67 P. 464 | Kan. | 1902
The opinion of the court was delivered by
Action brought by O. H. Pratt to recover from the Missouri, Kansas & Texas Railway Company (herein called “the company”) payments made upon and money expended under a contract for the purchase of real estate. The facts are agreed upon, and are briefly these :
The company succeeded to the name and all the rights of the Union Pacific Railway Company, Southern Branch, under an act of congress granting aid to said company in the building of a line of railvray through the state from Fort Riley to the city of Fort Smith, in the state of Arkansas. The north half of the southwest quarter of section 2 in township 26, and the east half of the northwest quarter of section 34 in township 25, all in range 20, were tracts of land selected by the railway company as part of its land grant. On the 4th day of September, 1884, the company entered into two written contracts of sale of
It is earnestly contended by counsel for the company that, in the decisions made in the contest cases by the land department of the government denying the right of the company to these tracts of land selected under its grant, the officers of the land department making such decision misconceived and misapplied the law relating thereto. ' And as a consequence thereof the decisions made in the contest cases are wrong in law and not binding upon this court. In our opinion this is not an open question here. The decisions made by the proper officers of the land department of the general government in the contest cases are in this action as final and conclusive upon this court as the final judgment of any court of competent jurisdiction. And this because this is not a case in which that question can be raised or determined. After final decision of a contest case by the land department of the general government awarding a portion of the public domain to a contesting party, the legal correctness of such decision can only be reexamined and redetermined in a proper action brought against the successful party for that purpose. Such final decision is not subject to collateral attack, is conclusive upon questions of fact, and the questions of law determined thereby are reviewable only by direct proceeding.
In the cases of Johnson v. Towsley, 80 U. S. 83, 20 L. Ed. 487, and Moore v. Robbins, 96 U. S. 535, Mr. Justice Miller says:
“When the law has confided to a special tribunal the authority to hear and determine certain matters arising in the course of its duties, the decision of that tribunal, within the scope of its authority, is conclu*122 sive upon all others. That the action of the land-office in issuing a patent for any of the public land, subject to sale by preemption or otherwise, is conclusive of the legal title, must be admitted under the principles above stated, and in all courts and in all forms of judicial proceedings where this title must control, either by reason of the limited powers of the court or the essential character of the proceeding, no inquiry can be permitted into the circumstances under which it was obtained.”
In the case of Aurora Hill Con. Min. Co. v. Mining Co. et al., 34 Fed. 515, it is said :
“The decisions of department officers upon questions of law or fact are not subject to collateral attack; upon questions of fact their decisions are conclusive upon all parties ; upon questions of law their decisions can only be reviewed in a proper case made in a direct proceeding for that purpose.” (Marquez v. Frisbie, 101 U. S. 473, 25 L. Ed. 800 ; Ard v. Pratt, 43 Kan. 419, 23 Pac. 646.)
In this case the successful parties in the contest cases are not parties to the record, and cannot be, as they are strangers and not proper parties to a determination of the question involved in this controversy.
Again, it is contended that the oral agreement made between the officers of the company and plaintiff, that further payments should not be made upon the contract until the contest proceedings over the land were determined and the right of the company thereto established, although made within the scope of the authority conferred upon such officers, was an attempt to modify the terms of a written contract in relation to land without consideration therefor, and consequently null and void. With this contention we do not agree. The effect of the oral agreement made was not to change the binding effect of the written contract in relation to the land, but was an express
It is further contended that in no event could the plaintiff recover the sums of money voluntarily paid as taxes upon the property. Whatever may be the general rule in this respect, payment of the taxes made in this case was under the express provisions of the contract with the company. Recovery for taxes paid under such circumstances was expressly recognized by this court in Doom v. Curran, 52 Kan. 360, 34 Pac. 1118.
The right of the company to receive title from the general government under the act of Congress granting it aid, to these tracts of land which it had obligated itself to convey to plaintiff, having been by the proper legal tribunal determined adversely to the company, its inability to comply with the terms of its contract with plaintiff was established, and its lia
Judgment affirmed.