7 Wyo. 66 | Wyo. | 1897
Plaintiff in error complains of a judgment of the district court for Albany County in favor of the defendants in error for the recovery of the possession of the southwest quarter of section four (4), in township sixteen (16), north of range seventy-six (76), west of the sixth principal meridian, located in the county of Albany in this State. Said lands were public lands of the United States, the strict legal title to which remained in the government, no patent having issued to any one therefor.
The right of the defendants in error to the possession of the land was claimed by reason of final certificate from the United States upon a desert-land entry, including that tract with others, made by one Thomas J. Fisher and sundry mesne conveyances, which vested in them all the right, title, and interest of said Fisher under his said entry.
Plaintiff in error was in possession under a homestead entry, made February 15, 1894, for which he held receiver’s duplicate receipt; and it was claimed on his behalf that the entry of Fisher had been canceled, and that there were no existing rights thereunder. To sustain that claim there was introduced in evidence, upon the trial, a letter of the assistant commissioner of the General Land Office to the register and receiver of the local land office, dated November 20, 1888, wherein it is stated that in June, 1877, Thomas J. Fisher applied to enter certain lands, including the tract in controversy, under the desert-land act, which application being defective in form and unaccompanied by the payment required,
There was introduced by the defendants in error a letter dated Jan. 11, 1889, from the receiver of the local land office to Mr. Fisher, referring to the above-mentioned letter of the commissioner, and notifying him of the effect thereof, and also a letter from the register to the same
Upon these facts it is insisted that the entry of Fisher was duly canceled, and that neither he nor his grantees had thereafter any interest in the premises. The additional fact ought to be mentioned that, on the trial, it was sought to prove the death of Fisher some four or five years prior thereto, but the witnesses could only testify that they understood he had died ‘ ‘ between four and six years ago.”
As the decision of the commissioner of November 20, 1888, is entirely based upon the decision of April 29, 1880, which was rendered in course of the contest of Fisher against Carver, it would seem that the decision of the last-named date ought to have been produced, if, indeed, it is not a necessary part of the proceedings resulting in the final cancellation of Fisher’s entry. As we read the proceedings, there appears to have been a misconception of the facts in the minds of counsel in some important particulars. In the first place, it is very evident that the contest initiated by Fisher against the claim of Carver was closed by the decision of the commissioner, April 29,
In addition to the fact that such entry could not, in the very nature of things, have been involved in the contest which was tried long before it was made, is the almost absolute probability, arising from the slight difference in time, that the fact that Fisher had made an entry which had been accepted, but ten days before his letter of April 29, 1880, was not within the knowledge of the commissioner. The apparent assumption of the assistant commissioner, in 1888, that the letter of April, 1880, had some application and reference to Fisher’s entry No. 197, seems to have been without any possible foundation. The assistant commissioner states in his letter of November 20, 1888, that the declaratory statement of Carver was canceled by relinquishment July 3, 1880, but the date of that relinquishment is not disclosed either in the letter. or by other evidence. We apprehend that it is probable it was _ executed before that date, and at such time that when Fisher made his entry in April, the fact of such relinquishment was known to the register and receiver, but whether or not that is so is doubtless unimportant.
It is also evident that if the local land officers reported the entry for cancellation on account of expiration of •statutory period, they had no reference to the period for submitting final proofs, but to the expiration of the period for taking an appeal from the decision of the commis
If the decision of the commissioner of November 20, 1888, was not a part of the contest proceedings of Fisher v. Carver, from what proceedings did it spring? We are not inclined in the absence of an explanation to that effect in the letter itself, to view it as the result of a consideration of the final proofs upon which the final certificate had been issued. The letter was written five years later, and does not refer in any way to such proofs, and, as there is no evidence of any other hearing than that in the contest already alluded to, and that which necessarily occurs upon the production of the final proofs, and the letter itself bases its conclusions and judgment upon the decision of April 29, 1880, we are irresistibly led to conclude that, assuming the entry No. 197 to have been involved in the contest of 1877-1878, and the entry rejected, it was found that the final certificate had nothing to stand on, and, therefore, as an independent act, the commissioner proceeded to hold the same for cancellation. In the view we are constrained to take of this case, the important feature connected with the letter of 1888, is the fact that the entry of Fisher, under which his rights and those of his grantees arose, had not been involved in any hearing with regard to its validity, or the character of .the land covered thereby. In the case of Caldwell v. Bush, 45 Pac., 488, this court held that after a healing of which the entryman had notice, the land department of the government could cancel an entry for fraud, but that, in such case a hearing and notice were necessary. Such is the law announced by the Supreme Court of the United States. (Orchard v. Alexander, 157 U. S., 372; Cornelius v. Kessel, 128 U. S., 456.)
The order of the department in respect to the land in controversy in November, 1888, was that Fisher’s entry and final certificate should be held for cancellation, from
The necessity for such a hearing is also- recognized by the department of the interior. In the case of William A. Fowler, 17 L. D., 189, one Dailey made a homestead •entry for certain land April 9, 1892, and Fowler thereafter, May 5, 1892, made a like entry for it. The commissioner of the General Land Office held the entry of Fowler for cancellation without a hearing. First Assistant Secretary Sims, in the course of an opinion rendered upon appeal from the decision of the commissioner, said, “While it is true that the entry of Fowler was improperly allowed by the local officers, yet, it having been made matter of record, it should not have been held for cancellation, without notice to him, and an opportunity given to show cause why the same should not be canceled. This course would have brought out the facts and established the rights of the respective parties to the land. ” * * * “ Tour decision is set aside, and you will order a hearing as indicated, and upon a report of the register and receiver, you will readjudicate the case.” We do not care to reiterate what was said in Caldwell v. Bush, supra, with reference to the authority of the land department and the jurisdiction of the courts in reference to the public lands. The whole matter was there discussed and the authorities reviewed. The view we take of this case is in conformity with the doctrines there announced.
If the land department has been only premature in its cancellation of the entry, and cause exists therefor, it can be shown upon hearing to be properly called for the purpose of determining that question, and it would seem by reference to the decisions of the department of the interior,
Affirmed.
