1. A bill to compel a conveyance from a person to whom the
Probate Judge of Arapahoe County, Colorado Territory (in which
county is situated Denver), had conveyed a lot in pursuance of the
Acts of Congress of May 23, 1844, and May 28, 1864, for the relief
of the City of Denver, and of the Act of Colorado Territory of
March 11, 1864, dismissed:
1st. Because the defendant was in possession of the lot in
question at the time of the passage of the act for the relief of
the City of Denver, and at the time of the entry of the lands made
by the probate judge, by means of which he became and was the party
by law entitled to the deed from the probate judge, and,
2d. Because the appellant, by omitting to sign and deliver the
statement required by section four of the territorial statute,
became barred of the right to the lands both in law and equity.
2. Notices required by statute presumed to have been given by a
probate judge, he having made a conveyance of land which could have
been properly made only after such notices given.
The City of Denver, which is in the County of Arapahoe, Colorado
Territory, was originally laid out by a company or association of
persons on the public domain of the United States before the same
had been surveyed and became subject to entry. And the company was
aided by the privileges of preemption, at the minimum price, being
secured to settlers and occupants of lots by the general enactment
of May 23, 1844, [
Footnote 1]
"for the relief of the citizens of the towns upon the lands of the
United States under certain circumstances," and by a special
enactment "for the relief of the citizens of Denver" of the 28th of
May, 1864, [
Footnote 2] whereby
the probate judge of the county was constituted a trustee to enter
the land selected for the site of the town when the same became
subject to entry, and to pass the legal title to the settlers and
occupants of lots, under rules and regulations prescribed by the
legislative authority of the Territory of Colorado.
These acts being in force, the Probate Judge of Arapahoe
Page 83 U. S. 332
County having, on the 6th of May, 1865, entered the town site
under the acts referred to, on the 10th of May, 1865, and in
accordance with the directions of a Territorial Act of Colorado, of
March 11, 1864, advertised for four weeks thereafter in a weekly
newspaper published at Denver (though whether also by posting
notices in three public places in the town, which a territorial act
of Colorado required, did not appear, the judge himself being
dead), the fact that he had made the said entry, and that all
claimants of lots in the town should within ninety days present
their claims to him.
Mrs. Louisa McClelland, then, as the evidence in the case went
strongly to show, in occupation of lot No. 6, block 69, in Denver,
and who had erected valuable improvements on it and was then paying
taxes upon it -- all without apparent knowledge of any counterclaim
-- accordingly presented her claim for the said lot, and there
being no counterclaim made to it by anyone, the probate judge, on
the 11th of August, 1865, conveyed the said lot to her. She being
thus in possession, one Cofield, in April, 1869, filed a bill
against her to compel a conveyance to him. The bill alleged an
equitable title to the lot in the complainant by the occupation and
possession; a prior settlement, to-wit, by a certain Preston, in
1859, a conveyance by Preston to one Hall, and after several
intermediate conveyances, by which the lot came to one Bates, a
conveyance by Bates to the complainant in 1869. [
Footnote 3]
The court below having dismissed the bill, the complainant took
this appeal.
MR. JUSTICE HUNT delivered the opinion of the Court.
The territory upon which stands the City of Denver, Colorado,
was entered upon, occupied, and possessed by numerous
Page 83 U. S. 333
persons before the same was surveyed and had become subject to
public entry. Occurrences like the one which gives rise to this
bill seem to have been common, and the rights of the parties were
protected and regulated by an Act of Congress passed May 23, 1844.
A special act was also passed by Congress on the 28th of May, 1864,
"for the relief of the citizens of Denver." It is by the principles
prescribed in these several statutes that the rights of the parties
in this suit are to be determined.
The first of the acts to which reference has been made [
Footnote 4] authorizes the probate
judge to enter at the proper land office the land settled and
occupied by such occupants of a town or city. It is also enacted
that such entry by him shall be
"in trust for the several use and benefit of the occupants
thereof according to their respective interests, the execution of
which trust as to the disposal of the lots in such town, and the
proceeds of the sale thereof, to be conducted under such rules and
regulations as may be prescribed by the legislative authority of
the state or territory in which the same is situated."
The act "for the relief of the citizens of Denver, in the
Territory of Colorado," [
Footnote
5] authorizes
"the probate judge of Arapahoe County to enter at the minimum
price, in trust for the several use and benefit of the rightful
occupants of said land, and the
bona fide owners of the
improvements thereon, according to their respective interests, the
following legal subdivisions of land,"
describing certain specific divisions, of which the lot in
question is a portion.
The Act of the Territorial Legislature of Colorado passed March
11, 1864, contained numerous provisions regulating the rights of
settlers and the manner in which their rights shall be ascertained.
The second section enacts that the title from the probate judge
shall be in trust for and conveyed to
"the person or persons who shall have, possess, or be entitled
to the possession or occupancy thereof according
Page 83 U. S. 334
to his, her, or their respective rights or interest in the same
as they existed in law or equity at the time of the entry of such
lands or to his, her, or their heirs or assigns."
This regulating act of the territory is in harmony with the acts
of Congress. It expresses more explicitly than do those acts the
statement that the occupation and possession which gives the right
is that which exists at the time of the entry of the lands by the
probate judge. Those in possession of the land when the entry shall
be made by the probate judge are the persons for whom he holds the
lands in trust and to whom he is to make the respective deeds.
Although less explicitly declared, this is the construction and
meaning of the acts of Congress also.
The land on which the City of Denver stands was entered by the
probate judge in May, 1865. The evidence is strong and quite
convincing that at that date, as well as at the time of the passage
of the enabling act (May, 1864), Mrs. McClelland, the defendant,
was in the actual possession of lot No. 6, with valuable
improvements made thereon and paying the taxes on the same. Such
must have been the conclusion of the court below, and we concur in
it. The result is fatal to the plaintiff's right of recovery.
Again: section three of the territorial act, to which reference
has been made, makes it the duty of the judge entering the land,
within thirty days after such entry, by posting a notice in three
public places and by publishing the same in a newspaper of the
town, if there be one, to give notice of such entry. This notice is
required to be published once in each week for three weeks and to
contain an accurate description of the lands so entered. It was
published by the probate judge in a newspaper published at Denver
for four weeks commencing May 10, 1865. The judge was not living at
the time of the trial, and there was no evidence that the notice
was posted in three public places in the town. We think this is a
case in which the presumption applies that the officer has done his
duty, especially as no provision was made in the act for procuring
the evidence that notice had been published. The case comes within
the rule so well
Page 83 U. S. 335
settled in this Court
"that the legal presumption is that the surveyor, register,
governor, secretary of state have done their duty in regard to the
several acts to be done by them in granting lands, and therefore
surveys and patents are always received as
prima facie
evidence of correctness. [
Footnote
6]"
Section four of the territorial act, to which reference has been
made, enacts as follows:
"§ 4. Each and every person or association, or company of
persons, claiming to be an occupant or occupants, or to have
possession or to be entitled to the occupancy or possession of such
lands, or to any lot, block, or share therein, shall, within ninety
days after the first publication of such notice . . . sign a
statement in writing, containing an accurate description of the
particular parcel or parts of land in which he claims an interest,
. . . and deliver the same into the office of the judge or judges,
and all persons failing to sign and deliver such statement within
the time specified in this section, shall be forever barred the
right of claiming or recovering such lands or any interest or
estate therein . . . in any court of law or equity."
No language could be more explicit to make the failure to
deliver the statement within the time specified a bar, an absolute
bar, to the recovery of the same, however strong might be the
equitable claim to the land so lost.
This regulation is a reasonable one. In a crowded district, with
a changing frontier population, it might well be required that the
claim should be interposed at an early day.
It is not pretended that the appellant or anyone on his behalf
made the statement required by section four. Its absence bars his
claim in every court either of law or equity.
For the two reasons stated:
1st. That the defendant below was in possession of the lot in
question at the time of the passage of the act for the relief of
the City of Denver and at the time of the entry of the lands made
by the probate judge, by means of which she
Page 83 U. S. 336
became and was the party by law entitled to the deed from the
probate judge, and
2d. That the appellant, by omitting to sign and deliver the
statement required by section four of the territorial statute,
became barred of the right to the lands both in law and equity.
We are of the opinion that the judgment of the court below
dismissing the complaint was correct, and that it must be
Affirmed.
[
Footnote 1]
5 Stat. at Large 657.
[
Footnote 2]
13
id. 94.
[
Footnote 3]
There was also an allegation of collusion with the probate
judge, but this was denied on the answer being wholly disproved,
and being put aside by the court, need not be noticed.
[
Footnote 4]
May 23, 1844, 5 Stat. at Large 657.
[
Footnote 5]
May 28, 1864, 13 Stat. at Large 94.
[
Footnote 6]
See the numerous cases cited in Cowen & Hill's
Notes to Phillips' Evidence, note 174, "Presumptions."
