61 F. 777 | 8th Cir. | 1894
after stating the facts as above, delivered the opinion of the court.
At the threshold of this case, we are confronted with the question whether the appellant stands in such privity with the United States as entitles him to maintain a suit to annul the certification of the land in dispute to the state of Nebraska, which act on the part of the secretary of the interior had the legal force and effect of a patent. Frasher v. O’Connor, 115 U. S. 102, 5 Sup. Ct. 1141. It will be observed from the foregoing statement that the alleged equitable title which the appellant seeks to enforce not only had its origin in a settlement made upon the land in controversy more than 15 years after it had been certified to the state in supposed compliance with the provisions of existing laws, but that such settlement was also made by the appellant with full knowledge, actual or constructive, that the state of Nebraska had issued a patent for the land more than 12 years previous to the attempted settlement, and that in the meantime the land had been several times conveyed to private parties. Moreover, the appellant’s application to enter the land as a homestead was rejected by the proper land office on the very day that his entry upon the land is said to have been made, because of the prior selection of the same by the state, and, on an appeal duly prosecuted to the commissioner of the general land
But is it a necessary or even a reasonable deduction from these premises that, after the government- has granted a. patent for a tract of land forming a part of the public domain, a third party may then make a settlement on the same land without the consent of those officers of the government, who are charged with the custody and control of the public lands and wii.li the administration of the land laws, and, having made a settlement under such circumstances, may then maintain a bill in Ms own name to annul the prior grant, AAdiich the government, for a long period of years, has shown no disposition to disturb? Wre think that this question should be anSAvered in the negative, both upon principle and authority. One who makes a homestead or pre-emption settlement under the cir
We think that the authorities fully support the foregoing views. In Cooper v. Roberts, 18 How. 173, the plaintiff claimed a tract of land under a patent issued by the state of Michigan, which was occupied by' the defendant as mineral land, under a lease executed by the secretary of war. It was held that the land had been lawfully appropriated by the state, as school land, at the date of its patent, under an act of congress granting to the state the sixteenth section in each township for the maintenance of public schools. Thereupon, the defefldant sought to impeach the patent on the ground thát it had been issued in violation of the laws of Michigan. But the court said, speaking through Mr. Justice Campbell, that the defendant did not claim in privity with the state of Michigan, and was not in a position to question the validity of its grant; that, as the state had not seen fit to complain of the patent, the defendant could not be heard to do so. In the case of Spencer v. Lopsley, 20 How. 264, 273, the same principle was reaffirmed and applied. In that case the plaintiff claimed under a title which had emanated from the states of Coahuila and Texas years before the defendant had made a settlement on the premises in dispute. The defendant attempted to impeach the grant on which the plaintiff relied because it had not been executed in conformity with the laws of the state or sovereigrity from which it had emanated; but the Court said, again speaking through Mr. Justice Campbell, that he was a mere volunteer, who had entered on the land after it was granted, and that he had no commission to challenge a grant which the state, for a quarter of a century, had not seen fit to disturb. The case of Beard v. Federy, 3 Wall. 478, also seems to us to have an important
Our conclusion is that the complainant’s bill was properly dismissed for the reasons herein stated, and, without deciding the other questions that are presented by the record, the decree of the circuit court will be affirmed.