57 Colo. 53 | Colo. | 1914
delivered the opinion of the court:
The court had jurisdiction of the cause, and the only question involved relates to the sufficiency of the complaint to state a cause of action. The facts are undisputed, and the proposition is whether on these facts the land department was authorized by law to issue a patent to the defendant.
It has frequently been decided by the supreme court of the United States that patents for lands which have been previously granted, reserved from sale, or appropriated, are void, and that actions may be maintained to annul such patents. — Morton v. Nebraska, 21 Wall. 660, 22 L. Ed. 639; Burfenning v. Chicago, St. P. M. & O. R. Co., 163 U. S. 319, 41 L. Ed. 175, 16 Sup. Ct. R. 1018.
These decisions are based upon the ground that the action of the officials of the land department beyond the • scope of their authority is void. We think this declaration of the law is applicable here. The local land office had rendered judgment from which plaintiff appealed to the commissioner of the general land office and the secretary of the interior. Pending the disposition of this appeal, which was subsequently decided in favor of plaintiff, the local land office entertained the application of defendant for patent and granted him title. This was beyond their authority for the reason that pending the disposition of the appeal the judgment of the local officials stood suspended, and they were without authority to entertain the application of either party for title.
This being the situation and plaintiff being a claimant of the premises, may maintain an action to annul the patent procured by the defendant, otherwise the action of the land department, which was without authority, deprives plaintiff of all remedy. The secretary of the interior ordered a rehearing before the local land office.
Consequently his only redress is in the courts to have the patent cancelled, which if ordered will place the parties in the position to have their rights to the land in controversy determined by the land department in accordance with the order of the secretary of the interior.
The judgment of the county court is reversed and the cause remanded with directions to overrule the demurrer, and for further proceedings according to law.
Judgment reversed and cause remanded.
Chief Justice Mussbr and Mr. Justice White concur.