1. Occupation and improvement on the public lands with a view to
preemption, do not confer a vested right in the land so
occupied.
2. It does confer a preference over others in the purchase of
such land by the
bona fide settler, which will enable him
to protect his possession against other individuals, and which the
land officers are bound to respect.
3. This inchoate right may be protected by the courts against
the claims of other persons who have not an equal or superior
right, but it is not valid against the United States.
4. The power of Congress over the public lands, as conferred by
the Constitution, can only be restrained by the courts, in cases
where the land has ceased to be government property by reason of a
right vested in some person or corporation.
5. Such a vested right, under the preemption laws, is only
obtained when the purchase money has been paid, and the receipt of
the proper land officer given to the purchaser.
6. Until this is done, it is within the legal and constitutional
competency of Congress to withdraw the land from entry or sale,
though this may defeat the imperfect right of the settler.
In March, 1862, and for many years before, there was a
Page 76 U. S. 188
large body of land in California known as the Soscol Ranch, and
which was supposed by almost everyone in that country to be private
property. The tract covered eighteen square leagues, and included
the City of Benicia, the Town of Vallejo, the navy yard of the
United States, the depot of the Pacific Steamship Company, and
hundreds of acres of land in cultivation and in possession of a
large rural population. These parties all claimed under grants to a
certain Vallejo by the Mexican government, made in 1843 and 1844,
which had been presented to the Board of Land Commissioners and
confirmed, and the decision of the board had been also affirmed on
appeal to the district court.
In March, 1862, the case coming before this tribunal, the court
felt itself compelled to declare the grant void for want of
authority in the Mexican government to make it, and on the 22d day
of the month just named did so declare it; the decision not in any
way impeaching the good faith of the numerous purchasers under
Vallejo. However, as the act of Congress [
Footnote 1] which organized the Board of Commissioners
to determine the land titles in California, declared that when any
of the claims presented to it should finally be decided to be
invalid the land should be considered as a part of the public
domain, the effect of the decision was, that the United States
became the absolute owner in fee of all the property, as above
described; city, town, depot, ranch, the houses, the homes, the
cultivated grounds and orchards, which the persons had bought and
paid for, had built on and cultivated. The occupants had nothing
left, of course, but an appeal to the equity and generosity of the
government.
As soon as it became generally known in Benicia, and among the
population on and about the Soscol Ranch, that this Court had
declared the Vallejo claim void, and that the whole eighteen
leagues were public land, a rush was made to secure all of it that
was valuable, and which it was supposed had become subject to the
preemption laws. The report of the register and receiver of the
Land Office, who were subsequently required to investigate the
claims set up
Page 76 U. S. 189
to these lands, both by the Vallejo claimants and the settlers,
presents the mode in which this was done. The parties desiring to
make preemption claims generally went on the lands in the night,
because they were resisted by those in possession, and in the
morning a house, eight or ten feet square with shed roof of redwood
boards, set up edgewise, without window, fireplace, or floor, was
discovered, the evidence of a
bona fide settlement and
occupation under the preemption laws of the United States.
Among the persons who sought to obtain a property by preemption
right in this land was one Whitney, who, according to his own
account, entered on a quarter-section one afternoon with his
family, consisting of his wife, two children, a man and a
carpenter, with his team, goods, and household furniture. He
commenced building next day, and made a better house than those
above described. It had three rooms. The quarter-section on which
he entered had been already occupied by one Frisbie, a son-in-law
of Vallejo, and one of the numerous persons in possession under
Vallejo's title. It was enclosed by a fence, had a crop not yet
gathered and a house occupied by a tenant of Frisbie. Whitney's
occupation was resisted by Frisbie, who on one occasion seized a
double-barreled shotgun of Whitney's, cocked it at him, and stood
in a menacing attitude, Whitney twisting it out of his hands.
On the 3d March, 1863, after the effect of the decision in
United States v. Vallejo became known and after Congress
had had time to examine into the case, that body passed an act for
the benefit of these occupants of the Vallejo claim. [
Footnote 2] This act authorized the lines of
the public surveys to be extended over the Soscol Ranch and enacted
that
bona fide purchasers from Vallejo or his assigns
might enter the lands so purchased and reduced to possession at the
time of the adjudication of the Supreme Court at one dollar and
twenty-five cents per acre. Under this act, Frisbie paid his money,
made his entry, and finally received his patent.
Page 76 U. S. 190
When, on the other hand, shortly after his settlement above
described, Whitney applied to the land officers to make his
declaration of intention to occupy and cultivate the land, they
refused to receive it, first because no surveys had been made by
which the land could be identified, and afterwards because Congress
had passed the act already cited for the benefit of the claimants
under Vallejo. He never paid any money to the government, nor did
he receive a certificate of entry or preemption, though he offered
to prove his settlement.
In this state of things, Whitney filed a bill in the court below
setting forth such of the preceding facts as bore favorably on his
case, setting forth also that Vallejo's title had been declared
void by this Court on the 24th March, 1862, and that the land had
so become part of the public domain, and subject to the right of
preemption, and that he had settled upon it, erecting a dwelling
house, which he occupied with his family, cultivating &c.; that
the act of the 3d of March, 1863, had been passed at the
solicitation of Vallejo and purchasers under him. The bill
proceeded:
"But your orator insists that after the decision of the Supreme
Court of the United States in March, 1862, and before the passage
of the Special Act of March 3, 1863, above mentioned, the said
lands were by law open to preemption, and your orator having within
that period made a
bona fide settlement and having fully
complied with all the conditions prescribed by law, is vested with
the right to enter said lands."
It therefore prayed that as he, Whitney, had the superior
equity, Frisbie should be compelled to convey the land to him.
Frisbie answered setting forth such of the already stated facts
as affected favorably his case, denying the sufficiency of the
settlement set up, admitting the decision of the Supreme Court,
asserting that
"the effect of that decision upon the rights of the purchasers
under that grant, who had by themselves and their tenants settled
and improved the land, was a question of law,"
but maintaining "that it
Page 76 U. S. 191
did not subject the said land to settlement and preemption by
strangers."
There was no great controversy apparently about the facts, and
the court below, citing and relying on
United States v.
Fitzgerald, [
Footnote 3]
Smith v. United States, [
Footnote 4]
Delassus v. United States, [
Footnote 5] and
Lytle v. State of
Arkansas, [
Footnote 6] was
of the opinion
"that at the date of the complainant's entry on the land in
controversy in October, 1862, it was open to actual settlement and
preemption; that he having made his actual settlement and
improvement on the land and complied with all the terms and
conditions required by law to complete his title, or tendered
performance thereof, was entitled to have a patent for the land,
and obtained such an interest and vested title and property therein
as could not be taken from him and transferred to another against
his consent, even by an act of Congress."
It accordingly held Frisbie a trustee for Whitney, and decreed
the conveyance prayed for.
The case was now brought here on appeal by Frisbie.
MR. JUSTICE MILLER, after stating the case, delivered the
opinion of the Court.
Frisbie having become possessor of the legal title to the land
in controversy, the complainant Whitney claims that he shall be
compelled to convey it to him because he has the superior equity,
for this is a suit in a court of equity founded on its special
jurisdiction in matters of trust. It is therefore essential to
inquire into the foundation of this supposed equity.
When, shortly after his settlement, Whitney applied to the land
officers to make his declaration of intention to occupy and
cultivate the land, they refused to receive it, first because no
surveys had been made by which the land could be identified, and
afterwards because Congress had passed
Page 76 U. S. 192
the act already cited for the benefit of the claimants under
Vallejo. He never paid any money to the government, never received
a certificate of entry or preemption, though he offered to prove up
his settlement, and he claims that his intrusion on Frisbie's
enclosed grounds by violence, and his offer to prove his intention
to become a
bona fide occupant of the land, create an
equity superior to Frisbie's which demands of a court of chancery
to divest Frisbie of his legal title and vest it in him.
If there be any principle of law which requires this, the Court
must be governed by it, but it is idle to pretend that such a
decree would be founded in natural justice.
It is claimed on the part of the defendant in error that such a
principle is found in the legislation of Congress granting the
right of preemption to actual settlers on the public lands of the
United States. The proposition is that as soon as the decree of the
Supreme Court was announced declaring the Vallejo claim invalid,
the land covered by that claim became public land, subject to the
operation of all the laws by which the actual settler could secure
title to such lands, and that the steps taken by Whitney in this
direction had so far effected this purpose, that the act of
Congress for the benefit of the Vallejo claimants was ineffectual
to enable Frisbie to avail himself of the benefits which it was
intended to confer. We say the benefits it designed to confer,
because we entertain no doubt of the intention of Congress to
secure to persons situated as Frisbie was, the title to their
lands, on compliance with the terms of the act, and if this has not
been done it is solely because Congress had no power to enact the
law in question.
The learned court whose decision we are reviewing place their
judgment on the ground that, before the passage of that act, the
complainant had acquired a vested right in the land, which could
not be divested by any legislation of Congress. On the other hand
it will hardly be contended that anything short of a vested right
in this land could deprive Congress of the right which it has as
owner and holder of the legal title, and, by the express language
of the Constitution, to
Page 76 U. S. 193
dispose of and make all needful rules and regulations respecting
the territory or other property of the United States. The essential
inquiry in this case, therefore, is whether complainant had
acquired such a vested right, before Congress by law withdrew these
lands from the operation of the preemption acts.
It has been argued that no law existed at the time Whitney went
upon the land, by which unsurveyed land could be legally entered
upon with a view to preemption. But in the view which the Court
takes of the matter, it may be assumed that the lands were open to
preemption. In this concession we also propose to waive the
discussion of another question which presents serious difficulties
to our minds, in regard to complainant's right to make a valid
preemption by a forcible intrusion upon land cultivated, enclosed,
and peaceably occupied by another man.
But resolving this difficulty in favor of complainant for the
present, we are still of opinion that he had not acquired a vested
right in the land when Congress acted upon the subject.
What had he done? He had gone upon the land, built a house and
barn, and perhaps enclosed some of the ground. He had also applied
to the register of the land office, and offered to make a
declaration that he had done these things with the intention of
making a permanent settlement, and claiming the land under the
right of preemption. This is all. He had paid no money, nor had he
then tendered any. The land officers refused to receive his
declaration, and denied his right to preempt the land. He never has
paid any money, has never received any certificate of preemption,
and the register and receiver have never in any manner acknowledged
or admitted his right to make preemption of that land. So far as
anything done by him is to be considered, his claim rests solely
upon his going upon the land and building and residing on it. There
is nothing in the essential nature of these acts to confer a vested
right, or indeed any kind of claim to land, and it is necessary to
resort to the preemption law to make out any shadow of such
right.
Page 76 U. S. 194
The act of Congress on this subject to which all the subsequent
acts refer and which prescribes the terms and the manner of
securing title in such cases is the Act of September 4, 1841.
[
Footnote 7] That was an act
full of generosity, for it gave the proceeds of the sales of all
the public lands to the states. The tenth section of the act
provides that any person of the class therein described who shall
make a settlement upon public lands of a defined character and who
shall inhabit and improve the same and who shall erect a dwelling
thereon shall be authorized to enter with the register of the
proper land office, by legal subdivisions, one quarter-section of
said land, to include the residence of the claimant, upon paying
the minimum price of such land. Section eleven provides that
conflicting claims for preemption shall be settled by the register
and receiver; section twelve, that prior to such entry proof of the
settlement and improvement required shall be made to the
satisfaction of the register and receiver; and section thirteen
requires an oath to be made by the claimant before entry; section
fifteen requires a person settling on land with a view to
preemption, to file within a limited time, a statement of this
intention and a description of the land.
When all these prerequisites are complied with, and the claimant
has paid the price of the land, he is entitled to a certificate of
entry from the register and receiver; and after a reasonable time,
to enable the land officer to ascertain if there are superior
claims, and if in other respects the claimant has made out his
case, he is entitled to receive a patent, which for the first time
invests him with the legal title to the land.
The construction of this act, and others passed since
in
pari materia, in regard to the nature of the rights conferred
on occupants of the public lands, has, of course, received the
consideration of that department of the government to which the
administration of these land laws has been confided. The
construction of that department and of the Attorneys General to
whom the Secretaries of the Interior have
Page 76 U. S. 195
applied for advice, cannot be better expressed than in the
language of some of those opinions.
Attorney General Cushing in an opinion given in 1856, [
Footnote 8] says:
"Persons who go upon the public land with a view to cultivate
now, and to purchase hereafter, possess no rights against the
United States, except such as the acts of Congress confer; and
these acts do not confer on the preemptor, in posse, any right or
claim to be treated as the present proprietor of the land, in
relation to the government."
In the matter of the Hot Springs tract of Arkansas, Attorney
General Bates says: [
Footnote
9]
"A mere entry upon land, with continued occupancy and
improvement thereof, gives no vested interest in it. It may,
however, give, under our national land system, a privilege of
preemption. But this is only a privilege conferred on the settler
to purchase land in preference to others. . . . His settlement
protects him from intrusion or purchase by others, but confers no
right against the government."
In the matter of this same Soscol Ranch, [
Footnote 10] Attorney General Speed asserts the
same principle. He says:
"It is not to be doubted that settlement on the public lands of
the United States, no matter how long continued, confers no right
against the government. . . . The land continues subject to the
absolute disposing power of Congress, until the settler has made
the required proof of settlement and improvement, and has paid the
requisite purchase money."
These opinions, written for the guidance of the Land Department,
have been received and acquiesced in by the Secretaries of the
Interior, and have come to be the recognized rule of action in that
department.
This construction of the law has also been asserted by the
courts of last resort in Missouri, Mississippi, Illinois, and
California; states in which the population is largely interested in
the liberal operation of the preemption laws. [
Footnote 11]
Page 76 U. S. 196
We are satisfied that this is a sound construction of the
preemption laws on the question now under consideration.
A series of cases decided in this Court in which the equitable
rights of persons claiming under those laws have been protected by
the court against the legal title acquired by other parties through
the disregard of their rights by the officers of the Land
Department is supposed to assert principles inconsistent with the
construction just stated. We cannot here examine these cases in
detail, but we may state that in nearly all of them it will be
found that the party whose equitable title was thus protected had,
by the action of the officers of the Land Department and the
payment and acceptance of the price, acquired a vested right which
these officers afterwards disregarded in violation of law. And if
in any of these cases the party, asserting successfully his
equitable interest, had not acquired a vested right in the just
sense of that term, the cases are still widely different from the
one under consideration. In all those cases, the successful party
had established his legal right of preference of purchase over the
other under the law as it stood when the land officers decided the
case. And it was the action of those officers and their disregard
of the law in refusing to the party the benefit of this preference
in purchase which this Court corrected by compelling the conveyance
of the legal title acquired by this violation of law. But in the
case before us and in those to which the opinions of the Attorneys
General refer, it was Congress, the lawmaking power, which
intervened and by a new law withdrew the land from the operation of
the preemption laws while the right of preference in purchase
remained unexercised and amounted to no more than this
preference.
The courts may very properly correct the injustice done by the
land officers in refusing to accord rights, however inchoate, which
are protected by laws still in existence, while they can only
consider vested rights when those rights are sought to be enforced
in opposition to the repeal or modification of the laws on which
they were founded.
The argument is urged with much zeal that because
complainant
Page 76 U. S. 197
did all that was in the power of anyone to do towards perfecting
his claim, he should not be held responsible for what could not be
done.
To this we reply, as we did in the case of
Rector v.
Ashly, [
Footnote 12]
that the rights of a claimant are to be measured by the acts of
Congress, and not by what he may or may not be able to do, and if a
sound construction of these acts shows that he had acquired no
vested interest in the land, then, as his rights are created by the
statutes, they must be governed by their provisions, whether they
be hard or lenient. That was a case also in which it became
important to ascertain when a right to public land became vested,
and though it arose under statutes somewhat different from the
general preemption law, the principles asserted there, and in the
previous cases of
Bagnell v. Broderick [
Footnote 13] and
Barry v. Gamble
[
Footnote 14] strongly
support our conclusion in the present case.
Decree reversed and the case remanded, with instructions to
dismiss the bill.
[
Footnote 1]
Act of 3d March, 1851, § 13.
[
Footnote 2]
12 Stat. at Large 808.
[
Footnote 3]
40 U. S. 15 Pet.
407.
[
Footnote 4]
35 U. S. 10
Pet. 330.
[
Footnote 5]
34 U. S. 9 Pet.
133.
[
Footnote 6]
51 U. S. 10
How. 333.
[
Footnote 7]
5 Stat. at Large 453.
[
Footnote 8]
8 Opinions of the Attorneys General 72.
[
Footnote 9]
10
id. 57.
[
Footnote 10]
11
id. 462.
[
Footnote 11]
Bower v. Higbee, 9 Mo. 261;
Phelps v. Kellogg,
15 Ill. 135;
Grand Gulf v. Bryan, 8 Smedes & Marshall
268;
People v. Shearer, 30 Cal. 650; and
Hutton v.
Frisbie, in the Supreme Court of California, July Term
1869.
[
Footnote 12]
73 U. S. 6 Wall.
142.
[
Footnote 13]
38 U. S. 13 Pet.
436.
[
Footnote 14]
44 U. S. 3 How.
32.
