4 Dakota 336 | Supreme Court Of The Territory Of Dakota | 1887
This is an action brought by the plaintiff, Forbes, to recover possession of a quarter section of government land under our statute to “determine conflicting clams to real property.” The particular allegations of the complaint on which the action was tried are as follows: “That during all the time from the first day of May, 1879, up to and until and at. the time of the wrongful entry thereon by the defendant, as hereinafter alleged, the plaintiff was in the lawful, actual, quiet, peaceful possession, and entitled thereto, of the following described premises, situated in Lawrence county, Dakota terri
No objection was made to the complaint, by demurrer or otherwise, but the defendants appeared, and answered thereto,— the defendant Foley, by general denial, and the defendant Driscoll by general denial, and by allegations of new matter as a defense. The principal allegations of defendant Driscoll’s answer, after the general denial, are as follows: (2) That the defendant, George W. Forbes, has at no time made a settlement in person upon the land described in the complaint; that he has at no time inhabited or improved the said land, or made his home there, or resided thereon; that the said plaintiff has not any time erected a dwelling thereon, or purchased or owned one thereon; that, on the contrary, the said plaintiff has resided in the city of Deadwood, Lawrence county, Dakota, continuously, since the month of January, 1879, and long prior thereto, and has carried on business continuously there since that time, a.nd that his family have resided with him at his home in the city of Deadwood, continuously, since the month of December, 1879; that the said George W. Forbes has wholly abandoned the said land long prior to the settlement and improvements thereon by the defendant under the pre-emption laws; and that the said land was wholly forfeited to the government of the United States .long prior to the settlement and improvements of the defendant thereon. (3) That on the sixth
Upon the issues thus formed the. parties proceeded to trial to a jury, and the plaintiff, without any objection on the part of the defendants, was permitted to offer and put in proof a large amount of evidence tending to prove that he made settlement upon the land in controversy some time in- April, 1879, and filed his declaratory statement therefor, under the preemption law, on May 20, 1879; that he built a frame shanty addition to the log building then already on the premises; that he enclosed by fence a portion of the premises, including the log building and shanty, such inclosure being variously estimated at from two to ten acres, and breaking within such inclosure a few acres of land; that he also built some calf pens and yards for branding cattle within such inclosure; that some of his employes occupied the house and inclosure during a por
The defendant Foley seems to have made no separate defense, nor to have made any claim to the premises, at the trial. The defendant Driscoll offered in proof a large amount of evidence tending to prove that the plaintiff never made any settlement upon the premises; that he was a ranchman and a stock-raiser, and squatted upon the premises for the summer range only, and with no intention to enter the land; that his home was in Deadwood, where he was engaged in business, and that he owned a large ranch on the Cheyenne river, to which he removed his stock in the early fall of 1879; that he was not a bona fide claimant of the land, and that, whatever settlement he may have made in the spring of 1879, he had wholly abandoned the same; that defendant Driscoll was a bona fide preemptor, in good faith, of the premises, and that he made settlement thereon in January, 1880, built a good and substantial dwelling, and moved his family into the same; that he did not in any manner interfere with the possessions, inclosure, or improvements of the plaintiff, and that the land upon which he built his house, and that portion 'of the premises occupied by him, w-ere at that time vacant, unimproved government land; that
The testimony in rebuttal went only to new facts offered in evidence by the defendant, tending to prove that the plaintiff was not a tona fide resident upon the land, and excusing the* absence of the plaintiff’s family. There was no proof tending to rebut the honajides of defendant Driscoll’s settlement upon the land, or that the residence, settlement, and improvements of Driscoll were wholly outside of the inclosure and improvements of Forbes; and no testimony whatever that the defendant Driscoll was at the time of the bringing of this action interfering, or at any time ever had in any manner interfered with the possession or improvements of Forbes, except the testimony as to renailing on the boards which Forbes had knocked off the fence. It does not appear from the testimony who built this fence, whether Forbes or Driscoll, or whether it was there when they entered upon the premises. It only appears that both claimed the particular fence, without disclosing any facts as to the foundation of such claim.
Upon this state of facts, and these pleadings, various instructions were asked on the part of Driscoll, generally relating to pre-emption rights, abandonment, etc., all of which were refused by the court, and exceptions duly saved by the defendant. And the court, of its own motion, fully charged the jury upon the rights of the respective parties under the pre-emption
From this statement of this case it will be observed that the action was tried an d determined ‘ ‘as a pre-emption contest” at law; and, while the complaint upon which the action was tried was silent as to the facts upon-which the plaintiff based his right of possession, the answer seems to have come in and supplied this omission, and the parties, by mutual consent, seem to have entered upon a ‘ ‘contest” to maintain their rights in the same manner, and by the same class of testimony, they would have adduced before the local land office in their assertion of their pre-emption rights to the land; and the learned judge who presided at the trial seems to have held them to their own theory of the case, up to its final determination; and, in granting the order amending the complaint so as to conform it to the facts proved, he facetiously remarks: “It appearing to the court from the minutes of the court and the stenographer’s, at the trial and the instructions of the court to the jury, that the trial of this case was had upon the theory that the complaint contained all the material allegations in the proposed amended complaint, without objection on the part of the defendants, it is ordered,” etc.
This question is therefore now presented to this court, (the defendant, by his motion to set aside the verdict on the ground of insufficiency of the testimony and otherwise, having prop
The plaintiff relies upon Section 650 of our Code of Civil Procedure as giving him the right to maintain this possessory action prior to issuance of the patent. That section reads as follows: ‘ ‘Any person settling upon the public lands belonging to the United States, on which settlement is not expressly prohibited by congress or some department of the general government, may maintain an action for any injuries done the same, also an action to recover the possession thereof, in the same manner as if he possessed a fee-simple title to said lands.’’ Section 650, Code Civil Proc.
If any doubt before existed that, under Chapter 29 of the Code of Civil Procedure, a person entitled to the possession of real property could maintain an action to recover it, though his title were less than a fee-title, this section would seem to remove that doubt, at least so far as claimants upon the public lands are concerned; but the section nowhere, in express or fairly implied terms, seeks to give claimants the right to try their contests in the courts of law. It was not the evident intent of the legislature to attempt to take away that right from the tribunal charged under the law of congress with the power to hear and 1 ‘determine all questions as to the right of preemption, arising between different settlers on the public lands.” Rev. St. U. S. 1851. It was enacted, without doubt, to set at rest any question that might arise as to the right of the settler upon public lands to protect his improvements and possessions against a mere intruder or trespasser. The pre-emption law dates back early in the history of the land department. The necessity and wisdom of its enactments is well put by Mr. Justice Miller in Atherton v. Fowler. “In the earliest stages of our land system no right or interest could be secured by the individual in any public land until it had been surveyed into legal sub-divisions; nor, after this had been done, was it subject to sale until, by the proclamation of the president, it was brought into
The pre-emption law never sought to sever or segregate the pre-emption claim from the public domain. It remained a part of the public domain until the pre-emptór entered the land by “proving up” and paying Iherefor at the local office. The declaratory statement made by the pre-emptor was only a notice of intention to claim the land so settled upon, and it conferred no rights upon the settler outside of the lands actually settled upon and occupied by him as against other settlers nor even as to his actual oeeupalion as against the government. Frisbie v. Whitney, 9 Wall. 187; Yosemite Valley Case, 15 Wall. 77.
As to all portions of the premises named in the declaratory statement not actually occupied, they were still public lands, open to the occupation of any honest settler who desired, in good faith, to contest the pre-emption rights of a prior settler. Section 2273, which provides for the settling of contests between different settlers by the local land officers, also provides that, “when two or more persons settle upon the same tract of land, the right of pre-emption shall be in him who made the first settlement, ” clearly contemplates the right of more than one pre-emptor to settle upon and claim the same
Atherton v. Fowler, supra, contains nothing contrary to this rule; but the doctrine of that case, on the contrary, is in accord with the rulings of the department and the former decisions of the courts. The case is one of the many growing out of the famous “Soscol Ranch” matter. In that case a trespasser, seeking to justify under his pre-emption rights, had entered forcibly upon the prior, peaceable, actual possession of the other, by breaking through his enclosure, and forcibly ousting him of his possession, and driving him out by threats .and violence. The court says: “The defendants in this case, though taking no part in the night invasion mentioned in that case, (Frisbie v. Whitney,) did, during the spring and summer of 1862 and 1863, enter upon the land in the possession of Page, — land which in every instance was inclosed within fences, and which was under actual cultivation; and this entry was without the consent, or having in any way the permission, of those in possession, but by forcibly driving them out.” 96 U. S. 514. Again says the court: “Does the policy of the preemption law authorize a stranger to thrust these men out of their houses, seize their improvements, and settle exactly where they were settled, and by these acts acquire the initiatory right of pre-emption? The generosity by which congress gave the set-
But if there were any doubt as to tho doctrine announced in Atherton v. Fowler, supra, the supreme court itself has announced what was meant by the language there used. ■ In Belk v. Meagher, Chief Justice Waite, speaking for the court, says: “There is nothing in Atherton v. Fowler, 96 U. S. 513, to the contrary of this. In that case it was held a right of pre-emp
If, then, the settlement of the defendant Driscoll was upon unoccupied portions of the land in controversy, the plaintiff would not have the right, by virtue of his' prior filing, to oust him from such possession; nor would he have the right, as a prior pre-emptor, to oust this defendant from any portion of the land filed upon, except such as he (the plaintiff) had actually settled upon or improved; and as the -evidence does not show the defendant Driscoll to have been in the possession of any part of the premises which had been in the prior, actual possession of the plaintiff, the verdict should have been set aside.
But there is another view which should not be overlooked by the court in determining this case. The court below, by the apparent solicitation of the opposing counsel, entered into an investigation, and finally determined the pre-emption right of the plaintiff, Forbes, to the claim in controversy, as against the contestant, in determining the right of possession. It was the only issue raised by the pleadings, it was the only issue made by the evidence, and it was the issue determined by the verdict of the jury. The plaintiff did not seek to oust a trespasser from his house, his inclosure, ana his premises. He sought to eject a junior pre-emptor from the entire claim, be
The power to sell and dispose of the public lands is essentially of an administrative or executive character. Congress, under its constitutional power ‘ ‘to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States,” (Const. U. S.) has placed this executive function in the hands of a special tribunal subject to the supervision of one of the excutive officers of the department. The general land office was created at a very early day in the history of the government, and the public domain was subdivided into land districts; and local land offices established at about the same time; and while the general and local land offices have been made, at different times, adjuncts of the treasury and other departments of the government, and made subject, also, at different times, to the supervision of the heads of these departments, and of the president himself, yet the general character of the tribunal has been the same. In 1841 the first full and complete pre-emption law was enacted. Pre-emption laws had been enacted prior thereto, for limited periods, and were the subject of frequent change and amendments; but the act of 1841 so much enlarged the rights of pre-emption that it is referred to as “the pre-emption act.” Under this law, as first enacted, as questions as to the rights of pre-emption between different settlers were required to be settled by the register and receiver, subject to an appeal to the secretary of the treasury. But the act of 1858 changed this section of 1841, and made it substantially as now embodied in Rev. St. U, S. § 2273 providing, that “all questions as to the right of pre-empfiion arising between different settlers shall be determined by the register and receiver of the district within which the land is situated; and appeals from the decision of the district officers, in cases of contest for the right of pre-emption, shall be made to the commissioner of the general land office, whose decision shall be
Here, under the act of 1858, was created a special tribunal to determine the right of pre-emption between contesting settlers on the public lands; and the act gives the register and receiver power, in the first instance, to determine that right, and, in case of appeal, makes the commissioner’s decision final, unless appeal be taken to the secretary of the interior. Could language be plainer, or the intention of congress be more clearly expressed? This tribunal created by congress is given expressly the judicial powers to hear and finally determine all rights of pre-emption between contesting settlers on the public lands. We need not argue what might have been the powers of this tribunal, invested with the executive power of making sale of the public lands, to determine all questions of fact that might arise in the exercise of such power, under the well known rule that when an executive power is conferred, and no tribunal is designated for determining contested questions of fact arising in its exercise, the body or tribunal upon which the power is conferred is held to have such power; for congress has seen fit to confer upon the land department the express power to hear and determine all matters of pre-emption right between such settlers, and such power is necessarily exclusive. The granting the right of pre-emption to one settler determines all questions of fact upon which the granting of that right depended. Whenever a statute grants a right not before existing, and prescribes the method of obtaining or contesting that right, such method is exclusive. Dwar. St. 275 n. But we are not required to invoke this principle of law, for, whether or not this tribunal created by congress for the sale and disposition of the public lands be so far a part of the co-ordinate branch of the government as to be free from judicial control, it is very clear from the decisions of the federal courts that it is given such judgment and discretion and quasi judicial powers that its decisions are not open to review by the courts in a collateral attack, and its officers are free from control of the courts
Says Chief Justice Taney in Decatur v. Paulding: “The interference of the courts with the performance of the ordinary duties of the executive departments of the government would be productive of nothing but mischief, and we are quite satisfied that such a power was never intended to be given to them.” 14 Pet. 516. This language of Judge Taney is cited with approval of the court in Gaines v. Thompson, in which it was sought to restrain the action of the secretary of the interior in directing the cancellation of Gaines’ entry to certain public lands; and Judge Miller, in referring to the powers of the officers of the land department, says: “Certain powers and duties are confided.to these officers, and to them alone, and however the court may, in ascertaining the rights of parties in suits properly brought before them, pass upon the legality of their acts, after the matter has once passed from their control, there exists no power in the courts, by any of its processes, to act upon the officer so as to interfere with the exercise of that judgment while the matter is properly. before him for action. The reason for this is that the law resposes this discretion in him for that occasion, and not in the courts. The doctrine is therefore as applicable to the writ of injunction as it is to a writ of mandamus.” 7 Wall. 352.
This decision undoubtedly announces the correct rule, and the better reason why the courts refuse to interfere with the land department in the exercise of its conferred powers, though it is a familiar as it is a sound principle of law that, in acts strictly executive, and partaking of a political character, the executive department of the government is accountable only to conscience and the country; yet when the acts of an executive officer are not of such political character, but affect the.private interests of individuals, they may, in a proper case, be examined by the courts of chancery.
In Johnson v. Towsley, 13 Wall. 73, the powers of the department, and the powers of the courts to review the action of
It will be perceived that the court puts the jurisdiction of courts of equity upon the same ground as in case of its exercise over courts of law, or any other tribunal which has erred in its construction of the law governing it, or has been imposed upon by fraud or mistake; and, further on in the same opinion, the court announces the doctrine which has since governed and controlled the courts in the exercise of their jurisdiction over the land department: “This court has, at all times, been careful to guard itself against an invasion of the functions confided by law to other departments of the government; and, in reference to the proceeding before the officers entrusted with the charge of selling the public lands, it has frequently and firmly refused to interfere with them in the discharge of their duties, either by mandamus or injunction, so long as the title remained in the United States, and the matter was rightfully before its officers for decision. On the other hand it has constantly asserted the right of the proper courts to inquire, after the title had'passed from the government, and the question became one of private right, whether, according to the established rules of equity and the acts of congress concerning the public lands, the party holding that title should hold absolutely as bis own or as trustee for another; and we are satisfied that the relations 'thus established between the courts and the land department are not only founded on a just view of the duties and powers of
Here is distinctly announced wliat jurisdiction will be exercised by the courts, and when it will exercise such jurisdiction. This is the leading case on this subject; for while the same doctrine had been before expressed in various opinions, yet the whole subject is here again reviewed. The case was elaborately discussed by eminent counsel, nnd the court itself was so impressed with the importance of the subject that the learned judge, at the beginning of the opinion, takes occasion to say: ‘ ‘This proposition is not a new one in this court in this class of cases, but it is maintained that none of the cases heretofore decided extend, in principle, to the one before us; and the ques tion being pressed upon our attention with an earnestness and fullness of argument which it has not perhaps before received, and with reference to statutes not heretofore considered by the court, we deem the occasion an appropriate one to re-examine the whole subject.” 13 Wall. 81.
This opinion has since frequently been referred to, and the doctrine there announced has been affirmed by subsequent decisions of the court.
In Sheplev et al. v. Cowan et al. the court, in refusing to review the action of the land department, by Field, J., says: ‘‘There is no evidence of any fraud or imposition practiced upon them, or that they erred in the construction of any law applicable to the case. It is only contended that they erred in their deduction from the proofs presented; and-for errors of that kind, where parties interested had notice of the proceedings before the land department, and were permitted to contest the same, as in the present case, the courts can furnish no remedy. The officers of the land department are specially designated by law to receive, consider, and pass upon proofs presented with respect to settlement upon the public lands with a view to secure rights of pre-emption. If they err in the construction of the law applicable to any case, or if fraud is practiced upon them, or they themselves are chargable with fraudulent practices, their rulings may be reviewed and annulled by the courts, where a con
In Moore v. Robbins, on appeal to the supreme court of the United States, the secretary of the interior had entertained an appeal from the commissioner of the general land office, after the patent had issued, and had reversed the commisslone», and ordered a cancellation of the patent; and the supreme court of Illinois held the action of the secretary as final, and that the court could not exercise its chancery jurisdiction in such a case. Johnson v. Towsley, supra, had not then been decided by the supreme court of the United States. Miller, J., in affirming the doctrine announced in Johnson v. Towsley, supra, goes further and limits the time when control over the land by the department ceases to the act of issuing the patent. That while prior to the issuing of the patent the department has power to hear and determine all questions arising as to its issue, yet, so soon as the patent has issued, the jurisdiction of the department is at an end, and the power of the courts may be invoked, in a case coming within their jurisdiction. 96 U. S. 530.
In Marquez v. Frisbie, an equitable action was brought in the state court of California, setting forth certain errors alleged to have been committed by the land officers and the secretary of the interior, whereby an order had been entered by the secretary of the interior, permitting the defendant to enter the land and praying the court to decree that the title which the defendant might obtain should inure to the plaintiff, etc. Upon demurrer to such petition the court again goes over fully the powers of the land officers, and the power of review vested in the courts. After reciting the facts stated in the complaint, the court, by Mr. Justice Miller, says: “It plaintly appears from this— First, that defendants had not the legal title; second, that it was'in the United States; third, that the matter was still
Here is distinctly and succinctly announced by the supreme court the jurisdiction that will be exercised' by the courts over
The supreme court again reiterates the same doctrine in U. S. v. Schurz, in which a mandamus issued to compel the delivery of the patent, which had been signed and recorded, and everything by the land department done, except the final act of delivery. The court, holding the act of delivery to be a mere ministerial act, which the officer was bound to perform, says: “Congress has also enacted a system of laws by which rights to these lands may be acquired, and the title of the government conveyed to the citizen. This court has, with a strong hand, upheld the doctrine that, so long as the legal title to these lands remained in the United States, and the proceedings for
In Quinby v. Canlan there is a very interesting re- examination of the powers of the court to review the action of the land department, by Field, J., and the former doctrine, as announced in the decisions already quoted from, is not only adhered to and re-affirmed, but the court goes a step further, and says, not only was the determination of mere questions of fact by the department binding upon the courts, but also the determination of mixed questions of law and fact; and the court there says that not only must it appear that the department has been imposed upon by fraud, or that mistake has been committed, but this fact must clearly appear. ‘ ‘It would lead to endless litigation, and be fruitful of evil, if a supervisory power were vested in the courts over the action of the numerous officers of the land department, on mere questions of fact presented for their determination. It is only when those officers have misconstrued the law applicable to the case as established before the department, and thus have denied to parties’ rights which upon a correct construction, would have been conceded to them, or where misrepresentations and fraud have been practiced necessarily affecting their judgment, that the courts can, in a proper proceeding, interfere and refuse to give effect to their action?. On this subject we have repeatedly and with emphasis expressed our opinion, and the matter should be deemed settled. Johnson v. Towsley, 13 Wall. 72; Shepley v. Cowan, 91 U. S. 330; Moore v. Robbins, 96 U. S. 530. And we may also add, in this connection, that the misconstruction of the law by the officers of the department which will authorize the interference of the court must be clearly manifest, and not alleged upon possible finding of the facts from the evidence different from that reached by them.” 104 U. S. 426.
In Smelting Co. v. Kemp, 104 U. S. 647, the court again asserts the doctrine of former cases.
In Steele v. Smelting Co. the defendant sought to set up his equitable interest in the land as a legal defense against the paten
In Baldwin v. Stark, 107 U. S. 463, 2 Sup. Ct. Rep. 473, the court held that whether the court had once exercised his preemption right was so far a question of fact that it must be admitted to have been passed upon by the department, and that such finding is final.
In the late case of U. S. v. Minor, where the supreme court lays down the doctrine that the United States may maintain an action and cancel a patent procured by perjury and upon false affidavit, the proceeding being wholly ex parte, no contest having been had, the United States in no manner being represented before the department, and having had no knowledge of the fraud prior to the issuing of the patent, the court, distinguishing such a proceeding from a contest between different settlers upon the public land, and re-examining the former doctrine announced by that court says: “It has been often 'said by this court that the land officers are a special tribunal of a quasi ju
In Lee v. Johnson v e have the last utterance of the supreme court, so far as their decisions have been published, upon this question. In that case the secretary of the interior had reversed the action of the commissioner upon a question which it was claimed was not in issue upon the appeal, and that the secretary’s action, therefore, was original rather than appellate, and void, and the Michigan court upon that ground, had set aside his action as illegal; but the supreme court of the United States held that the matter was properly before the secretary for review, and reversed the supreme court of Michigan, and lays down the doctrine clearly that courts of law have no jurisdiction to review the decisions of the department; that such attempted review by a court of law would be collateral and void, and that courts of equity can take jurisdiction only when the right to do so is clear; and that fraud, so often referred to in the decisions, as giving jurisdiction to courts of equity, is fraud in the procurement, and not false and fraudulent testimony produced upon the hearing. Says the court: ‘ ‘It is only when fraud and imposition have prevented the unsuccessful party in a contest from fully presentir g his case, or the officers from fully considering it, that a court will look into the evidence.” 116 U. S. 49, 7 Súp. Ct. Rep. 249. And the court in such case never seeks to cancel or annul the action of the department. It never has, between contesting claimants, cancelled the patent issued, but treats the action of the government in issuing the patent as valid, and the title as passing thereby; but decrees that the title so passing shall inure to the benefit of the party entitled thereto, instead of the patentee, or in the language of the court: ‘ ‘The court, in such cases, merely
From these decisions of the supreme court it would seem to be settled that “courts of law” can in no case review the action of the land department after it has acted, by declaring, in effect, its acts illegal and voidable, and that courts of equitjr are powerless to act until the jurisdiction of the department has ceased by the issue of the patent, and that, when the jurisdiction of a court of equity is invoked, the error complained of must come clearly within one of the well-known grounds of equity jurisdiction. It follows that the plaintiff seeking to recover possession of the entire quarter section of land, upon the ground that he had the better pre-emption right, in a court of law, was a proceeding without authority, and that no judgment should be entered upon such verdict, and that a judgment so rendered would have no binding force upon the department, and would give no protection to the plaintiff, as against the future possession of the defendent Driscoll.
A contrary view of the law would bring the courts and land-offices into constant collision. A decision of the courts in advance would take from these officers the jurisdiction the law has given them to hear and determine “all rights of pre-emption arising between different settlers. ” It would bring into the courts for decision all claims and contests before the department, and the absurd result would be reached, as we are informed by briefs of counsel has in fact resulted in this case to-wit: That the'plaintiff, Forbes, has judgment in the district court of the territory, awarding him the possession of the entire quarter section, while the defendant Driscoll has the decision of the land department, entered since the- trial of this case, awarding him the patent, and consequent right to possession of the same premises.
We have no doubt that the manifest intent of the statutes of the United States, as is so clearly expressed by the decisions of the supreme court, was to vest in the land department an exclusive jurisdiction of all questions relating to the sale and
In the view the court has taken of this case, it is not deemed necessary to notice the alleged errors of the court in its charge to the jury upon the question of abandonment, or to pass upon the other errors assigned.
The judgment is reversed.