1. A party by more settlement upon lands of the United States,
with a declared intention to obtain a title to the same under the
preemption laws, does not thereby acquire such a vested interest in
the premises as to
deprive Congress of the power to divest it by a grant to another
party.
2. The power of regulation and disposition over the lands of the
United States conferred upon Congress by the Constitution only
ceases under the preemption laws when all the preliminary acts
prescribed by those laws for the acquisition of the title,
including the payment of the price of the land, have been performed
by the settler. When these prerequisites have been complied with,
the settler for the first time acquires a vested interest in the
premises occupied by him, of which he cannot be subsequently
deprived. He then is entitled to a certificate of entry from the
local land officers, and ultimately to a patent for the land from
the United States. Until such payment and entry the preemption laws
give to the settler only a privilege of preemption in case the
lands are offered for sale in the usual manner; that is, the
privilege to purchase them in that event in preference to
others.
Page 82 U. S. 78
3. The United States by the preemption laws do not enter into
any contract with the settler, or incur any obligation that the
land occupied by him shall ever be put up for sale. They simply
declare by those laws that in case any of their hands are thrown
open for sale the privilege to purchase them in limited quantities,
at fixed prices, shall be first given to parties who have settled
upon and improved them. The legislation thus adopted for the
benefit of settlers was not intended to deprive Congress of the
power to make any other disposition of the lands before they are
offered for sale, or to appropriate them to any public use.
4. The case of
Frisbie v.
Whitney, 9 Wall. 187, affirmed.
5. The case of
Lytle v. State of
Arkansas, 9 How. 333, explained and distinguished
from the present case.
6. The Act of Congress of June 30, 1864, granting the Yosemite
Valley and the Mariposa Big Tree Grove to the State of California
passed the title of those premises to the state, subject to the
trust specified therein, that they should be held for public use,
resort, and recreation, and be inalienable for all time.
On the 30th of June, 1864, Congress passed an act, [
Footnote 1] granting to the State of
California the cleft or gorge in the Sierra Nevada Mountains,
situated in the County of Mariposa in that state, known as the
Yosemite Valley, with its branches and spurs, in estimated length
fifteen miles and in width one mile, with the stipulation that the
state should accept the grant upon the express condition that the
premises should be held for public use, resort, and recreation, and
should be inalienable for all time, except that leases for portions
of the premises for periods not exceeding ten years might be made,
the income derived therefrom to be expended in the preservation and
improvement of the premises, or the roads leading thereto. The act
provided that the boundaries of the grant should be established, at
the cost of the state, by the Surveyor General of the United States
for California, whose official plat, when affirmed by the
Commissioner of the General Land Office, should constitute the
evidence of the locus, extent, and limits of the cleft, or gorge;
and that the premises should be managed by the governor of the
state, with eight other commissioners
Page 82 U. S. 79
to be appointed by him, who should receive no compensation for
their services.
By the same act, Congress also granted to the state the tract of
land embracing the grove of mammoth trees in Mariposa, known as
"the Mariposa Big Tree Grove," the grant to be accepted upon
similar conditions as the grant of the Yosemite Valley, and the
premises to be held for like public use, resort, and recreation,
and to be also inalienable for all time, but with the same
privilege as to leases.
At the first session of the Legislature of California,
subsequently held, an act was passed by which the state accepted
the grant thus made of the Yosemite Valley and Big Tree Grove, upon
"the conditions, reservations, and stipulations" contained in the
act of Congress, and the governor and eight commissioners, who had
previously been appointed by him during the recess of the
legislature, were constituted a board of commissioners, "with full
power to manage and administer the grant made, and the trust
created by the act of Congress," and to make rules and regulations
for the government, improvement, and preservation of the premises.
The act also provided for the appointment by the commissioners of a
guardian of the premises, and made it a penal offense in anyone to
commit willfully any trespass thereon, to cut down or girdle the
trees, to deface or injure the natural objects, to fire the wood or
grass, or to destroy or injure any bridge or structure thereon, or
other improvement.
On the 19th of May, 1864, six weeks previous to the passage of
the act of Congress making the grant to the state, Hutchings
entered the valley of the Yosemite and settled upon lands therein,
with the intention, according to his declarations, and the findings
of the court, to acquire the title to the same under the preemption
laws of the United States. There were then on the premises a house,
outhouses, and a fence enclosing about three acres. These
improvements Hutchings purchased of the previous occupant, and he
had ever since resided upon the premises, and had improved and
cultivated them. The valley at the time was unsurveyed, and no
other acts than the settlement thus
Page 82 U. S. 80
made and continued had ever been done by him to acquire the
title, unless soliciting the state and Congress to recognize his
claim can be called such acts. At the time of his settlement,
Hutchings was possessed of all the qualifications required of
settlers under the preemption laws of the United States.
The principal one of these laws, and the one to which all
subsequent acts refer, is the Act of September 4, 1841, [
Footnote 2] entitled "An act to
appropriate the proceeds of the sales of the public lands, and to
grant preemption rights." The tenth section of this act provides
that any person of the class designated therein, who shall make a
settlement upon the public lands, to which the Indian title has
been extinguished, and
which has been previously surveyed,
and shall inhabit and improve the same, and 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
land, to include the residence of the claimant, upon paying to the
United States the
minimum price of said land, subject to
certain specified exceptions, among which is that no lands included
in any reservation by any treaty, law, or proclamation of the
President, or reserved for salines, or for the support of schools,
or
for other purposes, shall be liable to entry. By other
sections various provisions are enacted for the determination of
conflicting claims, and the preservation of proofs of settlement
and improvement. When all the 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 officers to ascertain whether
there are any superior claims, and whether the claimant has
complied, in all respects, with the law, he is entitled to a patent
of the United States. [
Footnote
3]
By the sixth section of the Act of Congress of March 3, 1853,
entitled "An act to provide for the survey of the public lands in
California, the granting of preemption rights therein,
Page 82 U. S. 81
and for other purposes," [
Footnote 4] all the public lands of the United States in
California,
whether surveyed or unsurveyed, are made, with
certain exceptions, subject to the above Act of September 4, 1841,
"with all the exceptions, conditions, and limitations therein,"
with a proviso that when unsurveyed lands are claimed by
preemption, notice of the claim shall be filed within three months
after the return of the plats of surveys to the land offices, and
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, the entry of such claims to be made by legal
subdivisions according to the United States survey, and also that
settlement on unsurveyed lands shall be authorized only where the
settlement is made within one year after the passage of the act.
This last limitation was subsequently extended by act of Congress
two years from March 1, 1854. [
Footnote 5]
In some of the states and territories, by acts of Congress,
settlements are authorized on unsurveyed lands, and by the 7th
section of the Act of May 30, 1862, "to reduce the expenses of the
survey and sale of the public lands of the United States,"
[
Footnote 6] this privilege was
extended to California.
Under this last act, Hutchings conceived that he had a right to
settle upon the unsurveyed lands of the United States in the
Yosemite Valley, and by the above acts of 1841 and 1853 could
acquire and had acquired such a vested interest in the premises, to
the extent of one hundred and sixty acres, that the United States
could not transfer their title to the state, or dedicate the land
to any public use. He therefore refused to surrender the possession
to the commissioners appointed by the state. The defendant also
refused to take a lease form the commissioners, though offered to
him at a mere nominal rate for ten years. They accordingly, in
November, 1867, brought the present action, alleging in their
complaint that the state was owner in fee of the premises, and that
they were entitled to the possession as commissioners of the
state.
Page 82 U. S. 82
Pending the action, and on the 20th of February, 1868, the
Legislature of California passed an act granting to the defendant
and one Lamon, each, one hundred and sixty acres of land in the
Yosemite Valley; the part granted to the defendant containing his
improvements and the premises in controversy. The second section of
the act provided that the act should take effect from and after its
ratification by Congress. It had never been thus ratified. A bill
to ratify it passed the House of Representatives, but failed in the
Senate.
The district court of the state, in which the action was
commenced, adjudged that the defendant was right in his view of his
interest, and accordingly gave judgment in his favor. The supreme
court of the state reversed the judgment, and ordered judgment for
the possession of the premises in favor of the commissioners. The
defendant now brought the case here for review.
Page 82 U. S. 86
MR. JUSTICE FIELD, after stating the case, delivered the opinion
of the Court, as follows:
The simple question presented for determination is whether a
party, by mere settlement upon lands of the United States, with a
declared intention to obtain a title to the same under the
preemption laws, does thereby acquire such a vested interest in the
premises as to deprive Congress of the power to divest it by a
grant to another party. If such be the effect of mere settlement,
with a view to preemption, upon the power of Congress to grant the
lands occupied to another party, it must operate equally to deprive
Congress of the power to reserve such lands from sale for public
uses of the United States, though needed for arsenals,
fortifications, lighthouses, hospitals, custom houses, courthouses,
or for any other of the numerous public purposes for which property
is used by the government. It would require very clear
Page 82 U. S. 87
language in the acts of Congress before any intention thus to
place the public lands of the United States beyond its control by
mere settlement of a party, with a declared intention to purchase,
could be attributed to its legislation.
The question here presented was before this Court, and was
carefully considered, in the case of
Frisbie v. Whitney,
reported in the 9th of Wallace. And it was there held that under
the preemption laws mere occupation and improvement of any portion
of the public lands of the United States, with a view to
preemption, do not confer upon the settler any right in the land
occupied,
as against the United States, or impair in any
respect the power of Congress to dispose of the land in any way it
may deem proper; and that the power of regulation and disposition,
conferred upon Congress by the Constitution, only ceases when all
the preliminary acts prescribed by those laws for the acquisition
of the title, including the payment of the price of the land, have
been performed by the settler. When these prerequisites have been
complied with, the settler for the first time acquires a vested
interest in the premises occupied by him, of which he cannot be
subsequently deprived. He is then entitled to a certificate of
entry from the local land officers, and ultimately to a patent for
the land from the United States. Until such payment and entry, acts
of Congress give to the settler only a privilege of preemption in
the case the lands are offered for sale in the usual manner -- that
is, the privilege to purchase them in that event in preference to
others. The United States by those acts enter into no contract with
the settler, and incurs no obligation to anyone that the land
occupied by him shall ever be put up for sale. They simply declare
that in case any of their lands are thrown open for sale, the
privilege to purchase them in limited quantities, at fixed prices,
shall be first given to parties who have settled upon the improved
them. The legislation thus adopted for the benefit of settlers was
not intended to deprive Congress of the power to make any other
disposition of the lands before they are offered for sale, or to
appropriate them to any public use.
Page 82 U. S. 88
The decision in
Frisbie v. Whitney was pronounced by a
unanimous Court, and subsequent reflection has satisfied us of its
entire soundness. The construction there given to the preemption
laws is, as there stated, in accordance with the construction
uniformly given by that department of the government to which the
administration of the land laws is confided and by the chief law
officers of the government to whom that department has applied for
advice on the subject. It is the only construction which preserves
a wise control in the government over the public lands and prevents
a general spoliation of them under the pretense of intended
settlement and preemption. The settler being under no obligation to
continue his settlement and acquire the title, would find the
doctrine advanced by the defendant, if it could be maintained, that
he was possessed by his settlement of an interest beyond the
control of the government, a convenient protection for any trespass
and waste, in the destruction of timber or removal of ores, which
he might think proper to commit during his occupation of the
premises.
The argument of the defendant's counsel and his criticism upon
the decision in
Frisbie v. Whitney are founded upon a
misapprehension of the language used in some previous opinions of
this Court, and particularly of language used in the opinion in the
case of
Lytle v. State of Arkansas. [
Footnote 7] This last case and the language there
used did not escape the attention of the court in the consideration
of
Frisbie v. Whitney. That and other cases, in which the
equitable rights of persons claiming under the preemption laws had
been protected against the legal title acquired by others is
disregard of their rights, were cited by counsel and commented upon
on the argument, as asserting principles inconsistent with the
construction of those laws given by the court. But the court,
without examining in the opinion the cases cited in detail, stated
that in nearly all of them the party, whose equitable right was
protected, had acquired a vested right by action of the land
officers, and payment and
Page 82 U. S. 89
acceptance of the price of the land, which those officers had
disregarded; and that in the other cases the successful party had
established his legal right of preference of purchase over others
under existing law; and that in these particulars those cases were
widely different from that of
Frisbie v. Whitney.
But inasmuch as counsel of the defendant, [
Footnote 8] who appeared also as one of the
counsel in this last case, again urges upon our attention the case
of
Lytle v. Arkansas, and contends with much earnestness
that it sustains principles in conflict with those expressed in
Frisbie v. Whitney, and also settles the case at bar in
favor of the defendant, we are induced to state at some length what
that case was, and what it actually decided. In that case, a
preemptioner by the name of Cloyes claimed a right to make an entry
of certain lands under the act of Congress of May 29, 1830. That
act gave to every occupant of the public lands prior to its date,
who had cultivated any part thereof in the year 1829, a right to
enter at the minimum price, by legal subdivisions, any number of
acres not exceeding one hundred and sixty, including his
improvements, provided the land was not reserved for the use of the
United States, or either of the several states. It required, before
any entries could be made, that proof of settlement or improvement
by the claimant should be made to the satisfaction of the register
and receiver of the land district, pursuant to rules prescribed by
the Commissioner of the General Land Office. Under rules thus
prescribed proof was made of the cultivation and improvement of
Cloyes which was satisfactory to the register and receiver, and
payment of the price was offered by him. Those officers held that
he was entitled to enter one of the fractional sections claimed,
the one upon which his improvement was made and not the others, and
issued a certificate to him to that effect. The plats of the
township
Page 82 U. S. 90
where the land was situated not having been furnished by the
surveyor general, as required, the formal entry with the register
could not be made, but in lieu thereof, under instructions of the
Commissioner of the General Land Office proof identifying the land
claimed was allowed to be filed the act of 1830 expired in one
year, and the public surveys of the land were not completed until
December, 1833, and were not returned to the land office until the
beginning of 1834. Cloyes had thus done all that he could do to
perfect his right to the title of the United States under a law
which opened the land for sale in limited quantities, at specified
prices, to its occupants and cultivators.
Subsequently, in July, 1832, Congress passed an act giving to
parties entitled to preemption under the act of 1830 one year from
the time when the township plats should be returned to enter the
lands. Under this act, the heirs of Cloyes, he having died, made
payment to the receiver for the fractional section to which his
preemption claim was allowed in 1830, as already stated, and also
for the fractional sections to which his claim was rejected, and
applied to the register to enter them, but that officer refused to
allow the entry. The court held that so far as the fractional
quarter section to which the claim was allowed by the register and
receiver in 1830 was concerned, the refusal did not affect the
right of the claimant. And it is with respect to the inability of
Cloyes to make the entry in 1830 for want of the township plats
which the surveyor general had failed to return, and the refusal of
the register to allow the entry subsequently under the act of 1832
that the language cited by counsel was used by the court -- namely
that,
"It is a well established principle that when an individual, in
the prosecution of a right, does everything which the law requires
him to do, and he fails to attain his right by the misconduct or
neglect of a public officer, the law will protect him. In this
case, the preemption right of Cloyes having been proved and an
offer to pay the money for the land claimed by him under the act of
1830, nothing more could be done by him and nothing more could be
required of him under that act. And subsequently, when
Page 82 U. S. 91
he paid the money to the receiver, under subsequent acts, the
surveys being returned, he could do nothing more than to offer to
enter the land, which the register would not permit him to do. This
claim for preemption stands before us in a light not less favorable
than it would if Cloyes or his representatives had been permitted
by the land officers to do what in this respect was offered to be
done."
There is no question about the correctness of the doctrine here
announced; it is only a familiar principle which is stated, that
where one offers to do everything upon which the acquisition of a
right depends, and is prevented by fault of the other side, his
right shall not be lost by his failure.
The principle only applies where, by law or contract, the
acquisition of a right is made dependent upon the performance of
certain specified acts. There can be no such thing as the
acquisition of a right of preemption -- that is, of a right to be
preferred in the purchase of property of the United States until
such property is open for sale. In the case from Arkansas, the law
of 1830 authorized the entry and sale of the land to the occupants
and cultivators; it prescribed certain things to be done to entitle
them to purchase; these things were done, or would have been done
by Cloyes if the officers of the government, appointed to aid in
their performance, had not failed in their duty. The hindrance to
the complete performance of everything required of the claimant
could not impair his rights. And it was immediately after affirming
the validity of his claim, notwithstanding this hindrance, that the
court used the language upon which so much stress is placed by the
defendant's counsel, to the effect that a claim of preemption is
not a "shadowy right," but when covered by the law is a legal
right, subject to be defeated only by a failure to perform the
conditions annexed to it. This language was undoubtedly correct as
applied to the claim of Cloyes, as then situated, which gave
occasion to it, and it is in a general sense correct as applied to
every claim of preemption. Such claim, it must be remembered, is
only a claim to be preferred in the purchase of lands of the United
States in limited quantities, at fixed prices, when the lands
Page 82 U. S. 92
are offered for sale in the usual manner. When one has acquired
this claim by complying with the conditions of the law for its
acquisition, he has a legal right to be thus preferred when the
sale is made as against others asserting a similar right under the
law which the court will enforce in proper cases. But the claim of
preemption, as already said, can never arise when the law does not
provide for a sale of the property. Until thus sanctioned by the
law, the claim, as stated by the court in that case, has no
existence as a substantive right.
There is nothing in the case of the defendant which is at all
analogous to that of Cloyes. Here, the land occupied by the
defendant was never offered for sale, but was excluded from any
possible sale by appropriation to perpetual public use, resort, and
recreation. Nothing was therefore required or could be required of
the defendant for the acquisition of the title, and nothing could
be or was done by him to that end.
In the case from Arkansas, the right of Cloyes had been defeated
by the failure of the executive officers to perform their duty
under the law, he having complied fully with its provisions, except
so far as he was prevented by such failure, and having thus
acquired a right to the title of the government. In the present
case, no default on the part of the executive officers is alleged
or pretended. The ground of complaint is that the defendant could
not acquire the title under the preemption laws because Congress
had granted the land to the state and thus withdrawn it from sale.
In the one case, it is the action of the executive officers which
is the ground of complaint; in the other, it is the action of
Congress.
The court cannot assume, and then found a decree upon the truth
of the assumption, that the defendant would have complied with the
provisions of the preemption laws had Congress never made the
grant. Nor could it make any such assumption, even if it were held
that those laws surrendered unconditionally the entire public lands
to settlers instead of allowing to them the privilege of preemption
provided the lands are offered for sale in the usual manner.
Page 82 U. S. 93
In June, 1832, Congress passed an act granting to the Territory
of Arkansas one thousand acres of land contiguous to and adjoining
the town of Little Rock, for the erection of a courthouse and jail.
The grant was not of any specific tract, but only of a specified
quantity to be selected by the governor. Previous to the selection
by him and previous to the grant, Cloyes had acquired a right, as
already stated, to the title of the government. This was a vested
right, and the court very properly held that Congress, in making
the grant to Arkansas, did not intend to impair vested rights, and
that the grant must be so construed as not to interfere with the
preemption of Cloyes. No other ruling would have been consistent
with settled principles. Had the lands in the Yosemite Valley been
open for sale, and had Hutchings acquired a right to the title of
the United States by complying with all the conditions upon which
the acquisition of that title depended before the grant to the
state, his position would have some analogy to that of Cloyes. His
right to the title would then have been a vested right, and the
grant to the state would have been construed so as not to interfere
with his preemption. But his declarations as to what he would have
done had the land not been withdrawn by Congress from the operation
of the preemption laws, are unavailing for any purpose.
The case of
Lytle v. Arkansas is confessedly the
strongest case which counsel can cite in support of the anomalous
views advanced by him. It is manifest from the statement we have
made of the facts of that case, that neither the case itself nor
the language used in the opinion of the court, when considered in
connection with the facts, give the slightest countenance to those
views; but that the decision of the court and the doctrines
expressed in the opinion, are in entire harmony with the principles
announced in
Frisbie v. Whitney. The whole difficulty in
the argument of the defendant's counsel arises from his confounding
the distinction made in all the cases, whenever necessary for their
decision, between the acquisition by the settler of a
legal
right to the land occupied by him as against the owner, the
United States,
Page 82 U. S. 94
and the acquisition by him of a
legal right as against other
parties to be preferred in its purchase, when the United
States have determined to sell. It seems to us little less than
absurd to say that a settler or any other person by acquiring a
right to be preferred in the purchase of property, provided a sale
is made by the owner, thereby acquires a right to compel the owner
to sell, or such an interest in the property as to deprive the
owner of the power to control its disposition.
The act of California, of February, 1868, attempting to grant
the premises in controversy to the defendant is, by its own terms,
inoperative until ratified by Congress. No such ratification has
ever been made, and it is not believed that Congress will ever
sanction such a perversion of the trust solemnly accepted by the
state.
Judgment affirmed.
[
Footnote 1]
13 Stat. at Large 325.
[
Footnote 2]
5 Stat. at Large 453.
[
Footnote 3]
See opinion of Mr. Justice Miller,
76 U. S. 9
Wall. 194.
[
Footnote 4]
10 Stat. at Large 246.
[
Footnote 5]
Ib., 268.
[
Footnote 6]
12
id. 410.
[
Footnote 7]
50 U. S. 9 How.
333.
[
Footnote 8]
Mr. Julian's name was printed as one of the counsel to the brief
filed for the defendant in
Frisbie v. Whitney, though his
name is not given in the report of the case in 9th Wallace he not
having participated in the oral argument. -- REP.
