Rose v. Nevada & Grass Valley Wood & Lumber Co.

73 Cal. 385 | Cal. | 1887

Paterson, J.

— The patent to plaintiff’s grantor was issued under the provisions of section 2306, Revised Statutes of the United States. This section was a part of the act of Congress passed April 4, 1872, and is entirely independent of other sections of chapter 5, among which it is placed. (U. S. R. S., sec. 5596.) Unlike our codes, the Revised Statutes of the United States are not to be read as one act, it being expressly provided that “ the arrangement and classification of the several sections of the revision have been made for the purpose of a more convenient and orderly arrangement of the same, and therefore no inference or presumption of a legislative construction is to be drawn by reason of the title under which any particular section is placed.” (U. S. R. S., sec. 5600.) Under the act referred to as amended in June, 1872, the additional entry allowed to honorably discharged soldiers and sailors was confined to lands contiguous to the tract embraced in the first entry. (17 Stats, at Large, 333.) A year later this restriction was removed, and the section as originally passed was restored. The natural and logical conclusion to be drawn from these acts is, that occupancy on the part of the claimant is not required. The government certainly did not intend that the beneficiary should abandon his original homestead, which he has cultivated and improved, in order to secure the additional number of acres which he is authorized by the statute to locate at another place. The provisions of other sections of chapter 5, respecting residence upon the land entered are, therefore, inapplicable to the additional homestead entries under section 2306. (Knight v. Leary, 54 Wis. 459.) Assuming the irrevocable power of attorney from Gano and wife to Talbot to be, as claimed by appellant, an assignment of the applicant’s right to the land, and of Gano’s right to his additional homestead, still we find nothing in the statutes referred to which will authorize us in holding such power of ■attorney to be null and void. As stated before, section 2306 is independent of the other provisions of chapter 5; and in the absence of an express prohibition against an alienation of the property by the claimant after the issuance of a certificate from the general land-office, to locate in person or by agent a certain number of acres, we cannot say that the right so to alienate does not exist. It is a right which need not in terms be granted by the sovereign authority, for it exists if not expressly prohibited, or opposed to public policy. The location and entry were made in the name of Gano, the beneficiary of the act. Congress has not said that the right to sell should not exist before actual entry, nor has it required any occupation, consideration, or duty of any kind as a condition precedent. In all cases where it has been the intention of Congress to prevent alienation by the beneficiary, such intention has been clearly expressed. Thus the act of Congress of 1854, under which the Sioux half-breed scrip was issued, provided expressly that no transfer or conveyance of the certificate should be valid. (Myers v. Croft, 13 Wall. 291; Mullen v. Wine, 26 Fed. Rep. 206.)

The commissioner of the general land-office has authority to make such regulations respecting the disposal of the public lands as he may deem proper, and such regulations, when not repugnant to the acts of Congress, have the force and effect of laws. (Poppe v. Athern, 42 Cal. 607.) The right of claimants to enter additional lands under section 2306, through attorneys and assignees, has been the subject of much discussion among the officers of the land department of the government. In a letter to the secretary of the interior, dated February 17, 1877, the commissioner called attention to the injustice and hardship of rules which had been formulated and adopted by the department regulating entries under section 2306. Acting upon the suggestions therein contained, Secretary Chandler directed a modification of his former decision so as to allow entries to be made by agents and assignees under certain restrictions. The officers of the land department received Gano’s entry under his power of attorney to Talbot, considered the evidence respecting his claim to the land described in the complaint, and upon their decision the patent of the government has been issued to him in his name. There is nothing in the regulations under which they acted repugnant to the acts of Congress, and their action is final and conclusive.

We have considered this case upon its merits, disregarding the question of the sufficiency of appellant’s assignments of error, or his right to attack the validity of the patent without showing that his claim is connected with the paramount source of title.

The judgment and order are affirmed.

Temple, J., and McKinstky, J., concurred.