As the claim of the plaintiff in error, claiming under an
alleged preemption, was passed upon by the proper officers of the
Land Department, originally and on appeal, and as the result of the
contest was the granting of a patent to the contestant, in order to
maintain her title, she must show either that the Land Department
erred in the construction of the law applicable to the case or that
fraud was practiced upon its officers or that they themselves were
chargeable with fraudulent practices, which she has failed to
do.
The claim of the plaintiff in error to a right of preemption is
fatally defective because her vendors and predecessors in title had
failed to make or file an actual entry in the proper land
office.
Emma J. Gonzales, in October, 1891, filed a bill of complaint in
the District Court of the Fourth Judicial District of the Territory
of Arizona, against E. W. French, probate judge of the County of
Yavapai and Territory of Arizona, and former trustee of the
inhabitants of the Town of Flagstaff, of the County of Coconino,
and J. E. Jones, Probate Judge of said County of Coconino, and the
successor, as trustee, of the inhabitants of the said Town of
Flagstaff, and therein alleged that she was the equitable owner of
a certain tract of land, containing 120 acres, and forming part of
section 16, township 21 N., R. 7 E., of the Gila and Salt River
meridian. The facts, as alleged by her, were substantially these:
prior to the survey of said township, Thomas F. McMillan, Frank
Christie, and Conrad Farriner, who were citizens of the United
States, over the age of 21 years, and qualified preemptors, while
prospecting for a home upon the public lands of the United States
subject to preemption, or that might so become when the same should
be surveyed, settled on this land, intending to claim the same as
preemptors, and were on said land at the date of survey in 1878;
that they had built dwelling
Page 164 U. S. 339
houses thereon, and reduced portions of it to cultivation prior
to such survey; that they continued to improve and claim the same
until in June, 1883, when the plaintiff bought from the said
occupants all their improvements, and took possession thereof; that
she afterwards, and while living on the land she now claims, built
a dwelling house thereon and made other improvements, prior to
April 2, 1885, of the value of $3,000; that, on said date she made
formal application to the register and receiver of the United
States land office at Prescott, Arizona to be allowed to file a
preemption declaratory statement for the land, and to enter the
same, tendering to said officers the proper price therefor, said
application being made before any adverse claimant was known, but
her application was rejected, on the ground that the land was
reserved for schools; that, on February 3, 1889, Congress passed an
act for the relief of the inhabitants of Flagstaff, Arizona, the
tract involved in this suit, being embraced in the half section
mentioned in said act, by which it was provided that the probate
judge of Yavapai County might enter the south half of section 16,
township 21 north, range 7 east, in trust for the occupants and
inhabitants of Flagstaff. The bill further alleged that the tracts
settled on at the date of the survey were excepted by section 2275
of the Revised Statutes of the United States from the reservation
of the sixteenth and thirty-sixth sections in each township for
school purposes, but that if not so excepted, the land claimed by
her was released from any such reservation by said Act of February
13, 1889, and became subject to her settlement claim; that the said
French, probate judge, had been permitted, on January 17, 1889, to
make town site declaratory statement for the benefit of the
inhabitants of Flagstaff for said half section; that she (the
plaintiff) contested the right of the said French to make town site
entry, and prosecuted her protest by successive appeals to the
Commissioner of the General Land Office and the Secretary of the
Interior, but that a patent of the United States was issued to said
French on said entry for said land; that at the time she purchased
said improvements and settled on the land, the Town of Flagstaff
was unorganized
Page 164 U. S. 340
and unknown, and none of the inhabitants were then settled on
said land, or claiming any part of it, and that, on the
organization of Coconino County, the land in suit became a part
thereof, and the defendant Jones became probate judge of the new
county, and the successor to French in the trust. The plaintiff
asked a decree declaring that the settlement and occupancy of said
land at the date of survey, by qualified preemptors, excluded the
same from the reservation for school purposes; that, by reason of
defendants' purchase of the improvements, and her own occupancy and
improvements, a right of entry attached thereto in her; that the
refusal of the local officers to allow her filing in 1885 was
unlawful; that the Act of February 13, 1889, did not take away any
of her rights, but, if anything, released any claim the Territory
of Arizona might have to the land, and that, under the town site
laws referred to in said act, her rights as a settler were and are
superior to those of the inhabitants of Flagstaff as to the
particular part of the section covered by her claim, and that the
said patentee, as trustee for the said inhabitants, insofar as the
land claimed by the plaintiff is embraced in said patent, should be
decreed to be the trustee of the plaintiff and be required to
deliver a deed for the same to the plaintiff.
The defendants demurred to the complaint on the general ground
that it failed to state facts sufficient to constitute a cause of
action. This demurrer was sustained by the district court. The
plaintiff elected to stand on her complaint, and a final decree was
entered dismissing the bill. The plaintiff thereupon appealed to
the supreme court of the territory, where the judgment below was
affirmed, from which decree an appeal was taken and allowed to this
Court.
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Page 164 U. S. 341
Section 1946 of the Revised Statutes enacted that sections
numbered sixteen and thirty-six in each township of the Territories
of New Mexico, Utah, Colorado, Dakota, Arizona, Idaho, Montana, and
Wyoming should be reserved for the purpose of being applied to
schools in the several territories named, and in the states and
territories thereafter to be erected out of the same. Section 2275
is as follows:
"Where settlements with a view to preemption have been made
before the survey of the lands in the field, which are found to
have been made on section sixteen or thirty-six, those sections
shall be subject to the preemption claim of such settler, and if
they, or either of them, have been or shall be reserved or pledged
for the use of schools or colleges in the state or territory in
which the lands lie, other lands of like quantity are appropriated
in lieu of such as may be patented by preemptors. . . ."
In 1878, a survey in the field was made of the township in which
the lands in dispute were situated, which survey, together with a
plat of the same, was approved February 3, 1879. At the time of the
survey, McMillan and Farriner were residing on and cultivating
lands constituting a portion of section sixteen, and in 1883, Emma
J. Gonzales, the plaintiff in error, purchased from said occupants
their improvements, took possession of the land, and erected
additional improvements thereon.
On February 13, 1889, Congress enacted the following law:
"A Bill for the Relief of the Inhabitants of the Town of
Flagstaff, County of Yavapai, Territory of Arizona."
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, that the
Probate Judge of Yavapai county, Territory of Arizona, be, and he
is hereby, authorized to enter, in trust for the occupants and
inhabitants of Flagstaff for town site purposes, the south half of
section sixteen, township twenty-one north, of range seven east,
Gila and Salt River meridian, in the Territory of Arizona, subject
to the provisions of sections twenty-three hundred and
eighty-seven, twenty-three hundred and
Page 164 U. S. 342
eighty-eight, and twenty-three hundred and eighty-nine of
chapter eight of the Revised Statutes of the United States,
relating to town sites."
"SEC. 2. That upon the passage of this act, the Territory of
Arizona, through its proper officers, shall be, and hereby is,
authorized to select as indemnity to said land, and in full
satisfaction thereof and for the purpose stated in section 1946,
one-half section or three hundred and twenty acres, of public
lands, in any office in said territory, said selections to be made
according to legal subdivisions and contiguous."
On January 17, 1889, E. W. French, as probate judge of said
county, in trust for the inhabitants of the Town of Flagstaff,
filed a declaratory statement for the entry of said south half of
said section sixteen, and on July 29, 1889, the plaintiff in error
appeared before the local land officers, and filed a protest
against the allowance of said entry by the said probate judge. At
the hearing before said local land officers, the land was awarded
to the said probate judge, in trust for the inhabitants of
Flagstaff, and the plaintiff appealed successively to the
Commissioner of the General Land Office and to the Secretary of the
Interior, by both of whom her right of entry was denied. The land
was awarded to said probate judge, and subsequently a patent was
issued to him, in trust for the occupants and inhabitants of the
said Town of Flagstaff.
As the claim of the plaintiff in error to the land in question
was passed upon by the proper local officers of the Land
Department, and subsequently, upon appeal, by the Commissioner of
the General Land Office, and, upon a further appeal, by the
Secretary of the Interior, and as the result of the contest was the
granting of a patent to the probate judge of the County of Yavapai
as trustee of the inhabitants of the Town of Flagstaff, the
plaintiff, to maintain her bill, must aver and prove either that
the Land Department erred in the construction of the law applicable
to the case, or that fraud was practiced upon its officers, or that
they themselves were chargeable with fraudulent practices.
Johnson v.
Towsley, 13 Wall. 72;
Moore v. Robbins,
96 U. S. 530;
Steel v. Smelting Co., 106 U. S. 447.
Page 164 U. S. 343
Recognizing this well settled rule, the plaintiff contends that
the Land Department and the Supreme Court of Arizona erred in
failing to find as matter of law that the conceded settlement of
McMillan and Farriner on the land in question, prior to the survey
in the field, and their occupancy of the same with the intention of
claiming said land under the preemption law, excluded said land
from the reservation for school purposes. In other words, the
contention is that mere settlement and cultivation upon any portion
of sections sixteen and thirty-six before the same shall be
surveyed exclude such portion from the school grant, and
Sherman v. Buick, 93 U. S. 209, and
Mining Co. v. Consolidated Mining Co., 102 U.
S. 167, are cited to that effect.
But those were cases decided under the Act of March 3, 1853, c.
145, 10 Stat. 244, under which the right of the State of California
to school lands arose, and it was held that, by the express terms
of the seventh section of that act, where there was either a
dwelling house or the cultivation of any portion of the land on
which some one was residing and was asserting claim to it, the
title of the state did not vest, but the alternative right to other
land as indemnity did.
The language of the seventh section of that act,
"where any settlement, by the erection of a dwelling house or
the cultivation of any portion of the land, shall be made upon the
sixteenth and thirty-sixth sections before the same shall be
surveyed, . . . other lands shall be selected by the authorities of
the state in lieu thereof,"
is widely different from that of section 2275,
"[w]here settlements, with a view to preemption, have been made
before the survey of the lands in the field, which are found to
have been made on sections sixteen and thirty-six, those sections
shall be subject to the preemption claim of such settler, and . . .
other lands of like quantity are appropriated in lieu of such as
may be patented by preemptors."
And Mr. Justice Miller, in delivering the opinion of the Court
in
Mining Co. v. Consolidated Mining Co., 102
U. S. 175, was careful to say that "the qualifying
incidents" prescribed in the act of 1853 "are not the same required
under the general preemption law," but
Page 164 U. S. 344
are intended "to convey the idea of a settlement and a settler
according to the terms of the statute under consideration."
The claim of the plaintiff in error, therefore, to a right of
preemption, was fatally defective, because her vendors and
predecessors in title had failed to make or file an actual entry in
the proper land office. As they did not choose to assert their
rights by filing a declaratory statement, or by making an entry as
preemptioners, their mere possession did not prevent the rights of
the territory from attaching to the school sections when the survey
was made. Nor did the plaintiff in error lawfully succeed to any
possessory rights they may have had as against the United States,
because such rights were merely personal to the settler, and, under
section 2263, Rev.Stat., were not assignable to the plaintiff in
error. She did not herself, after taking possession, comply with
the requisitions of the law.
Section 2265, Rev.Stat., provides that
"every claimant under the preemption law for land not yet
proclaimed for sale is required to make known his claim in writing
to the register of the proper land office within three months from
the time of the settlement, giving the designation of the tract and
the time of settlement; otherwise, his claim shall be forfeited and
the tract awarded to the next settler, in the order of time, on the
same tract of land, who has given such notice and otherwise
complied with the conditions of the law."
And section 2266 provides that,
"in regard to settlements which are authorized upon unsurveyed
lands, the preemption claimant shall be in all cases required to
file his declaratory statement within three months from the date of
the receipt at the district land office of the approved plat of the
township embracing such preemption settlement."
And section 2267 provides that
"all claimants of preemption rights under the two preceding
sections shall, when no shorter time is prescribed by law, make the
proper proof and payment for the lands claimed within thirty months
after the date prescribed therein, respectively, for filing their
declaratory notice, has expired."
The bill discloses that the plaintiff in error first appeared in
the land office, and proposed to file her declaratory statement
Page 164 U. S. 345
on April 2, 1885, more than six years after the filing of the
plat.
The register and receiver were therefore warranted in rejecting
the claim of the plaintiff in error, and, at any rate, as she did
not appeal from their decision to the Commissioner of the General
Land Office, she must be deemed to have acquiesced therein, and is
concluded thereby so long as it remains unreversed.
Wilcox v.
Jackson, 13 Pet. 511.
The plaintiff in error took no further steps until July 20,
1889, when, as already stated, she ineffectually opposed the claim
of the probate judge in making his entry under the provisions of
the Act of February 13, 1889. The present bill was not filed until
October 2, 1891, and in the meantime, as appears by one of the
pleas, the truth of which was admitted by demurrer, the probate
judge had, as trustee under the act, conveyed many and large
portions of the lands in controversy to numerous inhabitants of the
Town of Flagstaff.
The supreme court of the territory held that the land in
question was never divested of its character as school land until
the entry by the probate judge under the act of 1889, and
accordingly sustained the action of the trial court in dismissing
the plaintiff's complaint, and in this we see no error.
Whatever might have been the possessory rights of the plaintiff
in error as against other claimants under the ordinary land laws,
such rights could not avail against the right of Congress to confer
said lands upon other parties.
Frisbie v.
Whitney, 9 Wall. 187;
Yosemite
Valley Case, 15 Wall. 77;
Shepley v.
Cowan, 91 U. S. 330. We
cannot accede to the argument on behalf of the plaintiff in error
that the legal effect of the Act of February 13, 1889, was to leave
the land described therein open to controversy between townsite
settlers and persons who might have settled on the lands but had
not complied with the requisites of the preemption laws.
As was said in
Shepley v. Cowan, supra:
"In those cases,
Frisbie v. Whitney and the
Yosemite Valley Case, the Court decided that a party, by
mere settlement upon the public lands with an intention to obtain a
title to the same under the preemption laws, did not thereby
acquire such a vested
Page 164 U. S. 346
interest in the premises as to deprive Congress of the power to
dispose of the property; that, notwithstanding the settlement,
Congress could reserve the lands for sale whenever they might be
needed for public uses, as for arsenals, fortifications,
lighthouses, customhouses, and other public purposes for which real
property is required by the government; that the settlement, even
when accompanied with an improvement of the property, did not
confer upon the settler any right in the land as against the United
States, or impair in any respect the power of Congress to dispose
of the land in any way it might deem proper; that the power of
regulation and disposition conferred upon Congress by the
Constitution only ceased when all the preliminary acts prescribed
by law for the acquisition of the title, including the payment of
the price of the land, had been performed by the settler. When
these prerequisites were complied with, the settler for the first
time acquired a vested right in the premises of which he could not
be subsequently deprived. He was then entitled to a certificate of
entry from the local land officers, and ultimately to a patent of
the United States. Until such payment and entry, the acts of
Congress gave to the settler only a privilege of preemption in case
the lands were offered for sale in the usual manner -- that is, the
privilege to purchase them in that event in preference to
others."
In
Buxton v. Traver, 130 U. S. 235,
this language was used:
"A settlement upon the public lands in advance of the public
surveys is allowed to parties who in good faith intend, when the
surveys are made and returned to the local land office, to apply
for their purchase. If, within a specified time after the survey
and the return of the township plat, the settler takes certain
steps -- that is, files a declaratory statement, and performs
certain other acts prescribed by law -- he acquires for the first
time a right of preemption to the land. If those steps are, from
any cause, not taken, the proffer of the government has not been
accepted, and a title in the occupant is not even initiated."
Proper effect would not be given, as we think, to the Act of
February 13, 1889, by subjection the patentee and his
Page 164 U. S. 347
grantees to the claims of persons who have no vested rights
under the preemption laws. Such claims would in the present case
oust the town site settlers from large portions of the grant, and
defeat the manifest purpose of Congress.
The judgment of the supreme court of the Territory of Arizona
is
Affirmed.
