32 Nev. 278 | Nev. | 1910
Lead Opinion
By the Court,
Respondent brought this action to recover, and alleged that it was the owner in fee and entitled to the immediate possession of certain pieces or lots of land at the town of Miller, in Esmeralda County, situate in the NE% of SW%, Section 11, Township 3 N., Range 40 E., M. D. M. The answer denied that the respondent owned the land, and denied that the appellants wrongfully or unlawfully withheld the possession, and alleged: "(1) That long prior to August 15, 1907 (the date alleged in the complaint as the time when respondent became seized in fee and entitled to the immediate possession of the land in controversy), the defendants and their grantors located on certain lands at Miller, Esmeralda County, Nevada, which said lands are described in paragraph 2 of plaintiff’s complaint, but that at the date of said settlement by the said defendants and their grantors said land so described as aforesaid was vacant, unoccupied and unappropriated public domain belonging to the United States of America, and that at the date of the location of the defendants and their grantors there were no- improvements upon said land whatever, and no one asserted or claimed any right, title or interest in or to the said lands adverse to the defendants herein. (2) That at all the times mentioned in the plaintiff’s complaint said land described as aforesaid was vacant government land belonging to the United States, and is at the present time the property of the United States, and that the plaintiff has no title, claim or interest in or to said land, either in the fee thereof or in the possession thereof.”
Upon the trial the respondent introduced in evidence, over
The important question involved is whether under the facts related this patent comes within, or is an exception to, the general rule that a patent is conclusive, and cannot- be attacked collaterally. Can the appellants rely and prevail upon a possession in themselves running from a time prior to the issuance of the patent? The act of Congress mentioned in the patent as the one under which this land was selected and patented (Act of June 4, 1897, c. 2, 30 Stats. 36) provides: "That, in cases in which a tract covered by * * * a patent is included within the limits of a public forest reservation, the settler or owner thereof may, if he desires to do so, relinquish the tract to the government, and may select in lieu thereof a
If the respondents were in possession at the time the application was made for the patent, such prior possession constituted property, and under well-recognized legal principles gave them a right to the land and to their buildings or improvements, and the land was not subject to entry by-another under the acts of Congress, as held in numerous cases, including Reinhart v. Bradshaw, 19 Nev. 257 (3 Am. St. Rep. 886), from which we quote: "In Nickals v. Winn, 17 Nev. 188, the plaintiff was in the possession of a large tract of public land. He neglected to avail himself of his right to purchase in preference to others, and Winn, taking advantage of the situation, undertook to purchase 160 acres thereof from the government. It was held upon the authority of Atherton v. Fowler, 96 U. S. 513, 24 L. Ed. 732, and under decisions referred to in the opinion, that the right of preemption could not be exercised upon land occupied by another. 'The generosity by which Congress gave the settler the right of preemption,’ said the court in that case, 'was not intended to give him the benefit of another man’s labor, and authorize him to turn that man and his family out of his home. It did not propose to give its bounty to settlements obtained by violence at the expense of others. The right to make a set
This property interest and possessory right is of such magnitude that the appellants ought not to be deprived of it under the ordinary constitutional guaranties, state and federal, in a proceeding either before the land office or a court, to which they were not parties and in which they were not given notice or an opportunity to be heard. Otherwise there could be deprivation of rights by the land office in an ex 'parte proceeding without due process of law, thereby setting aside constitutional guaranties which the decisions universally hold must be respected by the courts, and resulting in the loss of the settler’s possession and improvements by fraud or mistake, when neither the land office nor a judicial tribunal would strip him of his holdings if he were given an opportunity to appear and prove that he had prior possession. If it be claimed or admitted that the settler has no rights as against the United States, and that the government may confiscate his buildings and appurtenances on the public domain, it may be said in reply that the making of laws and the disposition of the public lands lie with Congress and not with the land office, except as it acts in pursuance of federal statutes, and that Congress has been careful in the different acts which authorize the patenting of unoccupied public lands to protect claimants holding prior possession by providing for notice and giving them a preference to purchase from the government; that, at least until there is confiscatory legislation warranting it, the possession and improvements of the
This is in keeping Avith the uniform course of federal legislation and judicial decisions, Avhich have recognized and guarded the prior possessors of land on the public domain and protected them against the intruder on their holdings. If the land office had any jurisdiction as to the subject-matter over land Avhich was in the possession of the appellants under an act of Congress which only authorized the issuance of a patent for vacant land, and was misinformed by petition or affidavit and concluded that the land Avas vacant Avhen in fact it was in the possession of the appellants, they ought not to be deprived of their rights by a Avrong finding in a proceeding to Avhich they Avere not parties. The acts of Congress control and their provisions govern the force of patents, Avhich cannot be varied in their effect by the omission from them of statutory provisions or the insertion of other or different ones.
The act authorizing the issuance of the scrip on which this patent AAras obtained does not provide for any notice to adverse claimants by personal service, by posting on the ground, by publication, nor in any other way, and does not attempt to empoAver the land office to prescribe notice. It is not shown that the appellants had any constructive or other notice which Avould have enabled them to assert their claims before the land office. Although courts take judicial notice of the rules of the general land office, it does not appear that there was any rule requiring the service, posting, or publication of notices in cases of this character at 'the time the patent was issued. If Congress attempted to confer authority on the land office to make such a rule, the question would still arise as to whether this is not, as distinguished from formal and ordinary
In United States v. Eaton, 144 U. S. 677, 12 Sup. Ct. 764, 36 L. Ed. 591, the court stated: "It was said by this court in Morrill v. Jones, 106 U. S. 466, 467, 1 Sup. Ct. 423, 27 L. Ed. 267, 268, that the secretary of the treasury cannot by his regulations alter or amend a revenue law, and that all he can do is to regulate the mode of proceeding to carry into effect what Congress'has enacted. Accordingly it was held in that case, under section 2509 of the Revised Statutes, which provided that live animals specially imported for breeding purposes from beyond the seas should be admitted free of duty, upon proof thereof satisfactory to the secretary of the treasury and under such regulations as he might prescribe, that he had no authority to prescribe a regulation requiring that, before admitting the animals free, the collector should be satisfied that they Avere of superior stock, adapted to improving the breed in the United States. * * * It would be a very dangerous principle to hold that a thing prescribed by the commissioner of internal revenue, as a needful regulation under the oleomargarine act, for carrying it into effect, could be considered as a thing 'required by law’ in the carrying on or conducting of the business of a wholesale dealer in oleomargarine, in such manner as to become a criminal offense. * * * ”
It is evident that the land office, proceeding under the act of Congress authorizing the granting of vacant land only, would not issue a patent for land occupied by appellants or others, unless misled by mistake, misrepresentation, or fraud, and that no patent would have been issued if the statute had provided for a proper notice, and such notice had been given, enabling the appellants to defend and they had appeared and showed that they were in possession, which they now seek to do after service of summons. Hence if the patent is now held to be conclusive, and consequently the appellants are to be dispossessed, the result attained will deprive them of their
In other cases Congress has provided for reasonable notice which gives adverse claimants an opportunity to establish their rights before the land office. The applicant for a mining patent must have the ground surveyed and staked and notice posted on the claim and published in a newspaper for sixty days. The homestead applicant is required to give notice and bring witnesses to prove that he has resided on the land for the required length of time. It would seem that the statute which controls in this case was drawn on the theory that only vacant land could be patented in lieu of tracts surrendered on forest reservations, and that, as it applied only to vacant land, there was no one to notify. But, if it transpires that the land patented was not vacant, the persons having possession and improvements there ought not to be deprived of their rights without notice to them in compliance with some proper act of Congress. To adjudicate otherwise would open the door for deception in the land office, and allow speculators and unscrupulous persons clandestinely and by fraud, misrepresentation, or mistake to obtain patents without notice, and deprive the owners of agricultural and other valuable lands and the people of whole towns and communities of their lots, dwellings, business houses, and other hard-earned holdings on the public domain. For the court to dispossess the rprior occupants of their homes and property under these circumstances, and allow them no protection except to request the attorney-general of the United States to institute suit to set aside the patent, which might be defended in the courts for years, while they were kept out of possession, would be poor relief and a palpable denial of justice. It would be different if the act of Congress had provided for and the appellants had been given proper notice and an opportunity in the land office to show a prior possession which might have protected them there and prevented the issuance of the patent or made it conclusive if they failed to appear, or if Congress in its control of the public domain had intended by any legislation to strip the settler of his prior possession and improvements without notice.
In Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 4, 50 C. C. A. 79, 61 L. R. A. 230, the court considered a number of cases which support these views. To allow the applicant to present his own proofs under the circumstances depicted, in the absence of and without notice to adverse claimants, and when the land office is without knowledge regarding the condition of the land excepting as informed by the applicant, and then hold that the patent is conclusive against the settler
The court went behind the patent and inquired into the regularity of the proceedings, the sufficiency and character of the evidence submitted on the application for the patent, and the defendant was permitted to introduce testimony before the court to contradict the statements set forth in the affidavit, the sufficiency of which had already been passed upon by the register and receiver before issuing the final certificate or receipt for the money for the land. In the opinion by Bigelow, J., it
"In Hardy v. Harbin, 4 Sawy. 536, Fed. Cas. No. 6,060, Justice Field said (page 540): 'The bill is filed for the purpose of having a trust declared and enforced, the plaintiff relying
In a late case (Brandon v. Ard, 211 U. S. 18, 29 Sup. Ct. 1, 53 L. Ed. 68), similarly in principle to the selection in an ex parte proceeding of lands in lieu of others surrendered in a forest reservation as involved in the pending action, a railroad company had selected as indemnity to supply alleged deficiencies in place limits, and obtained patent for, a piece of land which was in actual possession of Ard, and had been in his possession prior to the making of an order by the land office and the secretary of the interior withdrawing the land
To the various exceptions to the rale that a patent is conclusive, we think should be added cases like the present one, where the patent has been issued in a proceeding to which the claimants having prior possession of the land were not made parties or given notice, and that grave injustice would result in holding that they cannot attack a patent the issuance of which they were not given an opportunity to oppose, and which if held valid would deprive them of prior existing rights.
On behalf of respondent, it was suggested on the argument that the patent would relate back to the time of the issuance of the receipt or certificate, but the record is silent in this respect, and contains no reference as to when or whether any
The patent being regular on its face, its introduction in evidence alone raised a presumption that the government had conveyed the land to the Aztec Land and Cattle Company, Limited, and that the land was vacant at the time of its issuance. This presumption is overcome by the proof that the land was in the possession of the appellants at the time of, and for more than six months prior to, the date of the patent. If it had not been overcome, the presumption that the land was vacant would not have run backward any more than a showing that the appellants were in possession would have raised a presumption that they had been in possession previously to the time shown by the testimony. No evidence of the incorporation of the Aztec Land and Cattle Company, Limited, nor any. resolution by it authorizing the execution of a deed or power of attorney, was introduced. The power of attorney which was admitted, and which purports to be signed by the
This is no proof, and raises no presumption, that a selection of or application for the land described in the patent was made on that day or at any other time, nor that proof of the character of the land was made to or accepted by the land office at Carson City or Washington on that day or at any other specified time, and there is no evidence in the record from which it can be inferred that any evidence or proofs regarding the character or vacancy of the land was submitted to the land office upon any day before or after the time at which appellants are shown to have been in possession. The burden of proving ownership was upon the respondents, as it always is upon the party alleging it when denied, and it was not incumbent upon the appellants to establish a negative. (Jones v. Prospect Mountain Tunnel Company, 21 Nev. 339.) If the respondent is to rely upon the patent from a time previous to its issuance, it should supply evidence on a new trial of the facts showing the previous dateTipon which by relation it took effect; and, if the land was vacant at that time, a possession in appellants initiated later could not avail them. On the other hand, if the appellants were in possession at the time the patent took effect, that fact would appear directly, and whichever party is entitled would recover upon definite evidence, which would be more satisfactory than to rely upon a strained presumption, which might work an injustice.
Another contention of appellants is that respondent is with
It is claimed that the respondent must show that it or its grantors had possession prior to the possession of the appellants, and that a demand was made upon the appellants for possession before respondent can recover. But, if the land was vacant at the time the patent would take effect by relation, it would establish a complete title in the respondent on which it could recover without showing a prior possession by the respondent or its grantors. If the appellants were not making any claim to the land as against the patent, and had been previously in rightful possession, it would be necessary to make a demand upon them before judgment could be recovered against them for costs. In 15 Cyc. 56, it is said: "Notice to quit or demand for possession is necessary, and as a rule is only necessary, where the relation of landlord and tenant exists, or where there is a privity or connection of title between the parties. Within this. rule, or as qualifications of or exceptions thereto, such notice or demand is required where defendant has so entered and holds possession that he cannot be treated as a trespasser; where one holds under license from the crown, under an executory contract for purchase, under a contract for purchase from an infant, under a sublease, or under an agreement, with relation to a division line and occupation, which amounts to a license to occupy until revoked. But notice or demand is unnecessary where defendant has repudiated or otherwise terminated the prior relationship, and has asserted a hostile possession or claim; * * * where he denies or disclaims plaintiff's tiij.e, interest, or right of possession, and holds adversely or independently, in hostility to plaintiff, and under a claim o'f right in himself.”
It is contended that the ruling on the motion for nonsuit can be reviewed only on a motion for a new trial, but an order granting or refusing a motion for a nonsuit depends upon
We do not understand that respondent is insisting upon other technical objections which were made.
The judgment of the district court is reversed, and the case is ordered remanded for a new trial.
Dissenting Opinion
dissenting:
Defendants at the date of the issuance of the patent under which plaintiff claims were occupants and in such possession thereof that the land in controversy upon said date could not be regarded as vacant land within the meaning of the acts of Congress governing the issuance of such patents. (Act of June 4, 1897, c. 2, 30 Stats. 36; Act of June 6, 1900, c. 791, 31 Stats. 588, 614; Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 4, 50 C. C. A. 79, 61 L. R. A. 230; Shaw v. Kellogg, 170 U. S. 312, 18 Sup. Ct. 632, 42 Pac. 1050; Kern Oil Co. v. Clark, 30 Land Dec. Dep. Int. 550, 555.) There is nothing in the record, however, which shows when the patent was applied for, or that defendants were in possession upon the date of such application. There is testimony that defendants were known to be1 in possession six months or more prior to August, 1907. There is a recital in the power of attorney to Hugh H. Brown that the Aztec Land and Cattle Company surrendered their land within the forest reserve back to the government on'May 29, 1906. The forms required by the general land office indicate 'that contemporaneous with the relinquishment of the forest 'reserve land to the United States the selection of the lieu land is made and accompanied with
If, as a matter of fact, the land is vacant at the time of the application for the lieu land and the proofs in support thereof are offered, any occupation thereafter could not in my judgment be set up as against a patent actually issued. Upon the other hand, it is my conclusion that if the land is actually occupied, and hence not vacant, and proofs are fraudulently made to the effect that the land is vacant, an occupant of the land, especially one who had no notice of the application, could set up such fraud as a defense in a suit of the character now under consideration. This view, I think, finds support in the following authorities: Johnson v. Towsley, 13 Wall. (80 U. S.) 72, 20 L. Ed. 485; Shepley v. Cowan, 91 U. S. 330, 23 L. Ed. 424; Moore v. Robbins, 96 U. S. 530, 24 L. Ed. 848. It is the general rule, however, that an occupant of the public land without title, and without any attempt being made to secure title, cannot resist the enforcement of the patent of the United States on the ground of such occuparrcy. (Sparks v. Pierce, 115 U. S. 408, 6 Sup. Ct. 102, 29 L. Ed. 428; Treadway v. Sharon, 7 Nev. 37; Whittaker v. Pendola, 78 Cal. 296, 20 Pac. 680; Cragg v. Cooper, 150 Cal. 584, 89 Pac. 346; Helstrom v. Rhodes, 30 Utah, 122, 83 Pac. 730.)
The patent issued to the Aztec Land and Cattle Company was regular and lawful upon its face, and it is presumed to have been regularly issued. Cyc. correctly states the law as follows: " Under the rule that public officers are presumed to do their duty, the presumption is that all necessary preliminary steps to the issuance of a patent have been taken, and that the patent was regularly issued and is valid and passes the legal title. But the presumption of the validity of the patent may be rebutted by proof that it was issued without authority of law or was obtained by fraud; the burden of proof being upon
The proof upon the part of the plaintiff establishes the fact that its immediate grantor had a government patent to the land in controversy, and that it had entered into possession of the land embraced within such patent, excepting the portion occupied by defendants, and a small portion not included in the deed of plaintiff’s grantor.
Against this showing there was nothing but the bare occupancy of the defendants, which is insufficient to overcome the presumptions in favor of the patent. Had the defendants, instead of resting upon the proofs offered by the plaintiff, proved that they were in occupation of the land prior to the application for the patent and had no notice of the proceedings upon which it had been obtained, I am of the opinion plaintiff could not have recovered, but it cannot be said that the proofs upon the part of the plaintiff were not sufficient. to wai’rant the court in denying the motion for a nonsuit, or to support the judgment in the absence of other evidence.