284 F. 702 | 9th Cir. | 1922
(after stating the facts as above). Upon the appellants’ own showing, they have no ground for equitable relief. The land which they attempted to enter as a homestead in 1907 had been withdrawn from settlement in 1902 when scrip was filed thereon by the railway company, Weyerhaeuser v. Hoyt, 219 U. S. 380, 31 Sup. Ct. 300, 55 L. Ed. 258. Conceding that title to the land was illegally acquired by the railway company, the appellants are in no position to assert the illegality of the title. Upon their own showing they are- estopped by the proceedings in the Land Department. They attack the validity of those proceedings on the ground of errors in fact or errors of mixed law and fact, and not upon errors of law, disregarding the rule that the jurisdiction of the courts may be invoked only upon the showing that the Land Department has disobeyed or misapplied the law applicable to the case (Marqueze v. Frisbie, 101 U. S. 473, 25 L. Ed. 800), and the further rule that a
In the complaint are allegations of fraud on the part of the appellees in that they falsely represented to the Rand Department that the land in controversy was nonmineral and unoccupied, when in fact the land was openly and notoriously known to contain coal, and possession of portions thereof had been maintained by coal land claimants. But it is well established that the fraud which will entitle an unsuccessful land claimant to relief in the courts must be such as prevented him from fully presenting his side of the controversy. It is not enough that there may have been false allegations or false testimony in the proceedings. Ross v. Stewart, 227 U. S. 530, 33 Sup. Ct. 345, 57 L. Ed. 626; Estes v. Timmons, 199 U. S. 391, 26 Sup. Ct. 85, 50 L. Ed. 241.
The appellants assert as applicable to their case that, until approval by the Secretary of the Interior of a lieu land selection, the land is open to homestead settlement, citing Sjoli v. Dreschel, 199 U. S. 564, 26 Sup. Ct. 154, 50 L. Ed. 311, and Osborn v. Froysett, 216 U. S. 571. Conceding that certain language in the reasoning of the court in those cases may lend color to the contention, later decisions of the Supreme Court make it clear that lands in such a situation are not open to homestead settlement. Wyoming v. United States, 255 U. S. 489, 41 Sup. Ct. 393, 65 L. Ed. 742; Weyerhaeuser v. Hoyt, 219 U. S. 380, 387, 31 Sup. Ct. 300, 303 (55 L. Ed. 258), where it was said:
“The requirement of approval by the Secretary consequently imposed on that official the duty of determining whether the selections were lawful at the time they were made, which is inconsistent with the theory that any one could appropriate the selected land pending action of the Secretary.”
The decisions so cited and others establish the principle that, as between conflicting claimants to public lands, he whose initiation is first in time, if adequately followed up, is to be deemed first in right. That principle applied to the facts of the present case means that the railway company’s selection list in 1902 withdrew the land in controversy from homestead settlement, and, inasmuch as the list was approved and patent issued for the land so selected, the right of the railway company dates from the time of the original filing, and the land was not open to homestead settlement on September 25, 1906, when the appellants entered into possession of the same.
The appellants rely upon Act Cong. March 3, 1909, 35 Stat. 844 (Comp. St. § 4665), and Act June 22, 1910, 36 Stat. 583 (Comp. St. §§ 4666^1668), and contend that under those statutes they are entitled to make a homestead entry of the surface. But the appellants cannot avail themselves of those statutes. It is made an essential prerequisite to relief thereunder that the homestead settlement of the homestead claimant must have been made in good faith. The good faith of the appellants is denied by their own allegations. They have alleged in
We find no error.
The judgment is affirmed.
