152 F. 662 | U.S. Circuit Court for the District of Western Arkansas | 1907
On November 4, 1848, William Goodall made cash entry for the S. E- ¾ N. W. ⅞, section 11, township 17 N., range 15 W. (situate in Marion county, Ark.), at the Batesville (now Harrison, Ark.) district land office. The practice of the office at that time, when a cash entry was made, was this: The receiver, when the money was paid for the land entered, issued duplicate receipts, describing therein the land entered, the price paid, and the quantity of the land. One of these receipts he gave to the purchaser and the other to the register. Predicated on this receipt the register made the necessary entries on the tract book an.d plats of his office, and issued the certificate of entry in favor of the purchaser for the land so entered. Monthly reports were made of his action to the General Hand Office, and, on presentation of the certificate of entry to the General Land Office, the patent was issued thereon if everything appeared regular. In this case the receiver’s receipt correctly described the land entered, shows the price paid, and the number of acres, and the land described in the receipt is the S. E. ⅞ N. W. ¾, section 11, township 17 N., range 15 W.; but the register’s certificate, issued the same day, incorrectly shows the land entered by Goodall to have been the S. E. )4 N. W. ⅞, section 11, township 16 N., range 15 W. The first
The effect of all this was to make it appear on the records of both the General Land Office and the local office at Harrison that the land in controversy at that time the S. E. 54 N. W. 54, section 11, township 17 N., range 15 W., was vacant land and subject to homestead entry. Indeed, some time in 1893 (letter not dated) complainant wrote the General Land Office inquiring the status of the land in controversy, and advising it that “the books of the Harrison land office show it to be vacant, which is disputed.” On September 30, 1893, the acting commissioner of the General Land Office replied, stating that the tract books showed the land vacant so far as returns had been received, but some entry might have been made at the local office. Some other correspondence ensued about the status of the land, and finally, on December 28, 1893, complainant entered the land in controversy,
The rules of law governing cases of this character, where the action of a department of the government having jurisdiction of the subject-matter and parties .is assailed for error and fraud, is so well stated in James v. Germania Iron Company, 107 Fed. 597, 46 C. C. A. 476, that I quote from the opinion of Judge Sanborn (Judges Caldwell and Thayer, both concurring) as follows:
“The land department of the United States is a quasi judicial tribunal, invested with authority to hear and determine claims to the public lands subject to its disposition, and its decisions of the issues presented at such hearings are impervious to collateral attack, and presumptively right. A patent to land of the disposition of which the department has jurisdiction is both the judgment of that tribunal and a conveyance of the legal title to the land. At March 3, 1849, c. 108, § 3, 9 Stat. 395; Rev. St. §§ 441, 453 [U. S. Comp. St. 1901, pp. 253, 257]; U. S. v. Winona & St. Paul R. Co., 67 Fed. 948, 955, 15 C. C. A. 96, 103, 32 U. S. App. 272, 283. But the judgment and conveyance of the department do not conclude the rights of the claimants to the land. They re§t on established principles of law and fixed rules of procedure, which condition their initiation and prosecution, the application of which to the facts of each case determines its right decision; and, if the officers of the land department are induced to issue a patent to the wrong party by an erroneous view of the law, or by a gross or fraudulent mistake of the facts, the rightful claimant is not remediless. He may avoid this decision, and charge the legal title derived from the patent which they issue with his equitable right to it on either of two grounds; (1) That upon the facts found, con*666 ceded, or established without dispute at the hearing before the department its officers fell into an error in the construction of the law applicable to the case which caused them to refuse to issue the patent to him, and to gire it to another (Bogan v. Mortgage Co., 63 Fed. 192, 195, 11 C. C. A. 128, 130, 27 U. S. App. 346, 350; U. S. v. Winona & St. P. R. Co., 67 Fed. 948, 958, 15 C. C. A. 96, 106, 32 U. S. App. 272, 288; U. S. v. Northern Pacific R. Co., 95 Fed. 864, 870, 37 C. C. A. 290, 296; Cunningham v. Ashley, 14 How. [U. S.] 377. 14 L. Ed. 462; Barnards’ Heirs v. Ashley’s Heirs, 18 How. [U. S.] 43, 15 L. Ed. 283; Garland v. Wynn, 20 How. [U. S.] 6, 15 L. Ed. 801; Lytle v. Arkansas, 22 How. [U. S.] 193, 16 L. Ed. 306; Lindsey v. Hawes, 2 Black [U. S.] 554, 562, 17 L. Ed. 265; Johnson v. Towsley, 13 Wall. [U. S.] 72, 85, 20 L. Ed. 485; Moore v. Robbins, 96 U. S. 530, 538, 24 L. Ed. 848; Bernier v. Bernier, 147 U. S. 242, 13 Sup. Ct. 244, 37 L. Ed. 152); or (2) that through fraud or gross mistake they fell into a misapprehension of the facts proved before them, which had the like effect (Gonzales v. French, 164 U. S. 338, 342, 17 Sup. Ct. 102, 41 L. Ed. 458). If he would attack the patent on the latter ground, and avoid the departments finding of facts, however, he must allege and prove not only that there was a mistake in the finding, but the evidence before the department from which the mistake resulted, the particular mistake that was made, the way in whidh it occurred, and the fraud, if any, which induced it, before any court can enter upon the consideration of any issue of fact determined by the officers of the department at the hearing. U. S. v. Northern Pacific R. Co., 95 Fed. 864, 870, 882, 37 C. C. A. 290, 296, 308; U. S. v. Atherton, 102 U. S. 372, 374, 26 L. Ed. 213; U. S. v. Budd, 144 U. S. 154, 167, 168, 12 Sup. Ct. 575, 36 L. Ed. 384; U. S. v. Mackintosh, 85 Fed. 333, 336, 29 C. C. A. 176, 179, 56 U. S. App. 483, 490; U. S. v. Throckmorton, 98 U. S. 61, 66, 68, 25 L. Ed. 93; Marquez v. Frisbie, 101 U. S. 473, 476, 25 L. Ed. 800; Steel v. Refining Co., 106 U. S. 447, 451, 1 Sup. Ct. 389, 27 L. Ed. 226; French v. Fyan, 93 U. S. 169, 172, 23 L. Ed. 812; Ehrbardt v. Hogaboom, 115 U. S. 67, 69, 5 Sup. Ct. 1157, 29 L. Ed. 346; Heath v. Wallace, 138 U. S. 573, 575, 11 Sup. Ct. 380, 34 L. Ed. 1063; Barden v. Railroad Co., 154 U. S. 228, 14 Sup. Ct. 1030, 32 L. Ed. 992.”
See, also, Gonzales v. French, 164 U. S. 338, 17 Sup. Ct. 102, 41 L. Ed. 458. Other cases along the same line may be cited but it is useless.
This bill assails the decision of the Secretary on both grounds stated, but it falls far short of a compliance with the rules of law there stated as to either. From the record it appears that, when the case was before the Interior Department, there was a mass of evidence, including records and ex parte affidavits introduced, and the effort made to show that the patent issued July 1, 1850, correctly described the land actually entered by Goodall, and therefore should not be canceled and a new patent issued for the land in controversy. So far as can be ascertained, such was the purpose when the original and amended bills were filed in this case. In the first amended bill the effort is made to show that the land really entered by Goodall is another 40 acres, north of the land in controversy, and in- the same section, township and range. The second amended bill of complaint sets out the affidavits used in evidence for the cancellation of the patent issued July 1, 1850, and for the issuance of a patent for the land in controversy, and alleges that those affidavits were false, but omits any reference to the records before the Interior Department. The fact is that the affidavits were of no importance. They were irrelevant, and a glance at the Secretary’s opinion discloses clearly that they were not considered, at least, not controlling. His decision was based on the record of the local and General Land Offices. Those records on which his opinion is predicated were not assailed by complainant. Indeed, he relied on them as they then appeared as show
“A party who has complied with all the terms and conditions which entitle Slim to a patent for a particular tract of public land acquires a vested interest therein, and is to be regarded as the equitable owner thereof. While his entry or location remains in full force and effect, his rights thereunder will not be defeated by the issue of a patent to another party for the same tract.”
In Chowning v. Stanfield, 49 Ark. 93, 4 S. W. 278, the court says:
“Few impositions are better settled than that the rights of one who has done all that the law requires of him cannot be impaired by the subsequent neglect or want of fidelity of a public officer. Lytle v. State of Arkansas, 9 How. (U. S.) 333, 13 L. Ed. 153; Coleman v. Hill, 44 Ark. 452; Stark v. Mather, 12 Am. Dec. 567, note; Nelson v. Simms, 23 Miss. 383, 57 Am. Dec. 144.”
In the application of the Goodall heirs to cancel the patent issued July 1, 1850, it was stated, and proof offered pro and con, that Goodall entered the land for mill purposes, and that he died while erecting a mill on the same. There is also proof showing that the land patented to him July 1, 1850, was in the mountains, where there never was any water power. This having been ascertained, complainant is now offering to show that there is no water power, and no mill was ever erected on the land in controversy, but that the remains of an old mill is found on the 40 acres north of this land in controversy, in the same section, township, and range, and from this fact it is argued that Goodall never intended to enter this land, but did intend to enter the 40 north of it, where there was water power, and where there is now the remains of an old mill. I do not attach any importance to the statement of the Goodall heirs, in their application for the cancellation of the patent of July 1, 1850. They removed from Arkansas about 1850, more than 50 years ago, were then children, reared in the mountains of northwest Arkansas, and never had lived on the land in controversy. Only one of them claims to have ever seen the mill. It is an absurdity to suppose they knew the numbers of the land entered by their father, or whether the mill was erected on any particular 40-acre tract. It was not only an absurdity on its face, but it was utterly immaterial. The records of the land office and the decision of the Department of
It accordingly appears that on November 4, 1848, William Goodall entered the tract of land in controversy; that immediately upon its entry it was subject to taxation, and withdrawn from the operation of the land laws of the United States; that by the mistake of the register of the land office a patent was issued for another tract, which is not that entered by Goodall; that long after the death of Goodall the error was corrected, the original patent canceled, and a correct patent issued to Goodall and his heirs for the land in controversy; that, when complainant made his homestead entry, it was not the property of the United States, nor was it subject to another entry for homestead purposes; that complainant’s bill is without equity, and must be dismissed, at his own costs.