Lawrey v. Hanna

115 P. 975 | Or. | 1911

Opinion by

Mr. Chief Justice Eakin.

It is practically conceded that equity will not interfere with proceedings before the officers of the General Land Office of the United States relating to the government land while, the matter remains in their hands for decision, and that their decision upon the facts is conclusive in the courts, except in cases of fraud or mistake; but, after the title has passed from the government to the individual, the question becomes one of private right, and the courts may determine whether the patentee shall be decreed to hold the title "in trust for another.

It is also conceded that where one has initiated a right to government land under the United States laws, and where, for the purpose of doing the required acts to secure his title, he is entitled to possession thereof, equity will protect that possession against a trespasser or one without legal title or equitable claim, or it will maintain the possession of one adjudged by the land department to be entitled thereto. In this case, however, the land department has canceled the entry of plaintiff, and adjudged that defendant is entitled to the possession of the land.

Plaintiff contends that, as no time is fixed by the act of March 3, 1885 (chapter 319, 23 Stat. 340), for the completion of the residence and cultivation, the commissioner is without authority to cancel his filing for failure to complete such residence and cultivation, relying upon the decision in the case of Charles O. Fanning, 20 Land Dec. Dep. Int. 297, in which Fanning offered proof that his residence is upon land adjacent to that in question, and that it was so steep and rocky that it was not susceptible to residence or cultivation, in which it is held that, without such proof of residence and cultivation, it was proper to refuse to issue patent, but error to cancel the entry, as he had an indefinite period in which to complete residence and cultivation. That was not a contested case, however, and in the subsequent case of Burroughs v. Carroll, 34 Land Dec. Dep. Int. 626, it is held that, when the claimant submits his proof, he fixes the period within which the residence and cultivation must be completed which before was indefinite. It is there said:

“When the claimant submits his proof, he elects to stand or fall thereon. By his own act he determines the time within which proof shall be submitted. He fixes the period which before was indefinite and determinable only by the grantor, and in the face of a contest will not be permitted, if the proof is insufficient or fraudulent, to cure his default. * * The submission of final proof is a declaration on the part of the claimant that all the requirements of law have been honestly and fully met. * * By such, act contest is invited, and, if by such means the fraudulent nature of the proof is disclosed, claimant has no equitable right remaining upon which to. base a request to submit new proof. If there were no adverse claims and the proof submitted was in some respect unsatisfactory, but untainted with fraud, as in the Fanning case, 20 Land Dec. Dep. Int. 297, further opportunity might be afforded claimant to submit other proof.”

1, 2. When a conveyance of land depends upon a condition to be performed by the vendee and no time of performance is named, the law will imply that it must be performed within a reasonable time. 2 Washburn, Real Property 11. And the land department has determined that the offer of final proof by a land claimant under the act of March 3, 1885, determines the time within which residence and cultivation must be completed and this we deem a reasonable construction of the act,, and in accordance with legal principles. These are questions clearly within the jurisdiction of the land department, and this record does not establish a case for the interposition of the state courts.

The decree will be reversed, and the suit dismissed.

Reversed : Suit Dismissed.

Mr. Justice Bean took no part in this decision.