149 F. 694 | 9th Cir. | 1907
This is an equitable action in which the complainants ask for a decree declaring void a certain deed by which the defendant acquired the legal title to lot 4, in block B, in the town of Juneau, Alaska. The bill of complaint also prays for general relief. The deed was executed to defendant by the trustee of the town site of Juneau under section 11 of the act of Congress approved March 3, 1891, entitled “An act to repeal timber-culture laws, and for other purposes.” Act March 3, 1891, c. 561, 26 Stat. 1099 [48 U.S.C.A. § 355], The bill of complaint alleges that a trustee of the town site of Juneau was duly appointed, under the statute above referred to, and “that at all times since 1885, plaintiffs and their grantors have been and now are (the paramount title of the United States alone intervening) the owners of and in the actual and exclusive possession of, until hereinafter named, and at all times since said year 1885, have been, and now are entitled to the im
The defendant interposed a demurrer to the bill upon the ground that “the same does not state facts sufficient to constitute a cause of action, in this: there are no allegations of fact showing how, or the means whereby, the plaintiffs were prevented from having knowledge of the hearing before the town site trustee, and there litigating the right of possession of the lot sued for, nor is it shown that such want of knowledge, or any want of opportunity to be heard before said town site trustee was induced or caused by the defendant.” The District Court sustained the demurrer, and the plaintiffs, having declined to amend, thereupon rendered its judgment dismissing the action. The complainants appeal, and the ruling of the court sustaining the demurrer is assigned as error.
Section 11, of the act of March 3, 1891, entitled “An act to repeal timber-culture laws, and for other purposes” (chapter 561, 26 Stat. 1099 [48 U.S.C.A. § 355]), provides: “That until otherwise ordered by Congress lands in Alaska may be entered for town-site purposes, for the several use and benefit of occupants of such town sites, by such trustee or trustees as may be named by the Secretary
Acting under the authority conferred by this section, the Secretary of the Interior on June 3, 1891, made certain regulations providing for the entry of town sites and the disposition of lots thereon for the benefit of the occupants thereof. 12 Land Decisions, 583. These regulations provide for the entry of the town sites and the actual survey of the same into lots, blocks, streets, and alleys, and the filing of the plats of the survey in the General Land Office. The plats were required to show what lots were occupied, and the names of the owners, the designation of the owner of any lot not, however to be “taken or held as in any sense or to any degree a conclusion or judgment by the trustee as to the true ownership in any contested case coming before him.” Paragraphs 28 and 29 of said regulations further provide:
“28. As soon as said plats are completed, the trustee will then cause to be posted in three conspicuous places in the .town, a notice to the effect that such survey and platting have been completed and notifying all persons concerned or interested in such town site that on a designated day he will proceed to set off to the persons entitled to the same, according to their respective interests, the lots, blocks, or grounds to which each occupant thereof shall be entitled under the provisions of said act. Such notices shall be posted at least fifteen days prior to the day set apart by the trustee for making such division and allotment. Proof of such notification shall be evidenced by the affidavit of the trustee, accompanied by a copy of such notice.
“29. After such notice shall have been duly given, the trustee will proceed on the designated day, except in contested cases which shall be disposed of in the manner hereinafter provided, to set apart to the persons entitled to receive the same the lots, blocks and grounds to which such persons, company or association of persons shall be entitled, according to their respective interests,” etc.
It is true that in the case from which the foregoing quotation is made, and in all of the cases above cited, the controversy was between parties who had actually appeared before the land officers and submitted evidence in support of their respective claims, but these facts do not affect the principle upon which they were decided, or render inapplicable to the cause before us the rule which they declare, namely, that the decision of the officers of the Land Department in the matter of a claim of right to enter public land of the United States, which was regularly and properly before them, cannot be set aside, except upon some one
See, also, Crim v. Handley, 94 U.S. 652, 24 L.Ed. 216; Dunlap v. Steere, 92 Cal. 344, 28 P. 563, 16 L.R.A. 361, 27 Am.St.Rep. 143; Railroad Co. v. Neal, 1 Woods, 353, Fed.Cas.No. 11,534; Brooks v. O’Hara (C.C.) 8 F. 529.
The fact that the proceeding in which defendant obtained the legal title to the lot in controversy was ex parte is not of itself sufficient ground to justify a court of equity in entering upon an inquiry as. to the truth or falsity of the evidence upon which the trustee acted in confirming the defendant’s claim to such lot, but under the doctrine of the cases just cited it was incumbent upon the complainants to allege in their bill facts showing that without negligence upon their part they were prevented by fraud or by accident from appearing before the trustee of the town site of Juneau, and there submitting evidence to establish their right to enter the lot now claimed by them. There is no allegation in the bill that the trustee failed to give the notice required by the regulations of the Secretary of the Interior, or, if such notice was given, that the failure of the complainants to be informed thereof and to appear before the trustee with their proofs was the result of fraudulent conduct upon the part of the defendant, or of some accidental cause which would be recognized by a court of equity as sufficient ground upon which to hold that they ought not to be concluded by the action of the trustee in conveying the lot in controversy to defendant. The demurrer directed specific attention to these defects in the bill, and was properly sustained. It is not sufficient to allege generally that the complainants did not have knowledge of the hearing before the trustee, or opportunity to prove that the representations made by the defendant to the trus
Decree affirmed.