121 F. 1 | 6th Cir. | 1903
after stating the foregoing facts, delivered the opinion of the court.
It seems to us clear that the appellant was not entitled to the relief sought, and that therefore the decision of the lower court was right. Counsel for appellee contend that section' 3 of the act of March 2, 1889 (25 Stat. 1008), confirms pre-emption or homestead claims of the • character therein described, in so far as they conflict with the claims of cash purchasers and those claiming under state selections, and no further, and that, inasmuch as it did not appear by allegation or proof that there was any claim to the laird involved herein by a cash purchaser or under a state selection, appellant’s claim was not within said section 3, or confirmed by it. In support of the first part of their contention, they cite the following extract from the opinion of Mr. Justice Brewer in the case of Lake Superior Ship R. & I. Canal Co. v. Cunningham, 155 U. S. 354, 15 Sup. Ct. 103, 39 L. Ed. 183, in which there was a contest between said canal company, claiming under a state selection, and a homestead claimant, in regard to a quarter section of land forfeited by said act of March 2, 1889, to wit:
*6 “Congress knew that these lands, the title of which It was purposed to resume, discharged of all right on the part of the state of Michigan to use them in aid of the construction’ of a railroad, were already subject to other and conflicting claims, of no legal validity, yet of a character justifying consideration. Under those circumstances, with the view of securing an equitable adjustment of these conflicting claims, it enacted the second and third sections of this act.”
They cite also this further extract therefrom, in which he considers the closing sentence of said section, to wit:
“Evidently the intent of Congress was that, in all cases of a conflict between a selection in aid of the canal grant and the claim of any settler, the confirmation should depend upon the state of things existing at a named date, to wit, May 1, 1888; that date being about ten months prior to the passage of tile act. If at that time there were no bona fide pre-emption or homestead claims upon any particular tract, the title of the canal company was confirmed. If, on the other hand, there was then a bona fide pre-emption or homestead claim, arising or asserted by actual occupation of the land under color of the laws of the United States, such pre-emption or . homestead claim was to have preference, and was confirmed. It was the purpose not to leave open to dispute between the parties any question as to the relative equities of their claims, but to fix a precise time, and to describe with particularity the conditions which must exist at that time in order to give the one priority over the other.”
It is undoubtedly true that the main, if not only, object and purpose of section 3, was the fixing of priority between such conflicting claims. Indeed, it appears from the debates in Congress, and the section itself shows the motive for said section was the confirmation of the claims of cash purchasers and those claiming under the state selections; but as it was conceded upon all hands that the pre-emption and homestead claims of the character therein described were more meritorious than said other claims, even though conning into existence later, it was provided that there should be no confirmation .of said other claims as against said pre-emption and homestead claims. And if the last clause of the section, to wit, “and all such pre-emption and homestead claims are hereby confirmed,” which seems to have been added to the section as. originally drawn, had not been so added, there would have been nothing in the section expressly confirming said pre-emption and homestead claims as against the United States. But the effect of said clause was so to confirm them. Mr. Justice Brewer, in said case, in referring further to said closing sentence, said:
“The claim of any settler coming witbin the scope of this clause was declared by it prior to the- claim of the canal company, and was also, as against the United States, confirmed.”
It is to be considered, therefore, whether Congress did not intend by said last clause to confirm all pre-emption and homestead claims of the character described in said closing sentence, where there were no such conflicting claims, as well as where there were. It may be urged that if pre-emption and homestead claims of that character were deemed to be so meritorious that they were confirmed all around, even where they came into existence subsequent to such conflicting-claims, no reason can be assigned why Congress would not desire to confirm them as against the United States alone, where there was
But we do not find it necessary to dispose of this question herein. Conceding that pre-emption and homestead claims' of the character therein described are confirmed by said section in all cases, appellant was not entitled to the relief he sought. That section does not confirm all pre-emption and homestead claims, but only pre-emption and homestead claims of a certain character. They must be “bona fide,” and “arising or asserted by actual occupation of the land under color of the laws of the United State.s.” Mr. Justice Brewer, in the case already referred to, directed attention to both these characterisics. Concerning the latter, he said:
“While the term ‘homestead claim’ is sometimes used to denote the more formal application at the local land office, obviously this is not the purport of the term as used in this section, for it is defined by the succeeding words, ‘arising or asserted by actual occupation of the land.’ This obviously includes cases in which the party is on the 1st of May, 1888, in the actual occupation of the .land, with a view of making a homestead on it under the laws of the United States.”
Concerning the former, he said:
“If a party entering upon a tract, although he knew that it was within the limits of an old railroad grant, did so under the honest belief and expectation that that grant, if not technically extinguished by lapse of time, had remained so long unappropriated by any beneficiary that Congress would shortly resume it, and in that belief determined to make for himself a home thereon, with a view of perfecting his title under the land laws of the United States when the forfeiture should be finally declared, it must be held, we think, that he is, within the terms of the confirmatory act, a bona fide claimant of a homestead.”
No doubt, appellant came within this required characteristic, but he did not come within the other. His claim did not arise, nor was it asserted, by actual occupation of the land. He did not become an actual occupant of the land prior to March 13, 1889. In 21 A. & E. Enc. of Eaw (2d Ed.) p. 768, it is said that:
“Occupancy may consist of cultivation and use, without actual residence, or may be by tenant. The term, however, as used in some relations, may import actual residence.”
We think the words “actual occupation,” as here used, mean residence. In this sense of the word, it is clear that appellant was not an actual occupant of the land involved herein before March 13, 1899. He was on it prior thereto three times in the year 1888 — the latter part of January, the early part of April, and in July. At the first time he was there about two days, and built a foundation and cut some logs for a house; the next time he was there eight or ten days, and partially completed the house; and the last time he spent
Besides this, it was a question of fact whether or not he was an actual occupant of the land on May 1, 1888, and in the contest between him and Jesse Ford and Mollie O’Connor, before the Land Department, as to who had the prior claim to the land, it had jurisdiction, in disposing of that contest, to determine this question of fact. This it did adversely to appellant’s contention, and its determination thereof is final. In the recent case of American School of Magnetic Healing v. McAnnulty (decided by the Supreme Court of the United States on November 17, 1902) 23 Sup. Ct. 33, 47 L. Ed. —, Mr. Justice Peckham said:
“The Land Department of the United States is administrative in its character, and it has been frequently held by this court that, in the administration of the public land system of the United States, questions of fact are for the consideration and judgment of the Land Department, and its judgment thereon is final. Burfenning v. Chicago, St. P., M. & O. R. Co., 163 U. S. 321 [16 Sup. Ct. 1018, 41 L. Ed. 175]; Johnson v. Drew, 171 U. S. 93, 99 [18 Sup. Ct. 800, 43 L. Ed. 88]; Gardner v. Bonestell, 180 U. S. 362 [21 Sup. Ct. 399, 45 L. Ed. 574].”
It will be seen, therefore, that the effect of this decision was to finally dispose of all claim on appellant’s part under said act of March 2, 1889, and that he could not thereafter successfully maintain same either before the Land Department or in the courts. And even if it did not have that effect, and he thereafter had the right to assert his said claim and to have its validity passed on in either forum, there is room, at least, for maintaining that by his conduct subsequent to the rendition of that decision he abandoned same, and. by reason thereof lost any rights he may theretofore have had by reason thereof. He acquiesced in said decision, and on October 24, 1895, filed an original application under the homestead laws to enter the three-fourths of the land covered by the soldiers’ additional entry made by Cornelius on July 6, 1895. This he did upon the basis of the claim that Cornelius’ right to make same had been exhausted by a prior entry, and that portion of said land was therefore public land, and subject to homestead entry. He filed no such application to the one-fourth thereof covered by Berry’s entry, no doubt because said entry was considered to be valid, and patent was permitted to issue to him on the 15th day of April, 1896, without objection on his part. After this application was finally rejected, and the case was closed, on May 3,1897, he made the attack upon the entry of Cornelius on the grounds hereinbefore stated, with the view, no doubt, of throwing the land covered by it open to entry again. It was not until a year after this attack was disposed of adversely to his contention, and after appellee had in good faith acquired the note and mortgage in question herein for value, and without other notice of appellant’s
“The contention of plaintiffs in error is that the proviso to the act of Congress of March 2, 1889, confirming the rights of homestead claimants, as construed by the Supreme Court of the United States in Iron Co. v. Cunningham, 155 U. S. 354, 15 Sup. Ct. 103, 39 L. Ed. 183, had the effect to change the inchoate homestead claim recognized by the act into an absolute title, so that thereafter homestead claimants in the situation of Cunningham stood clothed with full title, without the necessity of the payment of any sum to the United States, or otherwise complying with such regulations and conditions as would have been required by law in the absence of the confirmatory grant contained in this act of Congress. * * * In this view w¡e are unable to concur. Such a construction of the act would not be just to the United States, and it was certainly more than justice to a homestead claimant in Cunningham’s situation required. It was the intention of Congress to recognize such equitable considerations as existed in favor of those who had undertaken in good faith to acquire a homestead, and to comply with the general law and regulations of the land office in relation to such a claim, and to enable them to go forward in the ordinary way and perfect their right by compliance with the law.”
The conclusion is therefore irresistible that appellant has no equitable right to the land by virtue of the confirmatory provision of the act of March 2, 1889. (He did not come within that provision, as the facts proven herein show, and the decision of the Dand Department held. And if he did, there is room at least for holding that he abandoned his claim thereunder.
But appellant does not rest his claim to said land alone upon said confirmatory provision. He urges here, and there is ground for believing that he so urged in the lower court at the hearing therein, that he has an equitable right to the land, as against the legal title and appellee’s mortgage claim, by virtue of section 3 of the act of May 14, 1880, 21 Stat. 141 [U. S. Comp. St. 1901, p. 1393], which is in these words:
“That any settler, who has settled or who shall hereafter settle, on any public lands of the United States, whether surveyed or unsurveyed, with the intention of claiming same under the homestead laws, shall be allowed the same time to file his homestead application and perfect his original entry in the United States land office, as is now allowed to settlers under the preemption laws to put their claims on record, and his rights shall relate back to the date of settlement, the same as if he settled under the pre-emption laws.”
He claims that though what he did prior to Ford’s entry on March 6, 1889, was not an actual occupation of the land, within the act of March 2, 1889, it was a settlement, within the meaning of said section of the act of March 14, 1880, and of the public land laws of the United States, and therefore his claim and application to enter
To this it may be answered that at no time was such a contention set up in the long litigation pending in the Land Department. The contention at first was that appellant was entitled «to the land under the confirmatory provision of the act of March 2, 1889, and afterwards under the homestead laws, because of his original application and the invalidity of Cornelius’ entry. Besides, no such contention is set up in the bill in this suit. Appellant’s case herein is founded upon no such theory. It is based solely upon said confirmatory provision of the act of March 2, 1889, and he ought not, therefore, to be allowed to recover on any other theory. But the contention is without merit otherwise. Assuming that what appellant did on the land in 1888 amounted to a settlement if same had been open to settlement, at that time it was not so open. It was not public land. The title thereto was in the state of Michigan. After March 2, 1889, when same was restored to the public domain, and before Ford’s entry of March 6th, he did nothing on the land which amounted to a settlement. Likewise, assuming that what appellant did on the land after March 13, 1889, amounted to a settlement if same were open to a settlement, it was not so open, because of Ford’s prior entry. At the time of Ford’s relinquishment, appellant was not then residing on the land, having given up his residence thereon several years prior thereto; and he did nothing in the way of a settlement after said relinquishment, and before the entry of Berry & Cornelius. The settler upon whom section 3 of the act of May 14, 1880, confers any rights, is a settler “on any of the public land of the United States,” and at no time whilst the land in question was public land of the United States did appellant settle thereon, or perform any act amounting to a settlement. That it is only in such cases that said section applies was recognized by the Supreme Court in the recent case of Nelson v. The Northern Pac. Ry. Co. (decided Jan. 26, 1903) 23 Sup. Ct. 302, 47 L. Ed. —; a case in which said section was applied. Mr. Justice Piarían, in delivering the opinion of the court, said:
“The third section of this statute is a distinct confirmation of the rights of a qualified person who had theretofore settled or should thereafter settle on any of the public lands of the United States, whether surveyed or unsurveyed, with the intention of claiming the same under the homestead laws, though, of course, no lands could be deemed of that character which had prior to such settlement become vested in a railroad company in virtue of an accepted map of definite location.”
And again he said:
“Nelson’s occupancy occurred after the passage of the act of 1880. While that act did not apply to a railroad company which had acquired the legal title by a definite location of its road, it distinctly recognized the rights prior to such time to settle upon the public lands, whether surveyed or unsurveyed.*11 with the intention of claiming same tinder the homestead laws. In occupying the land here in dispute, Nelson did not infringe upon any vested right ■of the railroad company; for there had not been at the date of such occupancy, in 1881, any definite location of the line of the railroad, and the land so occupied, with other lands embraced by the map of general route, ■constituted only a ‘float’; the company having, at most, only an inchoate interest in them — a right to acquire them if at the time of definite location if was not occupied by homestead settlers, ‘nor incumbered with other claims or rights.’ ”
The judgment appealed from is affirmed.
DAY, Circuit Judge, participated in the decision ot this case.