A settler upon unsurveyed public lands in California, who filed
no declaratory statement after the return of the plat of the survey
to the proper local land office, could not, under the Act of March
3, 1853, 10 Stat. 244, acquire by his settlement a right of
The facts and the assignment of errors are stated in the opinion
of the Court.
MR. JUSTICE CLIFFORD delivered the opinion of the court.
Preemption rights of the kind in controversy are regulated by
the Act of March 3, 1853, 10 Stat. 244, from which it appears that
unsurveyed as well as surveyed lands not exempted by the same act
are subject to the preemption laws, with all the exceptions,
conditions, and limitations expressed in such, unless otherwise
herein provided. Provision is also made for the appointment of a
surveyor general and of a register and receiver, with the same
powers and duties as conferred and prescribed under the prior
preemption laws. Official surveys were to be made, and the same
section which gives the right to preempt the lands provides that
where unsurveyed lands are claimed, the usual notice of such claim
shall be filed within three months after the returns of the plats
of surveys to the land office.
Proceedings in the nature of an action of ejectment were
Page 100 U. S. 114
instituted by the plaintiff to recover certain lands situated in
Humboldt County, California and damages for their detention.
Service was made, and the defendant appeared and filed what is
called in the state practice an answer and cross-complaint, in
which he admits possession but denies that it is wrongful, and sets
up a preemption title to the lands.
Complete title to the lands is claimed by the plaintiff under a
patent from the United States issued to him as a preemptor. On the
other hand, the defendant claims that he was justly and legally
entitled to the patent, which was wrongfully issued to the
plaintiff, and the object of the cross-complaint is to establish a
trust in favor of the defendant, and to compel the plaintiff to
convey the lands to the defendant.
Every allegation of the cross-complaint being denied by the
plaintiff, he demurred to the same, and showed for cause as
follows: 1. that it does not appear by the allegation of the same
that the defendant filed the required notice of his claim in the
land office for the district within three months after the plats of
the survey of the lands were returned to the said land office; 2.
that it appears that all the matters in controversy had previously
been determined and adjudicated by a competent tribunal in an issue
respecting the title to the same property between the same parties;
3. that it does not appear that the defendant ever made the proof
required by law before the register and receiver of the land
offices, prior to the day appointed for the commencement of the
sale of the land; 4. because the cross-complaint shows that the
defendant did not in person occupy the land for nearly a year
before the cross-complaint was filed.
Hearing was had. and the court of original jurisdiction
sustained the demurrer and rendered judgment for the plaintiff,
which, on appeal, was affirmed by the supreme court. Being
dissatisfied with the judgment, the defendant sued out a writ of
error and removed the cause into this court.
Errors assigned here are as follows: 1. that the court below
erred in sustaining the demurrer to the cross-complaint; 2. that
the court erred in affirming the judgment of the subordinate state
court; 3. that the court erred in holding that the declaratory
statement of the defendant was a nullity because it
Page 100 U. S. 115
was filed before the plats of survey were returned into the land
office by the surveyor general.
Sufficient appears to show that the land was unsurveyed, and
that the plaintiff made entry and settlement of the land in
controversy on the first day of November, 1853, before the plats of
survey were made; that the defendant made entry and settlement on
the same quarter-section the 22d of February, 1854, the land being
still unsurveyed. Nothing is exhibited in the record to enable the
court to ascertain the precise dated of the survey, but it appears
that the defendant filed his notice of claim or declaratory
statement prior to the return of the plats of survey to the local
land office, the record showing that the declaratory statement of
the defendant was filed on the twentieth day of February, 1856, and
that the plats of the surveys of the land were not returned into
the local land office until the 26th of April following.
Congress has provided that where unsurveyed lands in that state
are claimed by preemption, the usual notice of such claim shall be
filed within three months after the return of plats of surveys to
the land officer, and proof and payment shall be made prior to the
day appointed by the President's proclamation for the commencement
of the sale, including such lands.
Declaratory statements under the original act might be made
within three months after the return of the plats of surveys to the
local land offices, and it was effectual as a step to secure the
right, if it was made within one year from the passage of the act,
which last provision was amended by a subsequent act, and extended
to settlements made prior to and within two years after the passage
of the amendatory act. 12 Stat. 410.
Due settlement of the quarter-section in controversy was made by
the plaintiff more than four months before the defendant entered
upon it and commenced his settlement, but he did not file the usual
notice of claim or declaratory statement until the 11th of October,
1858, more than two years after the amendatory act went into
operation. Authority to file such a declaratory statement within
three months after the plats of survey are returned into the local
land offices is expressly given by the act of Congress, but there
is no authority given to file
Page 100 U. S. 116
before that time, from which it appears that the declaratory
statement filed by the defendant was premature. Attention to that
subject was called on the trial of the case in the court below, and
the supreme court of the state held that the statement of the
defendant, inasmuch as it was filed without authority of law, was a
nullity, and this Court adopts that conclusion as correct.
System and order are essential in administering the land
offices, and if a party may anticipate the time for such an act as
prescribed by law for two months, it is not perceived why he may
not for two years, or even for a longer period, which would
necessarily introduce confusion, uncertainty, and irregularity of
practice in the local offices of the Land Department. For these
reasons, the Court is of the opinion that the declaratory statement
filed by the defendant is inoperative and without any legal effect.
Daniels v. Lansdale,
43 Cal. 41; 1 Lester's Land Laws,
400; Copp's Land Laws, 420.
He filed his declaratory statement more than two months before
the return of the plats of survey, and in direct violation of the
law upon the subject, which required it to be filed within three
months after such return, as appears from the explicit language of
the act; nor can the court relieve the defendant from the
consequences of his failure to comply with the express
Opposed to that is the suggestion that the statement remained in
the local land office when the plats of survey were returned there;
but that circumstance will not remove the difficulty, as it was
made and filed without authority of law, and was in every sense an
unofficial document not belonging to the office. Such a notice of
claim or declaratory statement is indispensable necessary to give
the claimant any standing as a preemptor, the rule being that his
settlement alone is not sufficient for that purpose.
Attempt is made to show that the plaintiff failed to comply with
the requirements of the preemption laws as to the settlement,
occupancy, and cultivation of land entered for preemption; but the
court is of the opinion that the defense in that regard is wholly
unsustained. Nothing of moment is alleged in the answer to support
the alleged defect except that the
Page 100 U. S. 117
plaintiff purchased a dwelling house instead of erecting the one
which he occupied. His entry and occupancy of the tract are
admitted, and the Court is of the opinion that it is immaterial
whether he built the dwelling house himself or hired an agent to
erect it for him or whether he purchased it after it was built by
another, provided it appears that he was the lawful owner of the
dwelling house and made the entry and settlement in good faith and
continued to occupy and cultivate the land, as required by the
preemption laws. Enough appears to show that the dwelling house was
there on the land, and that it was owned, possessed, and occupied
by the plaintiff as his home more than three months before the
defendant entered and attempted to make his settlement. 1 Lester's
Land Laws 424.
Suppose that is so, still the defendant insists that he was
entitled to the patent because the plaintiff did not file his
declaratory statement until more than two years after the plats of
the survey of the land were returned into the local offices. Grant
that, but it only shows that both parties settled upon the land
while it was unsurveyed, and that each was to some extent in fault
in filing his declaratory statement, the difference being that the
defendant filed his before he had any right to file it under the
preemption act, which rendered it a nullity, and that the plaintiff
did not file the required notice of claim until the time allowed by
the amendatory act had expired. Such a notice, if given before the
time allowed by law, is a nullity, but the rule is otherwise where
it is filed subsequent to the period prescribed by the amendatory
act, as in the latter event it is held to be operative and
sufficient unless some other person had previously commenced a
settlement and given the required notice of claim. Johnson v.
13 Wall. 72, 80
U. S. 91
Tested by that rule, it is clear that the equity of the
plaintiff is superior to that of the defendant, as the latter never
filed any other notice of claim than that which preceded the return
of the plats of survey into the local land offices.
Other defenses failing, the defendant contends that the
plaintiff failed to comply with the requirements of the preemption
laws in other respects; but the Court is of the opinion
Page 100 U. S. 118
that the defense in that regard is not made out, it appearing
that he had a dwelling house thereon of which he was the lawful
owner and that his occupancy was continuous, either in person or by
his tenant. 5 Stat. 455, sec. 10; 1 Lester's Land Laws 424.
Beyond doubt the declaratory statement of the defendant was a
nullity, as it was filed at a time when the act of Congress gave it
no effect, and it is equally clear that the notice of claim was not
seasonably filed by the plaintiff, but the entry and settlement of
the plaintiff were first made -- from which it follows that the
equity, as between him and the defendant, is decidedly in his
favor, the universal rule in such cases being that in the
adjustment of such controversies the superior equity must prevail.
Story, Eq.Jur. (9th ed.) sec. 64d
. Qui prior est in
tempore potior est in jure.
Jeremy, Eq.Jur. 285, 286;
10 Pet. 177; Adams's Equity (ed. 1872)
Nor does the plaintiff rely entirely upon the proposition that
his is the superior equity, which of itself is sufficient to show
that the judgment below must be affirmed, but it also appears that
the parties were fully heard before the Land Department, where the
decision was in his favor, and that he now holds the patent for the
land; from which it follows that the legal title is in the
Neither of the parties complied strictly with the law in filing
the declaratory statement, but inasmuch as the plaintiff holds the
legal title and the superior equity, it is clear that the defendant
has no such standing in court as will justify a court of equity in
interfering in his behalf.
Complaint is made by the defendant of the decision of the Land
Department in granting the patent to the plaintiff, but it is too
clear for argument that no case is made to warrant the court here
in reversing that decision. Shepley v. Cowan, 91 U. S.
; Moore v. Robbins, 96 U. S.
Reference to these authorities is sufficient to show that the
defendant is not entitled to the relief asked, but if the law were
otherwise, it would not benefit the defendant, as he does not show
what questions were litigated before the land officers, nor does
the record contain any specification as to what the
Page 100 U. S. 119
rulings of the officers were in regard to any particular point.
It appears that there was a contest between the parties there and
that the case was decided in favor of the plaintiff, but the
grounds of the decision are not stated. Such being the state of the
pleadings, it is impossible to say that any error of law was
committed by the tribunal.
Viewed in any light, it is clear that there is no error in the
record, and the assignment of errors must be overruled.