A homesteader who initiates a right to either surveyed or
unsurveyed land and complies with the legal requirements may, when
he enters the land, embrace in his claim land in contiguous
quarter-sections if he does not exceed the quantity allowed by law
and provided that his improvements are upon some portion of the
tract, and that he does such acts as put the public upon notice as
to the extent of his claim.
Ferguson v. McLaughlin,
96 U. S. 174,
distinguished.
Under the Land Grant Act of August 5, 1892, 27 Stat. 390, c.
382, the right of the railway company to select indemnity lands,
nonmineral and not reserved and to which no adverse right or claim
had attached or been initiated, does not include land which had
been entered in good faith by a homesteader at the time of the
supplementary selection, and, on a relinquishment's
Page 210 U. S. 22
being properly filed by the homesteader, the land becomes open
to settlement, and the railway company is not entitled to the land
under a selection filed prior to such relinquishment.
101 Minn. 239 affirmed.
The facts arc stated in the opinion.
Page 210 U. S. 24
MR. JUSTICE WHITE delivered the opinion of the Court.
Jerry Hickey, having the legal qualifications, in March,
1893,
Page 210 U. S. 25
settled upon unsurveyed public land of the United States
situated in the Duluth Land District, Minnesota. The land was
within the territory in which plaintiff in error, hereafter called
the railway company, was entitled to make indemnity selections.
This right, however, was limited to land as to which, at the time,
"no right or claim had attached or been initiated" in favor of
another. Act of August 5, 1892, 27 Stat. 390, c. 382. In the Land
Office of the district aforesaid, two years and eight months after
the settlement by Hickey -- that is, in December, 1895 -- the
railway company made indemnity selections embracing not only the
land upon which Hickey had built his residence, but all the
unsurveyed land contiguous thereto which under any contingency
could have been acquired by Hickey in virtue of his settlement.
Seven months after -- on July 22, 1896 -- the official plat or
survey of the township in which the lands were situated was filed.
On that day, Hickey made application to enter the tract under the
homestead laws. This application embraced five contiguous lots,
located, however, in different quarter-sections --
viz.,
one lot (No. 12) in § 3, and four lots (Nos. 9, 10, 14, and 15) in
§ 4. The whole five lots contained in all about 160 acres, because
lots 14 and 15 were fractional. The improvements made by Hickey
were on lot 15.
On the day Hickey filed his application, the railway company
presented a supplementary list of its selections, conforming them
to the survey of the township. Because of the conflict between the
claim of Hickey and that of the railway company, a contest ensued.
It is unnecessary to recite the vicissitudes of the controversy,
the death of Hickey pending the contest, the substitution of his
mother as his sole heir, and the proceedings by which the claim of
the railway company came to be limited to the lots outside of the
fractional quarter-section on which the improvements of Hickey had
been made. Suffice it to say that ultimately the Secretary of the
Interior decided in favor of the Hickey claim. It was held that the
effect of the settlement was to initiate a homestead right as to
all the
Page 210 U. S. 26
land claimed in the application to enter, and therefore, under
the terms of its grant, the railway company was precluded from
making a selection of the lands in dispute. In reaching this
conclusion, the Secretary found as a fact that, in making his
homestead settlement, Hickey had plainly manifested his intention
to embrace within his homestead the land which he subsequently
sought to enter in such manner as to cause it to be well known to
all in the community, as early as 1893, the year of the settlement,
what were the boundaries of the tract for which he intended to
obtain a patent. 32 L.D. 8. In consequence of this final decision,
the mother of Hickey made a homestead entry for the five lots.
Subsequently, in the Cass Lake Land District, Minnesota, to which
the land had been transferred, the mother of Hickey filed in the
local Land Office a relinquishment of her claim to the entire
tract. Simultaneously, Donohue, the defendant in error, filed an
application to enter the land under the Timber and Stone Act, and
his claim was allowed. The railway company, however, contested as
to the lots other than 14 and 15 in section 4 on the ground that
the effect of the relinquishment by the heir of Hickey was to cause
the selections which had formerly been rejected to become operative
as against the entry of Donohue as to the land outside of the
quarter-section on which the improvements of Hickey had been
constructed. The contest thus created was finally decided by the
Secretary of the Interior in favor of the railway company, and a
patent issued to it for the lots in dispute. This proceeding was
then commenced in the courts of Minnesota by Donohue to hold the
railway company liable as his trustee, upon the ground of error in
law committed by the Secretary of the Interior in refusing to
sustain his entry. The court below decided in favor of Donohue. 101
Minn. 239. Upon this writ of error, the correctness of its action
is the question for decision.
The errors assigned and the arguments at bar rest upon two
contentions: first, that the original decision of the Secretary of
the Interior in favor of the Hickey homestead entry was
Page 210 U. S. 27
wrong as a matter of law because Hickey, by his settlement, had
power to initiate a claim to land only in the fractional
quarter-section within which his improvements had been placed, and
therefore that all the other lands outside of such quarter-section,
although embraced in the application for entry, were subject to
selection by the railway company because unappropriated public land
of the United States against which no claim had been initiated.
Second. Because, even if the decision of the Land Department in
favor of the Hickey application was not erroneous as a matter of
law, the court below erred in not giving effect to the ruling of
the Department in favor of the railroad company and against the
Donohue entry.
To dispose of the first contention requires us to take into view
the legislation concerning the right to acquire public lands by
preemptors and homesteaders.
The Act of September 4, 1841, 5 Stat. 455, c. 25, together with
the supplemental Act of March 3, 1843, 5 Stat. 619, c. 85,
superseded all earlier statutes, and were the basis of the
preemption laws in force on the repeal of those laws in 1891. The
Act of September 4, 1841, was entitled "An act to Appropriate the
Proceeds of the Sales of the Public Lands, and to Grant Preemption
Rights," and §§ 10 to 15 dealt with the subject of preemption. By §
10, it was provided that one who possessed certain qualifications
and made settlement in person upon surveyed public lands subject to
be so settled, and who should inhabit and improve the same, and who
had or should erect a dwelling thereon, might enter with the
register of the Land Office for the district in which such land
might lie,
"by legal subdivisions, any number of acres, not exceeding one
hundred and sixty, or a quarter-section of land, to include the
residence of such claimant, upon paying to the United States the
minimum price of such land. . . ."
This provision of the statute of 1841 was substantially
reenacted in § 2259 of the Revised Statutes. Under the law of 1841,
claims to public land might be initiated, prior to record notice,
by settlement upon surveyed land subject to private entry, thirty
days being allowed the settler within which to
Page 210 U. S. 28
file his declaratory statement with the register of the proper
district. Act Sept. 4, 1841, c. 16, § 16, 5 Stat. 457, Rev.Stat. §
2264. Subsequently, where the land settled upon had not been
proclaimed for sale, the settler was allowed three months in which
to file his claim. Act March 3, 1843, c. 86, § 5, 5 Stat. 620,
Rev.Stat. 2265.
It was not, however, until 1862, that preemptions were allowed,
under proper restrictions, on the unsurveyed public lands
generally. Act of June 2, 1862. 12 Stat. 418. By § 7 of that act,
the settler on unsurveyed lands was not required to make his
declaratory statement until three months from the date of the
receipt at the district Land Office of the approved plat of the
township embracing his preemption settlement.
From the beginning, the Land Department has construed the
preemption laws as conferring an alternative right either to select
a regular quarter-section of 160 acres or the same quantity of land
embraced in two or more contiguous legal subdivisions, although in
different quarter-sections.
See circular of September 15,
1841 (1 Lester, Land Laws, p. 362). The practice of the Land Office
is illustrated in a case passed upon by the Attorney General in
1871. Copp, Land Laws, p. 309. One Shaw filed a declaratory
statement embracing tracts situated not alone in different
quarter-sections, but in different townships, and aggregating more
than 195 acres. From a ruling of the Commissioner requiring the
preemptor to select which of the legal subdivisions he would omit
from his entry so as to include his principal improvements,
preserve the contiguity of the land remaining, and approximate to
160 acres, Shaw appealed, and the Secretary of the Interior
requested the advice of the Attorney General. In recommending that
the decision of the Commissioner be affirmed, after calling
attention to the fact that the technical quarter-section, through
the unavoidable inaccuracy of surveys in adjusting meridians, etc.,
often exceeded or fell below 160 acres, it was said:
"The preemption settler has the right, under the act of 1841, to
enter either 160 acres in legal subdivisions
Page 210 U. S. 29
lying contiguous to each other without reference to the
quarter-section lines, or he has the right to enter a
quarter-section as such, in which case he can take the amount of
land contained therein as shown by the official survey. In entering
a 'quarter-section,' he cannot, of course, depart from the
ascertained lines, but must take 160 acres or less, as the case may
be."
"In the case under consideration, Shaw claims by legal
subdivision, but not according to the lines of a quarter-section.
Part of the land is in one township, in sec. 2, and part in another
township, in sec. 35. He should be allowed to enter any number of
the legal subdivisions contiguous to each other and including his
dwelling so that the whole shall not in amount exceed 160 acres,
but he cannot, under the act, take more than that amount, because
the land claimed does not constitute what is legally known as a
'quarter-section.'"
On May 15, 1874, the right of a qualified preemptor to locate a
preemption claim upon land lying in two adjoining townships was
expressly recognized in Preemption Claim of William McHenry, Copp,
Land Laws, p. 295. And these principles, as will hereafter be seen,
governed equally as to settlements on unsurveyed as on surveyed
land.
The homestead law was enacted on May 20, 1862. 12 Stat. 392, c.
75. By that act, differing from the preemption law, the rights of
the settler only attached to the land from the date of the entry in
the proper Land Office.
Maddox v. Burnham, 156 U.
S. 544,
156 U. S. 546.
The text of that act, afterwards embodied in Rev.Stat. §§ 2289
et seq., makes it obvious that it was contemplated that,
as under the settled rule applied in the enforcement of the
preemption laws, the homesteader was not to be confined to a
particular regular quarter-section tract in order that he might
receive 160 acres, but was authorized to make up the allotted
quantity by joining contiguous legal subdivisions.
This is further illustrated by the text of § 2306, Rev.Stat.,
which provides that every person entitled to enter a soldier's and
sailor's homestead, who had previously entered, under the
Page 210 U. S. 30
homestead laws, a quantity of land less than one hundred sixty
acres, was authorized "to enter so much land as, when added to the
quantity previously entered, should not exceed one hundred sixty
acres."
It was not until May 14, 1880 (c. 89, 21 Stat. 141), that a
homestead entry was permitted to be made upon unsurveyed public
land. The statute which operated this important change moreover
modified the homestead law in an important particular. Thus, for
the first time, both as to the surveyed and unsurveyed public
lands, the right of the homestead settler was allowed to be
initiated by and to arise from the act of settlement, and not from
the record of the claim made in the Land Office. These results
arose from § 3 of the act, reading as follows:
"SEC. 3. That any settler who has settled, or who shall
hereafter settle, on any of the public lands of the United States,
whether surveyed or unsurveyed, with the intention of claiming the
same under the homestead laws, shall be allowed the same time to
file his homestead application and perfect his original entry in
the United States Land Office as is now allowed to settlers under
the preemption laws to put their claims on record, and his right
shall relate back to the date of settlement the same as if the
settled under the preemption laws."
See Maddox v. Burnham, supra.
It cannot be doubted that, at the inception, the Land Office
considered that, under the homestead law, a settler was entitled to
take his 160 acres not alone from a regular quarter-section, but to
make up, as was the case under the preemption law, the quantity
allowed by law, by taking adjoining and contiguous legal
subdivisions, and that such has continued to be the rule by which
the statute has been enforced to this time, both as respects
settlements upon unsurveyed as well as surveyed lands.
See
circular October 30, 1862 (2 Lester, p. 248); departmental
instructions as to entries on public lands, contained in bound
volumes published in 1899 and 1904; circular August 4, 1906, 35
L.D. pp. 187 to 200.
Page 210 U. S. 31
Both under the preemption law and under the homestead law, after
the act of 1880, the rights of the settler were initiated by
settlement. In general terms, it may be said that the preemption
laws (Rev.Stat. §§ 2257-2288), as a condition to an entry of public
lands, merely required that the appropriation should have been for
the exclusive use of the settler, that he should erect a dwelling
house on the land, reside upon the tract, and improve the same. By
the homestead law, residence upon and cultivation of the land was
required. Under neither law was there a specific requirement as to
when the improvement of the land should be commenced or as to the
nature and extent of such improvement, nor was there any
requirement that the land selected should be enclosed.
As, under both the preemption and homestead laws, whether the
settlement was made upon surveyed or unsurveyed land, the law did
not make it necessary to file or record a claim in respect to the
land until a considerable period of time had elapsed after the
initiation of the right by settlement, it necessarily came to pass
that controversies arose from rights asserted by others to land
upon which a settlement had been made, but as to which no exact
specification appeared upon the records of the Land Office of the
location and extent of the land claimed. In the administration of
the land laws, in the endeavor to protect the rights of third
parties acting in good faith, and, at the same time, to give effect
to the rights arising from a settlement and the relation back of
the claim when filed to its initiation by settlement, the decisions
of the Land Office, while consistent in the interpretation of the
statutes, perhaps present, from the nature of the subject, some
lack of precision in the appreciation of the facts involved in
particular cases. It is certain, however, that, viewing
comprehensively the rulings of the Land Department, the subject has
been considered in two aspects -- first, the sufficiency of acts
done by a settler upon or after initiating a claim to give notice
of the extent of his claim to another settler, and second, the
sufficiency of like acts to entitle to a patent for the land as
against the government. In both
Page 210 U. S. 32
the classes, it is undoubted that the administrative rule has
been, as to surveyed and unsurveyed lands, that the notice effected
solely by improvements upon the land is confined to land within the
particular quarter-section on which the improvements are situated.
5 L.D. 141. And this ruling was predicated upon the assumed import
of the decision in
Quinby v. Conlan, 104 U.
S. 420.
In the first class of cases, however -- that is, in contests
between settlers where the claim of the first settler embraced not
only land within the legal subdivision on which the improvements
had been placed, but contiguous land lying in another
quarter-section, the ruling has ever been that any conduct of the
first settler adequate to convey actual or constructive notice to a
subsequent settler that the claim had been initiated not only to
the land upon which the improvements were situated, but as to
contiguous land, even though in another quarter-section, sufficed
to preserve the rights of the first settler. The scope of the
rulings on this subject is illustrated by a decision of the
Secretary of the Interior made in 1893, in Sweet v. Doyle, 17
L.D.197. In that case, the Secretary maintained the homestead right
of Sweet to land lying in different sections. In doing so,
reviewing previous decisions, attention was called to the fact that
it had been ruled that the original settler might defeat an
attempted settlement by another before the time when record notice
was required, in any of the following modes: 1, as to a technical
quarter-section, by the settlement upon and placing of improvements
thereon; 2, as to all of a tract, although lying in different
quarter-sections, by improvements on each subdivision of the land
outside of the quarter-section on which he had settled; 3, by
actual notice to an intruder of the extent of the settlement claim.
Two cases decided in 1887 (Brown v. Central Pacific R. Co. 6 L.D.
151, and Union Pacific R. Co. v. Simmons, 6 L.D. 172) illustrate
the recognition by the Land Department of a right in a qualified
preemptor to settle upon unsurveyed land, although lying in more
than one quarter-section.
Page 210 U. S. 33
As to the second aspect -- that is, the nature and character of
the acts of the settler essential to initiate and preserve a claim
to land as against the government -- the rulings of the Land
Department have been liberal towards the settler, and his good
faith and honest purpose to comply with the demands of the statute
have primarily been considered, thus carrying out the injunction of
this Court in
Tarpey v. Madsen, 178
U. S. 220, and cases there cited, to the effect that
regard should be had, in passing on the rights of settlers, to the
fact that "the law deals tenderly with one who, in good faith, goes
upon the public lands with the view of making a home thereon." The
general course of the Land Department on the subject is illustrated
by two decisions -- Findley v. Ford, 11 L.D. 173, and Holman v.
Hickerson, 17 L.D. 200.
As a result of this review of the legislation concerning
preemptions and homesteads, and of the settled interpretation
continuously given to the same, we think there is no merit in the
proposition that a homesteader who initiates a right as to either
surveyed or unsurveyed land, and complies with the legal
regulations, may not, when he enters the land, embrace in his claim
land in contiguous quarter-sections if he does not exceed the
quantity allowed by law and provided that his improvements are upon
some portion of the tract and that he does such acts as put the
public upon notice of the extent of his claim.
Conclusive as is the text of the statutes and the long continued
administrative construction which has enforced them, it is
nevertheless insisted that a contrary rule must be applied because
of the decision in
Ferguson v. McLaughlin, 96 U. S.
174. That case concerned a special act applicable alone
to California, giving a right to preempt unsurveyed lands, and the
special act governed the rights of the settler by the general rules
controlling under the preemption law of 1841, which, it is
insisted, by the act of 1880 is made determinative of the right of
a homesteader in respect to a settlement on unsurveyed land. The
argument rests upon a misconception of the effect
Page 210 U. S. 34
of the decision in the cited case, or, in any event, assumes
that expressions found in the opinion must be now held to govern a
question not arising on the record in that case.
Without going into great detail, the material facts of the case,
as shown by the file record and the statement of facts contained in
the opinion, were these: two persons settled on two distinct and
separate, but contiguous, parcels of unsurveyed public land.
Ferguson bought the rights of both these parties. On one of the
tracts there was a dwelling and other valuable improvements, and
Ferguson resided on that tract and cultivated and pastured both
tracts. In March, 1866, by virtue of an act of the legislature of
California extending the limits of the Town of Santa Clara, the
parcel upon which was situated the residence of Ferguson, the
possessory right to which has been acquired by him, came to be
included within the limits of the Town of Santa Clara. By a plat of
the United States survey, filed on May 19, 1866, it was shown that
the tract, the possessory right to which had been acquired by
Ferguson, and which was outside of the corporation limits of the
town referred to, lay in Township 6. Thereafter, Ferguson filed his
declaratory statement, claiming the right to enter this parcel
under the preemption laws. Subsequently, in October, 1866, the
United States plat of survey of Township 7, which embraced the Town
of Santa Clara, and therefore the residence tract of Ferguson, was
filed. Ferguson then sought to amend his former declaratory
statement so as to embrace the parcel of land situated in the Town
of Santa Clara, in Township 7, upon which his residence and other
improvements stood. The register and receiver, however, refused to
allow this to be done, and required Ferguson to make a separate
declaratory statement for that parcel. Subsequently, in virtue of a
provision of an act of Congress, Ferguson, as the possessor of the
lot and improvements referred to as situated in Township 7, became
the owner of that parcel by deed from the town. A contest ensued in
the Land Office between Ferguson and a railway company claiming by
statutory grant, which contest related solely to a portion
Page 210 U. S. 35
of the land in Township 6, and upon which he filed his first
declaratory statement. No controversy was had as to the land
included in the second declaratory statement, which related to the
land in the Town of Santa Clara, because Ferguson had acquired that
land from the town, in conformity to the act of Congress. The local
land officers decided that Ferguson was not entitled to the land in
Township 6, which he claimed as a preemptor, "upon the sole and
exclusive ground" that his dwelling was not upon the land so
claimed. This action was affirmed by the Commissioner of the
General Land Office and the Secretary of the Interior, it being
further found that, by reason of sales of portions of the land
after filing, Ferguson could not be regarded as a
bona
fide settler. A patent issued to the railway company for the
land which it claimed, and a transferee of the company brought
ejectment against Ferguson in a state court of California to obtain
possession of the land, and Ferguson, under the practice in
California, by way of cross-complaint, challenged the legal
correctness of the ruling of the Land Department, and asserted that
the railroad and its transferee held the land as his trustee. The
trial court, as did the Supreme Court of California, sustained the
correctness of the ruling of the Land Department, and the case came
to this Court. Here, the action of the court below was affirmed,
the court, in its opinion, declaring that the ruling of the Land
Department, rejecting the claim because the residence of Ferguson
was not on any part of the congressional subdivision "to which the
land belonged," was not only correct, but was also an expression of
the well established rule of the Land Department. True it is that,
in the course of the opinion, expressions were used which permit of
the construction that it was intended to be decided that a
homestead settler could only acquire land within a regular
quarter-section, on which must be his improvements. But the
decision must be confined to the question before the court, which
was the right of a settler to claim a tract of 160 acres of land
under the homestead law when on no part of the land for which the
patent was claimed had the improvements
Page 210 U. S. 36
required by the statute been made. Not only the issues in the
case make this clear, but this also results from the statement of
the court that its conclusion was in accord with, and was intended
to uphold and apply, the rulings of the Land Department from the
beginning. This must follow because, if the language of the opinion
relied upon in the argument were to be given the meaning now
attributed to it, it would result that the opinion, instead of
giving sanction to and maintaining the rulings of the Land
Department, would have overthrown the entire administrative
construction of the act enforced from the beginning. For whilst it
is true, as has been shown, that the Land Department had always
held that there must be compliance with the statutory requirements
as to a dwelling and improvements on the tract settled upon and
claimed, those rulings went
pari passu with the consistent
and settled rule by which a settler was allowed to take the land
which he claimed from different quarter-sections if he had given
adequate notice of the extent of his claim both within and without
the legal subdivision in which his improvements were situated. And
this view of the true meaning of the decision in the
Ferguson case, irrespective of general expressions found
in the opinion, is fortified by the fact that, since that case was
decided, in not one of the rulings of the Land Department has the
case been referred to as changing the settled rule then prevailing,
and which has been continued without interruption. Indeed, when the
settled construction of the Land department is taken into view, and
the unbroken application of that rule by it is borne in mind, the
conclusion necessarily follows that Congress, in enacting the act
of 1880, clearly must have had in mind the settled rule of the Land
Department which the
Ferguson case declared the court
affirmed.
If we could bring ourselves to disregard the settled
administrative construction prevailing for so many years,
impliedly, if not expressly, recognized by Congress, and should
look at the subject as an original question, it cannot be doubted
that, even upon the hypothesis that statements in the opinion
in
Page 210 U. S. 37
Ferguson v. McLaughlin justifies the assumption now
based upon them, such assumption would cause the decision in that
case, if applied to the issue here presented, to be destructive of
the rights of settlers to initiate claims, both as to surveyed and
unsurveyed land, prior to the time of making formal application to
enter the land. This is said because it is apparent that the right
given by the statute would be destroyed if it be that a homesteader
who settles upon surveyed land, and locates his residence in an
eligible situation upon a quarter-quarter-section, relying upon
fertile land in other quarter-sections to enable him to make his
settlement fruitful, can, after having given public manifestation
of his intention as to the boundaries of his claim, have all the
land, except only the quarter-quarter-section on which he resides,
taken away from him by someone else before the time arrives when,
by law, the homesteader is required to make application to enter.
And the same thing is more cogently true of unsurveyed land. No
more apt illustration of the unjust result referred to could be
given than is disclosed by this very case, for, as we have said,
the claim of Hickey embraced, among other land, two lots forming a
fractional quarter-section. This was occasioned by the existence of
a body of water which controlled the survey and caused the
fractional quarter-section consisting solely of the two lots
referred to. It was upon this quarter-section, bordering upon the
water, that Hickey erected his dwelling. It is apparent that the
right given by statute would be unavailing if it were to be held
that Hickey had not the legal power to initiate any claim to the
contiguous land, thus confining him to the fractional lots bounded
by the water, in effect cutting off the only land which could
possibly have made the settlement beneficial, although immediately
on such settlement, as found by the Land Department, Hickey had
manifested to the whole community his purpose to claim the land
which he afterwards applied to enter, in order to make up his 160
acres.
Concluding from the foregoing that the Land Department was right
in its original decision as to the right of Hickey to
Page 210 U. S. 38
enter the land as a homestead, we are brought to consider the
second proposition -- that is, whether the Department was right in
rejecting the timber entry of Donohue and awarding the land to the
railroad company. When that question is considered in its ultimate
aspect, it will be apparent not only that it is related to the
question of the validity of the settlement of Hickey, but it
necessarily follows that the validity of that settlement in effect
demonstrates the error of law committed by the Department in its
ruling as to the Donohue entry.
The decision of the Secretary of the Interior which finally
sustained the application of Hickey and directed that, upon the
completion of the entry, the selection of the railway company
should be cancelled was made on February 11, 1903. Mrs. Hickey, as
the heir of her son, completed the entry in June following. About a
month afterwards, however, she filed a written relinquishment of
the entry in the local Land Office, and on the same day Donohue
made a timber and stone application for the land, and was allowed
to enter the same. On report by the local Land Office of the
relinquishment of Mrs. Hickey, the General Land Office, in
February, 1904, accepted the relinquishment and cancelled the
homestead entry. At the same time, however, the Commissioner
instructed the local Land Officers as follows:
"This releases from suspension the selection by the St. Paul,
Minneapolis & Manitoba Railway Company under Act of August 5,
1892, of lot 12, sec. 3, and lots 9 and 10, sec. 4 -- lots 14 and
15 not appearing to be within the company's original
selection."
"You will inform Mrs. Hickey of the above action, and also
advise the company thereof, and that thirty days' preference right
will be allowed it in which to perfect its selection of said lot
12, sec. 3, and lots 9 and 10, sec. 4, in accordance with its
Duluth list 7 (supplemental to list 5) filed July 22, 1896."
In March, 1904, the Commissioner, writing to the local Land
Officers in regard to a report by them of the allowance of
Donohue's timber culture entry, said:
Page 210 U. S. 39
"This entry should not have been allowed; the contest for this
land was between the railway company and the heirs of Jerry Hickey;
but before the final action on the case, and the rejection of the
company's application to select, the claim of the heirs of Hickey
was relinquished and their homestead cancelled, which left the land
subject to the application of the company."
"You will therefore notify the company in accordance with
instructions of February 18, allowing it thirty days from notice in
which to perfect its selection."
"The entry of Donohue will be held suspended, subject to the
action of the company, and should it perfect the selection, the
entry will be held for cancellation."
The railway company perfected its selection of the lands in
controversy, and the "entry of Donohue was held for cancellation,
subject to appeal." Donohue appealed, but, in an opinion dated
December 16, 1904, the action of the Commissioner was approved, and
this decision was reaffirmed in an opinion dated March 17, 1905,
ruling adversely upon a motion to review. The selection made by the
railway company was approved by the Secretary of the Interior, and
a patent was issued for the land.
The Secretary of the Interior, in ruling upon the effect of the
relinquishment of Mrs. Hickey and in passing upon the claim of
Donohue, proceeded upon the hypothesis that the controversy
presented by the appeal of Donohue was really a prolongation or
extension of the original contest, and that the relinquishment of
Mrs. Hickey constituted an abandonment of the homestead
application, and, being made during the contest, conclusively
established that the settlement of Hickey was not made in "good
faith," and that such relinquishment operated to make the
settlement of Hickey inefficacious to initiate a claim to the land,
thereby validating the selection made by the railway company.
But the assumptions upon which these conclusions were based
clearly disregarded the fact of the long possession by Hickey and
his heir of the land during the pendency of the
Page 210 U. S. 40
contest, and disregarded the previous and final ruling of the
Secretary, made in February, 1903, which maintained the validity of
the settlement of Hickey, and decided that, by such settlement, he
had validly initiated a claim to the land. When this is borne in
mind, it is clear that the ruling rejecting the Donohue claim and
maintaining the selection of the railway company was erroneous as a
matter of law, since, by the terms of the Act of August 5, 1892, 27
Stat. 390, c. 382, the railway company was confined in its
selection of indemnity lands to lands nonmineral, and not reserved,
"and to which no adverse right or claim shall have attached or have
been initiated at the time of the making of such selection. . . ."
When the selection and supplementary selection of the railway
company was made, the land was segregated from the public domain,
and was not subject to entry by the railroad company.
Hastings
& Dakota Ry. Co. v. Whitney, 132 U.
S. 357;
Whitney v. Taylor, 158 U. S.
85;
Oregon & California R. Co. v. United
States, 190 U. S. 186.
Further, the decision refusing recognition to the Donohue entry
and awarding the land to the railway company disregarded the
statutory right of Mrs. Hickey to relinquish, and of Donohue to
make application for, the land, conferred by the first section of
the Act of May 14, 1880, c. 89, 21 Stat. 140, reading as
follows:
". . . when a preemption, homestead, or timber culture claimant
shall file a written relinquishment of his claim in the local land
office, the land covered by such claim shall be held as open to
settlement and entry without further action on the part of the
Commissioner of the General Land Office."
Affirmed.
THE CHIEF JUSTICE, MR. JUSTICE BREWER, and MR. JUSTICE MOODY
dissent.