On proceedings to cancel an entry which has been transferred,
where the Land Department has notice thereof, and the records show
the name and address of the transferee, the transferee has a right
to notice.
Upon a writ of error to a state court, this Court has no right
to review its decision upon the ground that the finding was against
evidence or the weight of evidence.
It appearing from the facts that, at the time of making their
entries, entrymen were entitled to purchase lands under the Act of
Congress of June 3, 1878, for the sale of timber lands in
Washington Territory and elsewhere, and that, in the purchase of
the land, they fully complied with the laws of the United States
and the rules and regulations of the Land Department; that the
applications were allowed and certificates duly issued as applied
for, and the lands included in the entries were at all times
chiefly valuable for timber thereon and at that time unfit for
cultivation, and that thereafter based upon a misconstruction of
the act of 1878 the land office cancelled the entries on the ground
that as the land could be cultivated after the removal of the
timber, it was not subject to entry as timber land:
Page 189 U. S. 347
Held: that the original entries were valid, and that
the conveyances of the original entrymen passed a good title to
their grantee for which he was entitled to a patent from the United
States.
The plaintiffs in error, in December, 1898, brought this action
in the state court against the defendant for the purpose of
quieting their title to certain land described as section 32 in
township 9, etc., situated in Cowlitz County, State of Washington.
They obtained judgment in their favor for the northwest and
southwest quarters of the section, but the court gave judgment in
favor of the defendant for the northeast and the southeast quarters
of the same section, and directed that the patents for the two
quarters of the section, which had been issued on June 25, 1890, to
plaintiffs' grantors, should be held by the plaintiffs in trust for
the defendant, and that the plaintiffs should execute a proper deed
therefor, and, in default of such deed of conveyance, the decree of
the court was to stand and be treated in the place of such deed.
The plaintiffs appealed from that portion of the judgment just
described to the supreme court of the state, where it was affirmed,
and they have brought the case here for review.
The northeast and the southeast quarters of the section were
entered in the proper land office in Washington under the Act of
Congress approved June 3, 1878, and entitled "An Act for the Sale
of Timber Lands in the states of California, Oregon, Nevada, and in
Washington Territory." 20 Stat. 89. These entries were made on May
26, 1883, and the entrymen, after payment for the land by them to
the land office and the receipt of a certificate of such payment,
and about six months thereafter, assigned and transferred the
certificates to the defendant for a valuable consideration paid to
them by him. After such transfers had been made and a record of the
deeds of conveyance had also been made in the records of Cowlitz
County, which was the proper office, the Land Department informed
the register and receiver of the land office at Vancouver,
Washington, that action had been suspended upon the entries, based
upon the report of the special agent regarding the lands, and the
Department directed the register and receiver to give notice to the
original entrymen of a time and place when and where they
Page 189 U. S. 348
might be heard, and, in default, that their entry would be
cancelled. The Department also stated that it appeared from the
report of its special agent that the lands had been transferred by
warranty deed of March 13, 1884, to the defendant, and it therefore
directed that notice should be given him as the transferee; but for
some reason, this direction was overlooked, and no notice was ever
given defendant of the pendency of any proceedings towards the
cancellation of the certificates or either of them which had been
transferred to him.
At the time he purchased the certificates, the defendant resided
in Alpena, Michigan, and resided there for thirty years, and the
deeds to defendant, which were on record, showed his residence to
be in that place.
The notices by mail to the entrymen were not received, the
letters to them being returned as "uncalled for," and so it
happened that there was no hearing before the Land Department upon
the return of the order, and the entry was cancelled in the absence
of both of the entrymen and the defendant, the transferee.
The action of the Department was taken upon the report of one of
its inspectors, which was founded, as stated in the report of such
inspector, upon the fact that the land was not of the character
provided for in the act, for the reason that, although covered by a
heavy growth of valuable timber and chiefly valuable as such at
that time, yet, as it would be fit for cultivation when the timber
should be removed, it was on that ground held that the land was not
subject to entry under the timber act of 1878,
supra. This
was the sole and only reason upon which the Land Department rested
its action in cancelling the entries and certificates.
After their cancellation, certain homestead entries were made
upon these two quarter sections by Benjamin L. Hennis for the
northeast quarter, and by Ellis Walker for the southeast quarter,
patents were issued to them, and the plaintiffs deraign title from
those patentees.
Upon the trial, evidence was given by the defendant as to the
character of his ownership; that he purchased the different quarter
sections in good faith from each of the parties who
Page 189 U. S. 349
had entered them, and without any agreement in reference to the
purchase before final proof, etc., and that he had never heard of
the entrymen before he made the purchase from them through his
agent, and paid them the sum of $800 for each quarter section
(double the price paid for the land by the entrymen to the
government), and that the total cost of the land, including his
expenses paid to his agent and to the parties who made the
locations, etc., amounted, as the defendant testified, to about
$4,400.
The defendant on the trial also gave evidence tending to show
that the land in question had the finest quality of timber on it,
and that, in its then existing condition, the land was chiefly
valuable for timber and would probably run 200,000 feet to the
acre. The land would have to be cleared and then it might be
cultivated, but it would all have to be cleared first.
It was stipulated between the parties, on the trial, that
certain papers named and on file in the office of the Commissioner
of the General Land Office, and certain exhibits from the land
office in Vancouver, in the State of Washington, relating to the
proceedings in making the entry for the lands in question by the
defendant's grantors, might be regarded as in evidence in the case
and be considered by the court, and the copies of such papers then
presented to the court were admitted to be
"correct, full, true, and complete transcripts of all
proceedings of the land office at Vancouver, Washington, and of the
General Land Office, Department of the Interior, Washington, D.C.,
touching . . . the timber land entry of Frank Smith, for the
northeast quarter of section 32 [etc.], and also the timber land
entry for the southeast quarter of section 32,"
etc. These papers showed that the entrymen for the northeast and
the southeast quarters were entitled to enter the lands under the
timber act, and that all the necessary facts required by the act
and the Land Department officials had been proved by them to
entitle them to enter the specific lands.
The finding of the court shows there has never been any dispute
as to the actual condition of the land, but the entries were
vacated and the certificates cancelled because the Land Department
held the land was not of the kind to be entered under
Page 189 U. S. 350
the timber act of 1878, for the reason that, after the timber
should be cleared, the land would be good agricultural land.
MR. JUSTICE PECKHAM, after making the foregoing statement of
facts, delivered the opinion of the Court.
The decision of the Land Department as to the character of the
land in question resulted from an erroneous construction of the
Timber Act of June 3, 1878. There was no dispute as to the actual
condition of the land, but the Department held that land so
situated could not be entered under the Timber Act. In this
construction, the Department made a legal error. It has been held
by this Court that the act included lands covered with timber, but
which might be made fit for cultivation by removing the timber and
working the land.
United States v. Budd, 144 U.
S. 154. MR. JUSTICE BREWER, in delivering the opinion of
the Court in the above case, states as follows:
"Lands are not excluded by the scope of the act because in the
future, by large expenditures of money and labor, they may be
rendered suitable for cultivation. It is enough that, at the time
of the purchase, they are not, in their then condition, fit
therefor. The statute does not refer to the probabilities of the
future, but to the facts of the present. Many rocky hill slopes or
stony fields in New England have been, by patient years of
gathering up and removing the stones, made fair farming land; but
surely no one, before the commencement of these labors, would have
called them fit for cultivation. We do not mean that the mere
existence of timber on land brings it within the scope of the act.
The significant word in the statute is 'chiefly.' Trees growing on
a tract may be so few in number or so small in size as to be easily
cleared off, or not seriously to affect its present and general
fitness for
Page 189 U. S. 351
cultivation. So, on the other hand, where a tract is mainly
covered with a dense forest, there may be small openings scattered
through it susceptible of cultivation. The chief value of the land
must be its timber, and that timber must be so extensive and so
dense as to render the tract as a whole, in its present state,
substantially unfit for cultivation."
The lands in this case are within that description. The evidence
shows that the timber was excellent -- as good as any in that
section of the country. It was as good as any ever examined by the
witness, who had had large experience. In fact, he said there was
none better in that part of the country, and the quality of the
timber was large to that acre, but the land was not especially
valuable for cultivation until it had been cleared.
Even though the decision of the Land Department was erroneous,
yet, having been made, and the entries and certificates cancelled,
although without notice to defendant, they could not thereafter be
used even as
prima facie evidence of the validity of the
original entries. It was perfectly easy to have given defendant
notice of the proposed cancellation. He resided in Alpena,
Michigan, and the deeds showed that fact, and the record shows the
Department was aware of their existence through the report of its
special inspector. There is no hardship or inconvenience,
therefore, in holding that, in a case at least, where the residence
is known, the transferee has the right to notice. If not known, a
publication of notice ought at least to be made. It seems this is
the practice of the Land Department.
It has been held in this Court, in
Guaranty Savings Bank v.
Bladow, 176 U. S. 448, and
Hawley v. Diller, 178 U. S. 476,
178 U. S. 488,
that a cancellation of a certificate of entry was not conclusive as
against a transferee who had no notice and no opportunity to be
heard upon the question of the original validity of the entry, but
that it left the transferee without the right to use the entry
certificate as
prima facie evidence of the validity of the
entry or of his subsequent claim. The transferee is, however, left
free to prove the validity of the entry by any means other than the
certificate. Although the assignment or conveyance of the
certificates did not transfer the legal title to the
Page 189 U. S. 352
lands described therein, yet the transferee or grantee thereby
became possessed of an equitable interest in the lands which could
not be taken from him without some notice. The character of the
certificates as a mere means of evidence could be, and was,
destroyed; but the transferee was nevertheless not thereby deprived
of his right to show the validity of the former entry.
In this case, we think he had done so. He proved by his own
evidence that he was a
bona fide purchaser of the property
for value paid to the entrymen and that he had no agreement or
understanding of any kind with them prior to the time that he
purchased the land from them.
We do not refer to the
bona fide character of the
purchase by defendant from the entrymen for the purpose of thereby
showing the defendant to be entitled to the benefit of that
character under section 2 of the Timber Act of 1878. The reason
that he is not so entitled is that, by the assignment of the
certificates, he did not become clothed with the strict legal title
to the land, but simply with an equity, and the act does not cover
such a case.
Hawley v. Diller, 178 U.
S. 476,
178 U. S. 487.
We refer to the
bona fide character of the purchase by
defendant for the purpose only of showing it was without any prior
agreement or understanding with the entrymen, and was not in
violation of the provisions of the Timber Act.
The stipulation between counsel that the papers on file in the
Land Department might be regarded as in evidence and considered by
the court permitted the court to regard those papers as properly
introduced in evidence and competent to be considered by it in the
further consideration of the case. Those papers show a compliance
on the part of the entrymen with all the provisions of the Timber
Act and a valid entry under it in regard to the lands in question.
As the entries had not been cancelled for any fraud in fact, but
only upon an erroneous interpretation of the law by the Department,
the evidence of such error being apparent on the trial, the
defendant did all he was required to do in order to show the
entries valid, and if the plaintiffs wished to show any fraud in
fact to overcome the case made by the defendant, they were called
upon to do so;
Page 189 U. S. 353
otherwise, the original proof being sufficient to warrant the
issuing of the certificates, that proof would be regarded as
sufficient on the trial of this suit.
There is not a word of any proof showing any fraudulent act on
the part of the entrymen or of their transferee, the defendant
herein, and, on the contrary, there is proof of an absence of any
fraud and the
bona fide purpose on the part of the
entrymen to properly avail themselves of the act of 1878.
But, however this may be, we are precluded by the finding of
facts in the state court from looking at the evidence upon which
such findings may rest. Upon a writ of error to a state court, this
Court has no right to review its decision upon the ground that the
finding was against evidence or the weight of evidence.
Egan v.
Hart, 165 U. S. 188;
Gardner v. Bonestell, 180 U. S. 362,
180 U. S. 370;
Bement v. National Harrow Company, 186 U. S.
70;
Jenkins v. Neff, 186 U.
S. 230,
186 U. S.
235.
By the findings in this case, it appears that the entrymen, at
the time of making their entries ,were entitled to purchase the
lands under the act of Congress of 1878, and that they duly made
such application, duly verified by the oath of the applicants
before the register of the land office, and that in the purchase of
the land they fully complied with the laws of the United States and
the rules and regulations of the Land Department, and that all the
requirements of the Timber and Stone Act in regard to making a
legal and valid entry and purchase thereunder were fully complied
with by the entrymen, and that thereafter the applications were
allowed and certificates duly issued as applied for, and the lands
included in the entries were at all times chiefly valuable for the
timber thereon, and at that time unfit for cultivation. It was also
found that the action of the land office in cancelling the timber
entries was based upon a misconstruction of the act of 1878, and
that the department, by reason of such misconstruction, erroneously
held that land covered with a heavy growth of valuable timber, if
it could be successfully cultivated after the timber was removed,
was not subject to entry as timber land under that act, although
the timber on the land might be itself the chief element of the
value
Page 189 U. S. 354
of the land, and the land could not be cultivated at all in its
then condition.
Upon these findings, it is apparent that the defendants showed
the validity of the entries by his grantors, and that their
conveyances to him passed a good equitable title to the lands in
question for which he was entitled to a patent from the United
States, and that, as such patent was granted to appellants, the
defendant was entitled to the relief given him by the judgment.
The judgment of the Supreme Court of the State of Washington is
therefore
Affirmed.
