2 Wash. 344 | Wash. | 1891
Lead Opinion
The opinion, of the court was delivered by
— This was the usual action to have the patentee of lands from the United States held the trustee of one claiming to have had the equitable title to the land under a prior pre-emption which had been canceled by the department of the interior. The pre-emption declaratory statement was filed June 26, 1874; final proof was made May 4, 1875, and the certificate of entry was issued by the register and receiver on the same day. The entryman was one Minnick, who conveyed the land by deed to the appellant (plaintiff below) a few days later. On the 12th of January, 1877, the commissioner of the general land office, without any notice to the grantee of Minnick, ordered a cancellation of the entry on the records of the general land office, and on the 19th day of March, 1879, the secretary of the interior, on appeal, affirmed the decision of the commissioner and made the cancellation final. The defendants’ general demurrer to the complaint was sustained and the •action dismissed. Error is assigned upon the judgment against the plaintiff, he having declined to plead further»
The defendant’s decedent, W. C. Hill, and J. Vance Lewis, in 1880, entered the land with Porterfield scrip, and received patent therefor January 9, 1882. The complaint showed all the facts, and contained these allegations in paragraph 9:
“That after the allowance of said pre-emption entry by said Minnick, it was ascertained by said Minnick and by the said commissioner of the general land office, and by said secretary of the interior, that the same was embraced within the limits of the city of Seattle, as fixed by said legislative assembly, by said void and invalid act approved December 2, 1869, which is hereby referred to, and by such reference is made a part of this complaint, and that thereafter and before the cancellation of said entry by said commissioner and said secretary, it was duly shown to the satisfaction of the said commissioner and said secretary that said entry of said Minnick included only vacant, unoccupied lands of the United States, at the date of the said Minnick’s said settlement, nor settled upon or used for any municipal purposes nor devoted to any public use of any town, and that said entry was regular in all other respects.”
The first point urged by appellant is, that the act of 1869 was void, because the incorporation of cities and towns was not within the powers conferred upon territorial legislatures, quoting Eev. St. U. S., § 1889, prohibiting the granting of private charters or special privileges. The act of congress, June 8, 1878, limited the construction of § 1889, and under it the supreme court of the territory, in Seattle v. Tester, 1 Wash. T. 571, held that the city of Seattle was
It remains to consider the effect of the act of March 3, 1877 (19 U. S. St. at Large, 392). Prior to this act the several pre-emption acts of congress authorized public lands to be entered and patented by municipal corporations and incorporated towns, to the extent of not exceeding 2,240 acres, and reserved all lands within the limits of any incorporated town from sale under the pre-emption and homestead laws. Through the action of the states and territories, however, the object of the statute, which was to reserve sufcieut land for town-site purposes, was perverted by including areas far beyond the legal limits of town sites in acts of incorporation. At the same time there was no
The solution of this difficulty seems reasonably clear. The land laws of the United States do not depend upon, or have any connection with, the statutes of the states or territories. The land department surveys the public lands, records the surveys upon plats and in field notes, and prepares the way for the settler to deal with the officers. If at the time of the survey of lands a town is found thereon, it is noted upon the plats where every one can see, and is charged with notice of it. If the town springs up after the plat is filed, and becomes incorporated, at least since the act of 1877, abundant provisions have existed whereby the lawful area of the town can be noted and reserved upon the plats. But the plats on file in the public land offices, where people resort to find what lands are subject to entry, unless the municipal authorities have acted in the matter, show no town-site reservations; and therefore registers and receivers frequently allowed entries of land within these legislative limits wherever the conditions were that the lands were vacant and unoccupied and there were no adverse claims. United States v. Schurz, 102 U. S. 378. In 1877, therefore, this state of things existed. En
We hold, therefore, that the complaint, on the point in controversy, was good, and that the demurrer should have been overruled. Judgment reversed, with instructions to the court to overrule the demurrer and proceed with the cause.
Dissenting Opinion
(dissenting).— I am unable to agree with the conclusions of the majority of the court as to the effect of the act of March 3, 1877, upon Minnick’s entry. I think that it appears from the complaint that the secretary of the interior found as a fact that Minnick had actual knowledge that the land in question was within the corporate limits of Seattle at the time he made his entry thereof. And this finding of fact, under the circumstances set up in the complaint, is conclusive upon all parties, and cannot be questioned in the courts. Upon finding this fact of actual knowledge by Minnick that the land was not subject to