Unless an intent to the contrary is clearly manifest by its
terms, a statute providing generally for the disposal of public
lands is inapplicable to lands taken possession of and occupied by
the government for a special purpose.
A prior appropriation is always presumed to except land from the
scope of a subsequent grant, although no reference may be made in
the latter to the former.
The establishment of a military post under proper orders on
public lands amounts to an appropriation of the land for military
purposes, and withdraws the property occupied from the effect of
general laws subsequently passed for the disposal of public lands,
and no right of an individual settler attaches to or hangs over the
land to interfere with the action of the government in regard
thereto.
One who wrongfully settled on public land and was dispossessed
by proper authority so that the land might be used for a military
post acquired by such settlement no priority of right in the matter
of purchase or homestead entry when the post was abandoned and the
land opened to private purchase.
On December 31, 1900, the plaintiffs, who are now appellants,
filed their bill of complaint in the Circuit Court of the
Page 196 U. S. 101
United States for the Southern District of Florida, praying a
decree that the defendants, holding the legal title to a tract of
land under patent from the United States, be decreed to hold that
title in trust for them. A demurrer to the bill was sustained, and
a decree of dismissal entered. This was affirmed by the Circuit
Court of Appeals for the Fifth Circuit, and from that affirmance
this appeal was taken.
The averments in the bill are: the plaintiffs are the sole
descendants and heirs at law of Robert J. Hackley, who died in
1845. In November, 1823, Hackley, then over twenty-one years of
age, and the head of a family, settled upon and cultivated the
tract in controversy. At that time, the surrounding country was a
dense wilderness, and he the only settler. He erected on the tract
a substantial dwelling and other buildings. In 1824, Colonel
Brooke, with a detachment of United States troops, was sent to this
portion of Florida, located a camp or cantonment on this tract,
dispossessed Hackley, and took possession of the house and land so
occupied and cultivated by him. The Secretary of the Interior, in
the contest proceedings hereinafter referred to, in an opinion
which is attached to the bill as an exhibit, found that this action
was taken by order of the War Department. United States troops
continued to occupy the camp or cantonment until December 10, 1830,
when, by an executive order of the President, the Fort Brooke
Military Reservation was established, containing sixteen square
miles of land and embracing the tract in controversy. Thereafter
this military reservation was reduced from time to time by
executive orders, until on June 1, 1878, only the tract in
controversy, commonly known as the "Reduced Fort Brooke Military
Reservation," remained. On January 4, 1883, it was relinquished,
and transferred by the Secretary of War to the Interior Department.
Hackley, after his removal from the tract, remained a resident of
Florida up to the time of his death. On March 3, 1823, Congress
passed an act authorizing the President to establish a land office
in each of the districts of east and west Florida as soon as in
his
Page 196 U. S. 102
opinion there was a sufficient quantity of public land surveyed
to justify it. Under this act, and by an executive order in 1828, a
land office was established at St. Augustine, in the district in
which this land was situate. At the time this office was
established, the hostility of the Indian tribes was such as to
render communication between it and that portion of Florida where
Hackley resided practically impossible. But in the year 1835,
although the public surveys had not been extended into this part of
Florida, Hackley filed with the register of the land office
evidence designating the particular tract which had been settled
upon, inhabited, and cultivated by him as aforesaid, and claimed
the right of preemption and purchase thereof under and by virtue of
the act of Congress of April 22, 1826. By change of the boundary
lines of the land districts of Florida, the land subsequently came
within the jurisdiction of the land office at Newnansville,
Florida, whereupon, on November 27, 1843, Hackley secured from the
register of the land office at St. Augustine a copy of the evidence
formerly filed in that office, and filed it with a notice of his
claim with the register of the office at Newnansville. On September
26, 1887, the administrator of the estate of Hackley filed in the
local land office a supplemental notice of the claim of the legal
representatives of Hackley to the right of preemption in the
purchase of the tract. Other parties made application to the Land
Department for an entry of said lands, contest proceedings were
had, which were terminated by a decision of the Secretary of the
Interior adverse to the claim of the plaintiffs, and a patent was
issued to Edmund S. Carew, under whom the defendants claim.
The following statutes are relied upon by the parties: Act of
Congress, March 3, 1807, 2 Stat. 445, section 1 of which
provides:
"That, if any person or persons shall, after the passing of this
act, take possession of, or make a settlement on, any lands ceded
or secured to the United States, by any treaty made with a foreign
nation, or by a cession from any state to the
Page 196 U. S. 103
United States, which lands shall not have been previously sold,
ceded, or leased by the United States, or the claim to which lands,
by such person or persons, shall not have been previously
recognized and confirmed by the United States; or if any person or
persons shall cause such lands to be thus occupied, taken
possession of, or settled, or shall survey, or attempt to survey,
or cause to be surveyed any such lands, or designate any boundaries
thereon by marking trees or otherwise, until thereto duly
authorized by law -- such offender or offenders shall forfeit all
his or their right, title, and claim, if any he hath, or they have,
of whatsoever nature or kind the same shall or may be, to the lands
aforesaid, which he or they shall have taken possession of, or
settled, or cause to be occupied, taken possession of, or settled,
or which he or they shall have surveyed, or attempted to survey, or
cause to be surveyed, or the boundaries thereof he or they shall
have designated, or cause to be designated, by marking trees or
otherwise. And it shall, moreover, be lawful for the President of
the United States to direct the marshal, or officer acting as
marshal, in the manner hereinafter directed, and also to take such
other measures, and to employ such military force, as he may judge
necessary and proper, to remove from lands ceded or secured to the
United States by treaty or cession as aforesaid, any person or
persons who shall hereafter take possession of the same, or make,
or attempt to make, a settlement thereon, until thereunto
authorized by law. And every right, title, or claim, forfeited
under this act, shall be taken and deemed to be vested in the
United States, without any other or further proceedings."
The other sections have no application to this case.
On February 5, 1813, 2 Stat. 797, the following act was
passed:
"That every person, or legal representative of every person, who
has actually inhabited and cultivated a tract of land lying in
either of the districts established for the sale of public lands,
in the Illinois Territory, which tract is not rightfully
claimed
Page 196 U. S. 104
by any other person, and who shall not have removed from said
territory, every such person and his legal representatives shall be
entitled to a preference in becoming the purchaser from the United
States of such tract of land at private sale at the same price and
on the same terms and conditions in every respect as are or may be
provided by law for the sale of other lands sold at private sale in
said territory at the time of making such purchase:
Provided, That no more than one-quarter section of land
shall be sold to any one individual in virtue of this act, and the
same shall be bounded by the sectional and divisional lines run, or
to be run, under the direction of the surveyor general for the
division of the public lands:
Provided also, That no lands
reserved from sale by former acts, or lands which have been
directed to be sold in town lots, and out lots, shall be sold under
this act."
"SEC. 2.
And be it further enacted that every person
claiming a preference in becoming the purchaser of a tract of land
in virtue of this act shall make known his claim by delivering a
notice in writing to the register of the land office for the
district in which the land may lie wherein he shall particularly
designate the quarter section he claims, which notice the register
shall file in his office, on receiving twenty-five cents from the
person delivering the same. And in every case where it shall appear
to the satisfaction of the register and receiver of public moneys
of the land office that any person who has delivered his notice of
claim is entitled, according to the provisions of this act, to a
preference in becoming the purchaser of a quarter section of land,
such person so entitled shall have a right to enter the same with
the register of the land office, on producing his receipt from the
receiver of public moneys for at least one-twentieth part of the
purchase money, as in case of other public lands sold at private
sale:
Provided, That all lands to be sold under this act
shall be entered with the register at least two weeks before the
time of the commencement of the public sales, in the district
wherein the land lies, and every person having a right of
preference in becoming the
Page 196 U. S. 105
purchaser of a tract of land, who shall fail so to make his
entry with the register within the time prescribed, his right shall
be forfeited, and the land by him claimed shall be offered at
public sale, with the other public lands in the district to which
it belongs."
And on April 22, 1826, 4 Stat. 154, Congress passed another act,
the first section of which reads as follows:
"That every person, or the legal representatives of any person,
who, being either the head of a family, or twenty-one years of age,
did on or before the first day of January, in the year one thousand
eight hundred and twenty-five, actually inhabit and cultivate a
tract of land situated in the Territory of Florida, which tract is
not rightfully claimed by any other person, and who shall not have
removed from the said territory, shall be entitled to the right of
preemption in the purchase thereof under the same terms,
restrictions, conditions, provisions, and regulations, in every
respect, as are directed by the act entitled 'An Act Giving the
Right of Preemption, in the Purchase of Lands, to Certain Settlers
in the Illinois Territory,' passed February the fifth, one thousand
eight hundred and thirteen:
Provided, That no person shall
be entitled to the provisions of this section who claims any tract
of land in said territory by virtue of a confirmation of the
commissioners or by virtue of any act of Congress. "
Page 196 U. S. 108
MR. JUSTICE BREWER delivered the opinion of the Court.
The vital question in this case is whether Hackley could claim
the benefit of the act of 1826 in reference to the tract in
Page 196 U. S. 109
controversy. Prior to that act, he was wrongfully in possession
of the tract, and could have been summarily removed by order of the
President. Act of March 3, 1807. His dispossession was by authority
of law. It was done in the exercise of the power vested in the
President as Commander-in-Chief of the Army, the order of the War
Department being presumed to be that of the President. The
occupation of the tract by the United States troops was rightful,
being an occupation of property of the government by direction of
the proper officer, and that rightful occupation continued until
the act was passed. It is unnecessary to rest the case upon the
clause in the act of 1826, "which tract is not rightfully claimed
by any other person," although that is not without significance, or
to discuss the question whether the United States can be considered
another person. A more substantial reason is to be found in the
rule that, whenever a statute is passed containing a general
provision for the disposal of public lands, it is, unless an intent
to the contrary is clearly manifest by its terms, to be held
inapplicable to lands which for some special public purpose have
been in accordance with law taken full possession of by and are in
the actual occupation of the government. Where particular tracts
have been taken possession of by rightful orders of an executive
department, to be used for some public purpose, Congress, in
legislating, will be presumed to have intended no interference with
such possession nor a sale or disposal of the property to private
individuals. Such has been the rule obtaining in the Land
Department, as well as in the courts. An early case was
Wilcox v.
Jackson, 13 Pet. 498. That case rested upon a claim
of right of preemption under the Act of June 19, 1834, 4 Stat. 678,
which revived an act passed May 29, 1830, 4 Stat. 420, containing
these provisions:
"That no entry or sale of any land shall be made under the
provisions of this act which shall have been reserved for the use
of the United States or either of the several states in which any
of the public lands may be situated,"
or
"which is reserved from sale by act of Congress, or by order of
the President, or
Page 196 U. S. 110
which may have been appropriated for any purpose
whatsoever."
It appeared that, at the request of the Secretary of War, the
Commissioner of the General Land Office had marked upon the
official map of that Department the tract in controversy as
reserved for military purposes, and directed it to be withheld from
sale. The Court held that this action was that of the President,
saying (p.
38 U. S.
513):
"Now, although the immediate agent in requiring this reservation
was the Secretary of War, yet we feel justified in presuming that
it was done by the approbation and direction of the President. The
President speaks and acts through the heads of the several
departments in relation to subjects which appertain to their
respective duties. Both military posts and Indian affairs,
including agencies, belong to the War Department. Hence we consider
the act of the War Department in requiring this reservation to be
made as being in legal contemplation the act of the President, and
consequently that the reservation thus made was in legal effect a
reservation made by order of the President within the terms of the
act of Congress."
And, going beyond the special language of the act in respect to
the sale of lands, the Court observed:
"But we go further and say that whensoever a tract of land shall
have once been legally appropriated to any purpose, from that
moment the land thus appropriated becomes severed from the mass of
public lands, and that no subsequent law or proclamation or sale
would be construed to embrace it or to operate upon it, although no
reservation were made of it."
"The very act which we are now considering will furnish an
illustration of this proposition. Thus, in that act there is
expressly reserved from sale the land within that district which
had been granted to individuals and the State of Illinois. Now
suppose this reservation had not been made, either in the law,
proclamation, or sale, could it be conceived that, if that land
were sold at auction, the title of the purchaser would
Page 196 U. S. 111
avail against the individuals or state to whom the previous
grants had been made? If, as we suppose, this question must be
answered in the negative, the same principle will apply to any land
which by authority of law shall have been severed from the general
mass."
In
Leavenworth &c. R. Company v. United States,
92 U. S. 733,
92 U. S. 745,
the doctrine announced in
Wilcox v. Jackson, supra, was
reaffirmed; the Court, quoting the first paragraph in the last
quotation, added:
"It may be urged that it was not necessary in deciding that case
to pass upon the question; but, however this may be, the principle
asserted is sound and reasonable, and we accept it as a rule of
construction."
In that case it was held that a grant of public lands in aid of
a railroad did not apply to lands included within an Indian
reservation, and that it was immaterial that the reservation was
afterwards set aside, and the lands had become a part of the public
lands of the nation.
Newhall v. Sanger, 92 U. S.
761, ruled that lands within the boundaries of an
alleged Mexican or Spanish grant which was
sub judice at
the time the Secretary of the Interior ordered a withdrawal of
lands along the route of the road, were not embraced by a grant to
a railroad company, and it was said in the opinion (p.
92 U. S. 763):
"The words
public lands' are habitually used in our legislation
to describe such as are subject to sale or other disposal under
general laws."
In
Shively v. Bowlby, 152 U. S. 1, it was
held that, while Congress has power to grant lands below high water
mark in navigable waters, yet the fact that the public surveys are
made to terminate on the banks or shores of those waters indicates
that such lands are not subject to entry and sale under the general
land laws, but, so far as they are situated in a territory, are
reserved for the use and control of the future state. This doctrine
was reaffirmed in
Mann v. Tacoma Land Company,
153 U. S. 273.
Many authorities might be cited to the proposition that prior
appropriation is always understood to except lands from the scope
of a subsequent grant although no reference
Page 196 U. S. 112
is made in the latter to the former.
See Lake Superior
&c. Company v. Cunningham, 155 U.
S. 354,
155 U. S.
373.
There is nothing in
United States v.
Fitzgerald, 15 Pet. 407, to conflict with the
foregoing views. It merely decided that an officer of the United
States (in that case, an inspector of customs) was not deprived by
any act of Congress of the benefit of the preemption laws, and the
fact that he was put in possession of a tract of land by the
collector of customs, who had received no instructions to that
effect from the Treasury Department, was not an appropriation to
the uses of the government. It is true, a letter from the Acting
Commissioner of the General Land Office to the register at New
Orleans stating that the Secretary of the Treasury had directed
that the tract be reserved from sale for the use of the custom
house at New Orleans and requesting the register to note upon his
plats that it was so reserved from sale was in evidence, but this
was written two years after the inspector had entered and paid for
the land. Of course, such attempted reservation could have no
effect upon a title acquired by the entryman prior thereto. Nor is
there any conflict in
United States v. Tichenor, 12 F.
415. There, it appeared that the commanding officer of United
States troops in Oregon ordered that a military reservation be
established on the tract in controversy. In obedience thereto, a
lieutenant erected some buildings thereon for the use of the
soldiers. It was held by the circuit court that such action
constituted no appropriation of the land so as to exempt it from
the operation of the general land laws. But the ground of the
decision was that the general commanding was acting without any
direction from the President or the War Department, the court
saying (p. 423):
"It may be admitted, as suggested in
Wilcox v.
Jackson, 13 Pet. 513, that, if the order directing
the reservation to be made had been issued by the Secretary of War
-- the head of the department through whom the President would
speak and act upon the subject -- in the absence of evidence to the
contrary, it would be presumed that he acted by the direction
Page 196 U. S. 113
of the President. But neither General Hitchcock nor Lieutenant
Wyman had any authority to designate or establish a reservation at
Port Orford for any purpose. It is not alleged that they were
acting in the premises under the authority of the President, and
there is no presumption of law that they were."
Again, it is urged that the establishment of this camp or
cantonment was a mere temporary matter, and not to be considered as
in the nature of a reservation or appropriation, and we are
referred to orders and other papers found in the records of the War
Department, copies of which appear in the brief of appellants'
counsel. Those orders, if we are permitted to consider them on this
demurrer, make distinctly against the contentions of counsel. We
quote from that issued from the Adjutant General's office:
"Order 70."
"Brevet Col. Brooke, with four companies of the Fourth Infantry,
will proceed with as little delay as practicable to Tampa Bay, east
Florida, where he will establish a military post. He will select a
position with a view to the health and in reference to the Florida
Indians about to be removed to that vicinity agreeable to the late
treaty. Upon this point he will consult Col. Gadsden, the
commissioner employed in locating the Indians. . . ."
"The permanent headquarters of the Fourth Infantry will remain
at Cantonment Clinch, and, should Col. Clinch have rejoined his
regiment, on the receipt of this order, he will be charged with the
duty of preparing Col. Brooke's command for the expedition to
Tampa."
"By order of Major Gen. Brown."
"E. Kirby,
Aide-de-Camp"
It will be seen that the direction is to "establish a military
post." It was for this "post" that the tract in controversy was
taken, and the statement in the report of Colonel Brooke, as one of
the reasons for its selection, that, some two miles in
Page 196 U. S. 114
the rear of the place, a ridge of piney lands commences, to
which the troops could retire with their tents on the slightest
manifestation of disease, does not alter the fact that this tract
was selected for the "post." The further fact that permanent
headquarters of the Fourth Infantry were to remain at Cantonment
Clinch is entirely consistent with the direction to Colonel Brooke
to proceed with four companies to Tampa Bay and there establish
this military post. The judgment of the War Department, whose
action is presumed to be the action of the President, was that,
having reference to the Florida Indians who were about to be
removed to that vicinity, it was important to have a military post
established. Its permanence would depend largely on the
developments of the future. It remained a military post for half a
century, and a very large tract was, in 1830, set apart for a
surrounding reservation. True, it has since been all abandoned,
but, although it may have been within the contemplation of the
authorities that a time would come when the necessity for this
military post would cease, it was nonetheless for the time being a
post established by the proper department of the government. It
was, until the post was abandoned, an appropriation of the land for
military purposes. Quite a number of reservations and posts in our
western territory, once established, have afterwards been
abandoned; but, while so appropriated they are excepted from the
operation of the public land laws, and no right of an individual
settler attaches to or hangs over the land to interfere with such
action as the government may thereafter see fit to take in respect
to it. No cloud can be cast upon the title of the government --
nothing done by an individual to embarrass it in the future
disposition of the land.
Without considering, therefore, the question of laches or
limitation, we are of opinion that the decision of the court of
appeals was correct, and it is
Affirmed.
