event
it is held to be operative and sufficient, unless some other person
had previously commenced a settlement and given the required notice
of claim."
The delay in filing therefore had no effect upon the validity of
the declaratory statement.
With reference to the third contention, it is true that section
6 of the act of 1853, heretofore referred to, provides not merely
when the declaratory statement shall be filed, but also that "proof
and payment shall be made prior to the day appointed by the
President's proclamation for the commencement of the sale,
including such lands." But the President's proclamation, appointing
February 14, 1859, as the day for commencing the sale of public
lands in certain townships, in one of which was the land in
question, expressly excepted and excluded mineral lands therefrom,
and on that ground, this land was not offered.
It was said by Mr. Secretary Noble in his decision on the appeal
of the railway company (11 L.D.195, 196):
"While it is true that the proclamation included said township
12 N., of range 7 E., it also declared that no 'mineral lands,' or
tracts containing mineral deposits, are to be offered at the public
sales, such mineral lands being hereby expressly excepted and
excluded from sale or other disposal, pursuant to the requirements
of the act of Congress approved March 3, 1853."
"Pursuant to this direction, the local officers withheld
from
Page 158 U. S. 98
offering and sale all of said section 33, as appears by their
report dated March 18, 1859. After stating all the offerings and
sales made in said township and range, the report concludes: 'All
the balance of the township reserved, mineral lands.' All of
section 33 was so reserved."
"It thus appears that the tract in question remained in the
category of unoffered lands, and was not proclaimed for sale. The
preemption Act of March 3, 1843, 5 Stat. 620, provided that the
settler on unoffered land might make proof and payment at any time
before the commencement of the public sale, which should embrace
his land. Until such time arrived, the filing protected the claim
of the settler. This was the status of the law at the time said
company's rights attached, and it so continued until modified by
the Act of July 14, 1870, 16 Stat. 279."
We see no sufficient reasons for doubting the conclusions thus
reached by the Secretary.
These are all the questions presented by counsel. There was no
error in the ruling of the circuit court, and its judgment is
therefore
Affirmed.
