3 Wash. 338 | Wash. | 1891
The opinion of the court was delivered by
We will first notice the contention of the appellant, that the land in controversy, from June 26, 1863, to December 20, 1871, was segregated from the public domain, and was not subject to be selected for university purposes during that time. This contention is founded on the fact that said land was embraced in the homestead entry of one Lemuel J. Holgate, made and duly entered in the proper land office on June 26,1863, and
‘‘ I saw the relinquishment before I filed the selection in the land office or sold to Ross.”
“Q. Do you know what became of the relinquishment? A. I filed it, or had it filed, in the land office at Olympia.”
This testimony is substantiated by the petition for a new trial, wherein it appears that a paper purporting to be the receiver’s duplicate receipt issued to Lemuel J. Holgate for the land in controversy, was filed in the general land office, and that said paper was indorsed as follows:
“ Seattle, King County, February 16th, 1864.
“I hereby relinquish all my right and title to the within described land in favor of John Ross.
“ (Signed) Lemuel J. Holgate.”
It is claimed, however, that this was not a relinquishment as required by law, but is in effect a quitclaim from Holgate to Ross; and that in fact there was no provision for a voluntary relinquishment prior to May 14,1880, but that the only way by which lands once filed on under the homestead, pre-emption or timber culture acts, could be restored to the public domain was either by lapse of time or by contest. This position, we think, is not in accord with either the spirit or letter of the law, or the custom or usage of the land department. Section 1 of the act of May 14, 1880 (21 U. S. St. at Large, 140), is as follows :
“Beit enacted, eta., eta., That when a pre-emption, homestead or timber culture claimant shall file a written relinquishment of his claim in the local land office, the land covered by such claim shall be held as open to settlement and entry without further action on the part of the commissioner of the general land office.”
“ Sec. 2297. If, at any time after the filing of the affidavit, as required in section twenty-two hundred and ninety, and before the expiration of the five years mentioned in section twenty-two hundred and ninety-one, it is proved, after due notice to the settler, to the satisfaction of the register of the land office, that the person having filed such affidavit has actually changed his residence, or abandoned the land for more than six months at any time, then, and in that event, the land so entered shall revert to the government.”
This section, it is true, provides for a contest, and the proper officers of the land department, by virtue of their supervisory powers, prescribed rules and regulations governing this contest; but this section is not exclusive, and wall only be invoked when necessary. If the homestead applicant has abandoned his claim and has gone, or if he has not complied with the law, and refuses or fails to relinquish, this section prescribes the remedy; but there can be no such thing as a contest with one who will not contest, but is willing to, and does, grant everything that is asked of him. It might as well be claimed that a settler could not waive notice because the words, “after due notice to the settler,” occur in the section, as to hold that he could not waive the proof required. The proof of abandonment is the essential thing required; and even the wording of the section, literally construed, would make the relinquishment sufficient proof in that kind of a proceeding; and the cases cited by appellant are not in any sense opposed to this view. While in some cases certain segregated remarks of the court might possibly lead to such a conclusion, yet in every instance, when the facts of the case are examined, it is found that the opinion was based on the theory that there had been no abandonment proved at all, either by voluntary relinquishment or by contest proceed
In the case of Kansas Pacific Ry. Co. v. Dunmeyer, 113 U. S. 629 (5 Sup. Ct. Rep. 566), it was decided that under the acts granting lands to aid in the construction of a lino of railroad from the Missouri river to the Pacific ocean, the claim of a homestead or preemption entry made at any time before the filing of the map in the general land office had attached, within the meaning of those statutes, and no land to which such right had attached came within the grant; and that the subsequent failure of the person making such claim to comply with the acts of congress concerning residence, cultivation and building on the land, or whose actual abandonment of the claim does not cause it to revert to the railroad company and become a part of the grant. The claim having attached at the time of filing the definite line of the road, it did not pass by the grant, but was, by its express terms, excluded, and the company had no interest, reversionary or otherwise, in it. Many questions entered into the consideration of that case that are not in the case at bar; and that case was mainly decided on the special restrictions in the granting law, such as for instance, “not sold, reserved or otherwise disposed of by the United States, and to which a preemption or homestead claim might not have attached at the time the line of said road is definitely filed;” and the further declaration that the grant “shall not defeat or impair any preemption, homestead, swamp land or other lawful claim.” But nothing in that decision touches this case. In speaking of the effect of the homestead application, the court said “it meant that by such a proceeding a right of homestead had fas
The deed from the university commissioners to Ross was executed March 10,1864; and whatever irregularities there were in that deed, if any, were cured by the act of congress of March 14, 1864 (13 U. S. St. at Large, p. 28). Said section reads as follows:
“ Whereas, It is declared in the fourth section of the act of congress approved July seventeenth,, eighteen hundred and fifty-four, amendatory of the act approved September twenty-seventh, eighteen hundred and fifty, creating the office of surveyor general of the public lands in Oregon, etc., that in lieu of the two townships of land granted to the Territory of Oregon, by the tenth section of the act of eighteen hundred and fifty, for universities, there shall be reserved to each of the territories of Washington and Oregon two townships of land of thirty-six sections each, to be selected in legal subdivisions, for university purposes, under the direction of the legislatures of said territories, respectively; and
“Whereas, It is represented that sales have been made by territorial authorities of lands selected in virtue of the*346 terms of said act of seventeenth July, eighteen hundred and fifty-four, authorizing selections to be ‘reserved/ merely, under the conviction that they had the power to dispose of the same as a fee simple grant;
“Therefore, be it enacted, * * * That in all cases of sales made to individuals by the territorial authorities prior to the passage of this act, in which it may be shown to the satisfaction of the secretary of the interior that such sales were bona fide, and of the class hereinbefore mentioned, and that the tracts so sold are selections in all other respects regular and proper, it shall and may be lawful for the said secretary to approve such selection as a grant in fee simple, and a transcript, certified under the seal of the general land office by the commissioner thereof, of such approval, shall vest the title in the territory, and in its bona fide vendees.”
It is stoutly urged by the appellant that no selection was made of the land in controversy in the manner specified by law; that plat No. 2 was not filed in the land office until March 5,1867, after the passage of the law by the territorial legislature, January 31, 1867, removing Daniel Bagley and others as university commissioners, and that consequently such filing and selection were without authority of law, and void. So far as the action of the territory is concerned, its legislative intent was pretty plainly expressed in an act entitled, “An act to confirm titles to university lands in Washington territory,” approved October 26,1875. Section 1 of said act provides:
“ That all deeds of conveyance for university lands in this territory, which have been executed since the passage of the act entitled, ‘An act to provide for the selection and location of the land reserved for university purposes, to appoint a board of commissioners, and to provide for the selection and location of a site for the territorial university/ passed on the eleventh day of January, one thousand eight hundred and sixty-one, in the name of Daniel Bagley, president of the board of university commissioners, instead of being executed in the name of the Territory of Wash*347 ington, shall be deemed, taken and held good and valid deeds in law; and shall have the force and effect to pass from the Territory of Washington to the purchaser or purchasers named in such deeds respectively, their heirs, executors, administrators and assigns, all the right, title and interest there vested, or which may thereafter be vested in the Territory of Washington in and to the lands described in said deeds, as though in each and all respects the deeds, in their form and manner of execution, had conformed to the requirements of law.”
Of course there is no disputing the contention of appellant that the territory had no authority to pass any act to convey title out of the United States; nor is it contended here that there was any such attempt on the part of the territory, but it was an attempt, so far as the interests of the territory were concerned, to cure all irregularities in the commissioner’s deeds, and to pass the titles to bona fide purchasers; and the United States had the same object in view in the curative act of March 14, 1864, and as both the United States and the territory saw fit to provide by statute for confirming the titles to these lands in bona fide purchasers years before any attempt was made by the appellant to obtain title to them, it certainly does not lie in his mouth to complain or object.
It is said that no action was taken, as shown by the record in the case at bar, in compliance with the requirements of the statutes granting university lands. The plaintiff, however, did introduce a certified copy of the approval of such selections by the secretary of the interior. The certificate of approval referring to the list embracing the land in question is as follows:
“Department oe the Interior,
General Land Oeeice,
April 20,1889.
“ It is hereby certified that the tracts described in the foregoing list are embraced in the original list on file in this office of lands selected in the Olympia (now Seattle)*348 land district, Washington Territory, by a duly authorized agent of said territory, under the provisions of the above cited acts of congress, approved July 17,1854, and March 14,1864.
“It is further certified that the said tracts have been examined and compared with the township plat and tract book of this office, and are found to be subject to selection, and free from conflicts; and satisfactory proof having been furnished this office of the bona fide sale of the land by the territorial authorities, and the selections being in every respect regular, proper and in accordance with the provisions of the above named act of congress of March 14,1864, it is therefore recommended that the list, embracing ninety-nine acres, be approved as a grant in fee simple of the land therein described to the said Territory of Washington, said approval being subject to any valid interfering rights which may have existed at the date of selection.
“S. M. Stockslager, Commissioner.
“Department oe the Interior, April 22, 1889.
“The foregoing list of university selections, embracing ninety-nine acres, is hereby approved as a grant in fee simple of the land therein described to the Territory of Washington, said approval being subject to any valid interfering rights which may have existed at the date of selection.
“ John W. Noble, Secretary.”
This finding was authorized by the act of March 14, 1864, which constituted the secretary of the interior a tribunal to judicially pass upon the very questions passed upon by the secretary of the interior in this case. The language of the act is, “in which it may be shown to the satisfaction of the secretary of the interior that such sales were bona fide,” etc., and when the requirements therein specified are shown to the satisfaction of the secretary of the interior, the title shall vest in the Territory and its bona fide vendees. The certificate shows that these requirements have been performed to the satisfaction of the
“We are of the opinion that, in this action at law, it would be a departure from sound principles, and contrary to well considered judgments in this court, and in others of high authority, to permit the validity of the patent to the state to be subjected to the test of the verdict of a jury on such oral testimony as might be brought before it.*350 It would be substituting the jury, or the court sitting as a jury, for the tribunal which congress had provided to determine the question, and would be making a patent of the United States a cheap and unstable reliance as a title for lands which it purported to convey.”
In Quinby v. Conlan, 104 U. S. 420, the court said:
“ 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.”
In Vance v. Burbank, 101 U. S. 514, it was decided that the decisions of the appropriate officers of the land office, who had been constituted a special tribunal to decide certain questions, were final to the same extent as those of judicial or quasi judicial tribunals were. See also United States v. Flint, 4 Sawy. 42; Warren v. Van Brunt, 19 Wall. 646; Shepley v. Cowan, 91 U. S. 330; Moore v. Robbins, 96 U. S. 530; Marquez v. Frisbie, 101 U. S. 473. Many of these cases were reviewed, and the doctrine reaffirmed, in Steel v. Smelting Co., 106 U. S. 447 (1 Sup. Ct. Rep. 389). It is true that in this case the approval of the list embracing this land was not made until April 22,1889, while appellant’s entry was made October 20,1888, but the approval relates back to the time of the selection. The allowance of appellant’s entry was a mere inadvertence on the part of the land officers and was corrected as soon as the true state of the record was discovered. By such inadvertence he could certainly obtain no vested rights as against the bona fide purchaser of the land. All these statutes have been construed by those whom the law specially appointed to construe and execute them, and it is a principle well recognized by the courts that the construction given to statutes by those charged with the duty of executing them should not be overruled without cogent reasons.
“The officers concerned are usually able men and masters of the subject. Not unfrequently they are draftsmen of the laws they are afterwards called upon to interpret.”
In Brown v. United States, 113 U. S. 568 (5 Sup. Ct. Rep. 648), it was announced that in case of ambiguity in a statute, contemporaneous and uniform executive construction is regarded as decisive. To the same effect is Edwards’ Lessee v. Darby, 12 Wheat. 210; United States v. State Bank of North Carolina, 6 Pet. 29; McSorley v. Hill, 2 Wash. 638 (27 Pac. Rep. 552).
So far as appellant’s claim to the right of trial by jury is concerned, it seems that this case was treated by him at the trial below as an equitable action, and that he interposed an equitable defense to the complaint, and that both parties voluntarily went to trial without a jury. Whether, in a case where this question was properly presented, this court would hold that a party waived his right of trial by jury by proceeding to the trial of the cause by the court, without demanding a jury, and without interposing any objection, we do not now decide nor indicate. But in this case the alleged error was not brought to the attention of the court in the motion for a new trial. And in any event it would he error without prejudice, for the testimony which was submitted by the plaintiff, and which was necessary to prove his claim, was undisputed by the appellant, excepting so far as its admissibility, its construction and its legal effect were concerned, which were purely legal questions, to be decided by the court. Other testimony, it is true, was admitted, but there was no disputed testimony, the admission of which was necessary to a rightful determination of the issues involved.
The points discussed above were mainly relied upon by appellant to reverse this judgment. However, we have
The judgment is, therefore, affirmed.
Anders, O. J., and Scott, Hoyt, and Stiles, JJ., concur.