197 P. 832 | Mont. | 1921
delivered the opinion of the court.
This appeal is from a ¡judgment entered in favor of the defendant in an action to quiet title to 154.26 acres of land in Ravalli county.
The plaintiff is the successor in interest of one Travers A. Million, and defendant is the successor in interest of Elmer L. Darling. In May, 1908, Darling, a qualified entryman, settled upon and improved the lands in controversy and thereafter, on December 2 of the same year, made entry in the Land Office at Missoula, produced the required evidence, paid for the lands at the rate of $1.25 per acre and received a receiver’s certificate. On October 4, 1912, the commissioner of the general land office canceled the entry solely on the ground that Darling refused to pay an additional amount equal to $1.25 per acre. Later Million was permitted to enter _the lands, and upon payment of $2.50 per acre received a patent. At the time plaintiff purchased from Million he had knowledge of the claim asserted by Darling and his successor. The trial court held that Million became vested with the legal title to the lands in trust for the use and benefit of defendant, and that the trust attached to the lands in the hands of plaintiff.
By the Hell Gate Treaty of July 16, 1855 (12 U. S. Stats.
In his proclamation of November 14, 1871, President Grant announced his conclusion that the territory mentioned in Article XI was not better adapted to the wants of the Flathead Indians than was the general reservation, and direction was given for the removal of the Indians from the valley to the reservation and for the opening of the valley lands to settlement as soon as the removal was completed. By the Act of Congress of 'June 5, 1872 (17 Stat. 226), the effect of the President’s proclamation was modified and provision was made again for removal of the Indians to the Jocko reservation, for a survey of the lands of the Bitter Boot Valley south of the mouth of the Lo-Lo Fork of the Bitter Boot Biver, and for the disposition of fifteen townships of those lands to qualified entrymen “in quantities not exceeding 160 acres to each settler at the price of one dollar and twenty-five cents per acre payment to be made in cash,” etc. The other terms of the Act are not material here. Subsequent legislation has amended the statute in certain particulars, but the provision fixing the sale price at $1. 25 per acre has not been changed.
The Act of Congress approved April 24, 1820 (3 Stat. 566), and later Acts which fixed the sale price of public lands were compiled in section 2357, United States Bevised Statutes of 1873 and 1878. That section declares that the sale price generally shall be $1.25 per acre, but it also contains this proviso: “That the price to be paid for the alternate, reserved lands along the line of railroads within the limits granted by any Act of Gongress, shall be two dollars and fifty cents per acre.”
The lands in controversy are in the Bitter Root Valley above (south of) the Lo-Lo Fork of the Bitter Root River, are included in the fifteen townships mentioned in the Act of June 5, 1872 (Hinchman v. McClain, 12 Land Dec. 49), and are within less than forty miles of the line of the Northern Pacific Railway.
With these facts and matters before him, the commissioner of the general land office held that the lands embraced in Darling’s entry could not be sold for less than $2.50 per acre. In other words, he held that the sale price of these lands is controlled by the proviso to section 2357, and not by the Act of June 5, 1872.
The land department is a special tribunal created by law for the purpose of determining conflicting claims arising over public land, and its decision upon a question of fact, in the absence of fraud, is conclusive upon the courts (Thomas v. Horst, 54 Mont. 260, 169 Pac. 731; Quinby v. Conlan, 104 U. S. 420, 26 L. Ed. 800 [see, also, Rose’s U. S. Notes]), but its construction of the law is not binding when called in question in a proper judicial proceeding. (Shepley v. Cowan, 91 U. S. 330, 23 L. Ed. 424 [see, also, Rose’s U. S. Notes]; Small v. Rakestraw, 28 Mont. 413, 104 Am. St. Rep. 691, 72 Pac. 746; Love v. Flahive, 33 Mont. 348, 83 Pac. 882.)
The grant to the Northern Pacific was one in praesenti, though a survey ol the lands and the definite location of the line of
But counsel for appellant relies with confidence upon the decision of the land department in Hollensteiner’s Case, 38 Land Dec. 319, wherein it was held that these lands were subject to sale at ,a price not less than $2.50 per acre. The effect of the decision in that case is that, although these lands did not pass to the railroad company by reason of the fact that they were comprised in reserved, Indian country, they are within the granted limits; “that the fact of the nearness of the railroad to the even sections is. what enhances their value”; that the proviso to section 2357 applies to all reserved lands within the territorial limits of a railroad grant; that the Act of June 5, 1872, had sole reference to the sale of these lands for the benefit of the Indians; that the effect of the railroad grant upon these lands could not have been within the contemplation
But independently of these considerations, the determining
In its present form, section 2357 became effective as of December 1, 1873, but the Act of June 27, 1866 (14 Stat. 74), which authorized the compilation which became the Revised Statutes of 1873; indicates clearly that it was not the intention to enact new statutes, but to bring together, classify and arrange existing laws. The proviso, in substance and practically in form, is found in earlier enactments, so that it may be said in all fairness that the Act of June 5, 1872, represents a later expression of the legislative will than the proviso itself.
There is not any irreconcilable conflict between the two statutes, and consequently there was not a repeal of the earlier Act by the later one. The Act of 1872 removed these fifteen townships from the effect of the general statute—the proviso—
It is, to say the least, something of a serious reflection upon the intelligence of the members of Congress who participated in the legislation to urge that the Act of 1872 was passed without any consideration given to the effect which the Northern Pacific grant might have upon these lands. The granting Act had been passed eight years previously and the line of general route of the road had been fixed on February 21, 1872, four months before and during the very session of Congress which passed the Act on June 5 of that year.
Whatever may have been the inducement to Congress to fix the sale price of these lands at $1.25 per acre, the fact remains that it did so and that there is not any ambiguity or uncertainty in the language employed. We must assume, therefore, that the terms of the Act were intended to convey the meaning which they fairly import. If it was the intention of Congress that the price—$1.25 per acre—should apply only to such of the lands included in the fifteen townships as might fall without the place limits of the Northern Pacific grant or indemnity strip, some appropriate reference to the matter would have been made.
Impelled by these considerations, we hold that the sale price of the lands in controversy was fixed by the Act of June 5, 1872, and that the land department erred in its construction of the law.
We are of the opinion that the trial court reached the correct conclusion, and accordingly the judgment is affirmed.
Affirmed.