94 F. 710 | U.S. Circuit Court for the District of Nebraska | 1899
In the bill demurred to it is averred that . on September 19, 1885, one George F. Weed made a cash pre-emption
“See. 2. Jn all cases where any person lias contested, paid the land office fees, and procured lite cancellation of any pre-emption, homestead, or timber culture entry, lie fhall be notified by the register of the land office of the district in which snch land is situated of such cancellation, and shall be allowed thirty days from the date of such notice to enter said lands: provided, that said register shall be entitled to a fee of one dollar for the giving' of such notice, to be paid by the contestant, and not to be reported.”
It is further averred in the bill that a hearing upon the contest made by complainant against the entry made by Weed was had before the register and receiver of the land office at Denver, who, on May 21, 1889, ordered a dismissal of the contest, on the ground that the allegation:; on which the same was based were not sustained by the evidence; that thereupon the contestant, being the complainant herein, appealed to the commissioner of the general land office at Washington, as he had the right to do, and upon the hearing of the appeal the commissioner sustained the same; that thereupon George F. Weed moved before the commissioner for a rehearing on the evidence, a,id the officials and inhabitants of the town of Yuma, which it was shown had been located on the premises, asked leave to intervene for the protection of their rights; that the commissioner ordered a rehearing of the matter before the register and receiver; that, before' this rehearing* was had, a new land district was created at Akron, Colo., the land in question being within the new district thus created; that the receiver and register of the new district ordered the rehearing to take place at Akron on the 16th day of September, 1890; that the contestant did not appear at tills time, but filed objections to (he jurisdiction of the local offices at Akron, averring that the receiver at Akron was an interested party, being the owner of a jiart of the town of Yuma, under title derived froni Weed, the pre-emption claimant; that the Officers of the land district of Akron overruled the objections to the jurisdiction, and, upon hearing the evidence adduced on behalf of Weed, found in his favor, and dismissed the contest; that thereupon complainant appealed to the general land office at Washington, and the commissioner affirmed the action of the local land office, from which ruling complainant further appealed to the secretary of the interior, John W. Noble, by whom the action of the local officers and of the commissioner was affirmed by a decision entered January 9,1893, and subsequently com
“Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that the pre-emption cash entry numbered 4,990, of George F. Weed, made at the district land office at Denver, Colorado, on the 19th day of September, 1885, for the southeast quarter of section twenty-two (22), township two (2) north, of range forty-eight (48) west, which tract embraces the town of Yuma, Colorado, the county seat of Yuma county, Colorado, be, and the same is hereby, confirmed, and that patent of the United States issue therefor to the said Weed.”
Complainant further avers that, while this bill was pending before the houses of congress, full information was furnished them of the exact status of the contest over the title to the land; that, when the bill was passed, the question of the title thereto was pending in the land department, which, under the constitution and laws of the United States, is solely charged with the duty of determining the rights of pre-emption and contestants, and that congress had no right or power to adjudicate on the question of the title to the premises in dispute, and, furthermore, that, under the provisions of section 2 of the act of congress of May 14, 1880, hereinbefore cited, complainant had a vested right to enter the land upon the determination of the contest then pending between himself and Weed, and that, if complainant had been permitted to carry through the contest to a final determination, he would have succeeded in procuring a cancellation of the Weed entry, and that the passage of the act of congress above cited and the issuance of the patents thereunder deprived complainant of a vested right without due process of law. It is also averred in the bill that in the year 1886 the town of Yuma was located .on part of the premises, and a large number of lots have been sold to various parties named as defendants to the bill, it being charged that these parties had full knowledge of the facts when they bought under the titles based on the Weed entry. The, prayer of the bill, in substance, is that the several defendants be decreed to hold the title to the property in trust for the use and benefit of complainant, and that it be decreed that the patent issued under the act of congress to George F. Weed conveyed no title in the premises, as against the rights of complainant. To this amended bill a demurrer is interposed on behalf of the principal defendants, thereby presenting the question whether the matters recited in the bill entitle the complainant to any relief in the premises. The bill admits that the legal title to the land has never vested in the complainant, and that, by virtue of the patents issued under the provisions of the act of congress adopted De-
The averments of the bill further show that, after John W. Noble had been succeeded in office by Secretary Smith, a petition for a review of the order made by Secretary Noble was filed in the office of the secretary of the interior, and was by him entertained and granted, and the case was sent back to the local land office for a further hearing on the facts. What effect upon the rights of the parties had this order granted by Secretary Smith, whereby it was sought to nullify and set aside the final judgment of the land department upon the question of the validity of the Weed entry, evidenced by the order of Secretary Noble confirming, on appeal, the action of the commissioner of the general land office, which in turn confirmed the decision and findings of the register and receiver? Is it open to each succeeding secretary of the interior to rehear cases decided by his predecessor in office? In Noble v. Railroad Co., 147 U. S. 165, 13 Sup. Ct. 271, it is said:
“A revocation of the approval of the secretary of the interior, however, by his successor in office, was an attempt to deprive the plaintiff of its property without due process of law, and was therefore void. As was said by Mr. Justice Grier, in U. S. v. Stone, 2 Wall. 525: ‘One officer of the land office is not competent to cancel or annul the act of his predecessor. That is a judicial act, and requires the judgment of a court.’ ”
It is clear from the averments of the bill that the complainant has never yet succeeded in obtaining an adjudication holding that the Weed entry is invalid; but, as already stated, it is shown that up to this time the adjudications of the land department have sustained the validity of the Weed entry. If it be held that it was open to Secretary Smith to annul the finding and decision of his predecessor in office, and to send the case back to the local land office for a rehearing upon the facts, yet, as the local officers have not taken further action,
“The courts may very properly correct the injustice done by the land officers in refusing to accord rights, however Inchoate, which are protected by laws still in existence, while they can only consider vested rights when those rights are sought, to bo enforced in opposition to the repeal or modification of the laws on which lhoy are founded. The argument is urged with much zeal that, because complainant did all that was in the power of any one to do towards perfecting his claims, he should not be held responsible for what could not he done. To this we reply, as we did in the case of Hector v. Ashley, G Wall. 142, that the rights of a claimant are to be measured by the acts of congress, and not by what he may or' may not be able to do, and, if a sound construction of these acts shows that he acquired no vested interest in the land then, as his rights are created by the statutes, they must be governed by their provisions, whether they be hard or lenient.”
The act of congress upon which complainant relies in this case conferred upon him the privilege of entering the land in dispute when, and only when, he should succeed in canceling the prior entry in favor of Weed. This he has not yet succeeded in doing. He entered the contest against Weed in October, 1880, but never obtained a cancellation of the entry; the decisions of the land department being adverse to him until in December, 1894, congress passed an act confirming the Weed entry, and thus made it impossible for the land dollar tin ent to further entertain the contest over the validity of the Weed entry, That entry therefore remains uncanceled, and therefore a right to enter the land has never become vested in tbe complainant. He has never made an entry upon the land, nor has he perfected a right to make an entry thereof by securing a cancellation of the Weed entry, and therefore he has no vested right or interest