173 P. 326 | Idaho | 1918
Lead Opinion
Appellant brought this action to quiet title to certain lands as against any adverse claim of respondents. Respondents disclaim any interest in the lands described* in the complaint, except lot 2 of section 11. The title of appellants to this lot is based on a patent issued by the United States to the Northern Pacific Railway Co., pursuant to the provisions of the act of Congress of July 2, 1864, granting lands to said company, and subsequent acts, particularly that of July 1, 1898, by which last-named act the railway company was given the right to select lands ■in lieu of others which it was compelled to relinquish. The respondent, John Chriswell, claims that from 1896 he has continuously lived upon and been in possession of said lot 2 with his family, basing his right thereto on certain mining claims. At the trial the appellant introduced in evidence, as proof of publication of the notice that the patent had been applied for by the railway company, exhibit 1, which states that the notice was published in a newspaper for thirty days only. The district court held that the notice was not published for the full time required by the rules and regulations» of the Department of the Interior, and the patent could be attacked in this action. Therefore the district court admitted evidence as to the character of the land and found from the evidence that it was mineral in character and was in the occupation of an actual settler at the time the patent was issued. From this the district court concluded that the patent was wrongfully issued, that the title of the appellant must fail, and that appellant was not entitled to a judgment quieting its title.
Appellant made a motion for a new trial, which was denied by the court. Appellant appealed from the judgment and also from the order of the court denying the motion for a
The principal ground of the motion to dismiss the appeal from the order denying a new trial is that no undertaking was given as required by law. It appears that an undertaking was given after the taking of the appeal from the order denying a motion for a new trial, but respondents claim that it is a nullity in that it does not specifically state whether it is given on the appeal from the judgment or on the appeal from the order denying a motion for a new trial. “Under the provisions of sec. 4809, Rev. Codes, if an undertaking on appeal is insufficient or defective in any respect, such insufficiency or defect is waived unless the respondent, within twenty days after the filing of such undertaking, shall file and serve on the appellant, or his attorney, a notice pointing out specifically the defects and insufficiencies of such undertaking, and no defect or insufficiency not thus specifically pointed out shall subsequently be urged against the undertaking on appeal.” (Martin v. Wilson (on rehearing), 24 Ida. 353, 363, 134 Pac. 532.)
The alleged defect in the undertaking in that case was similar to the defect alleged in the undertaking in this case. The respondents did not file and serve on appellant or its attorneys a notice pointing out specifically the defect and
Appellant’s motion to strike respondents’ brief from the files is denied and it is ordered that the same may be filed.
Proceeding to the consideration of the case on the merits, the principal question is whether the district court had jurisdiction'to go back of the patent and pass upon the character of the land. The land department, in issuing the final receipt, passed upon the character of the land and held that it was nonmineral in character. In proceedings for the alienation of public lands, in the absence of fraud or imposition, or mistake, the action of the land department, upon matters of fact cognizable by it, is conclusive. (Lee v. Johnson, 116 U. S. 48, 6 Sup. Ct. 249, 29 L. ed. 570.) The decision of the land department as to the actual physical character of certain land is not subject to review by the courts. (Heath v. Wallace, 138 U. S. 573, 11 Sup. Ct. 380, 34 L. ed. 1063; Burke v. Southern Pac. R. R. Co., 234 U. S. 669, 34 Sup. Ct. 907, 58 L. ed. 1527.)
In an attempt to take the case out of the above well-settled rule, respondents rely upon the following facts:
1st. That according to the rule adopted by the Secretary of the Interior the notice of a railroad company’s application for a selection of land in satisfaction of a grant should be published for sixty days, once a week for ten weeks. (Miner v. Mariott et al., 2 L. D. 709; Instructions, 19 L. D. 21 and 105.)
2d. Plaintiff’s exhibit 1, introduced in evidence by the appellant on the trial below, states that the notice of the application was printed in a newspaper once each week for five consecutive weeks, and this is the only showing as to the publication.
Based on these facts ‘ respondents contend that the land ‘department had no. jurisdiction or authority to issue a patent. They therefore invoke the rule that a collateral attack may be made upon a patent if it is issued in a case where the
"When land is properly subject to the action of the land department and that department has acted in regard to it, it will be conclusively presumed that all the preliminary requirements have been properly complied with, and the records of the department are not admissible to show that such requirements have not been complied with. (St. Louis Smelting & Ref. Co. v. Kemp, supra; Last Chance Min. Co. v. Bunker Hill etc. Min. Co., 131 Fed. 579, 66 C. C. A. 299; Galbraith v. Shasta Iron Co., 143 Cal. 94, 76 Pac. 901.)
If’the records of the land department are not competent evidence to impeach the regularity of its proceedings, then, a fortiori, plaintiff’s exhibit 1 is not competent evidence for that purpose. The patent was issued on May 19, 1910; exhibit 1 is an ex parte affidavit sworn to on March 30, 1915. If an ex parte affidavit, sworn to five years after the issuance of a patent, should be allowed to overcome the presumption of regularity, which attends the issuance* of a patent, then
Appellant offered exhibit 1 in evidence and respondents objected to it. Having offered the exhibit in evidence, appellant would not ordinarily be in a position to complain of its admission as error. However, since, as a matter of law, exhibit 1 cannot have the effect of invalidating the action of the land department in issuing the patent, we conclude that the patent is valid, and the district court had no jurisdiction to go back of it and open up the question of the character of the land. Two of the specifications of error of law set forth in the motion for a new trial are as follows: “The court erred in permitting the introduction of any evidence tending to attack or attacking the validity of the patent issued to lot two (2) by the United States to plaintiff’s grantors.” “The court erred in permitting evidence to.be introduced as to the mineral or nonmineral character of the land after same had been decided by the proper and lawful authorities.” We conclude that the above specifications of error are well taken.
As the court cannot consider the appeal from the judgment, for reasons given above, but can only consider the appeal from the motion denying a new trial, it seems that the court has no power to finally dispose of the case on this appeal. The court has jurisdiction merely to order a new trial. Accordingly, the judgment of the trial court is reversed and the cause is remanded to that court with directions to grant a new trial in accordance'with the views herein expressed.
Costs are awarded to appellant.
Rehearing
ON PETITION POR REHEARING.
Respondents’ counsel contend that the court in its opinion in this case does not pass upon the questionoas to whether the respondents can attack the appellant’s title by showing that they were in occupa
