A rejection of a homestead entry on the ground that the land was
not open for settlement does not defeat the entry if the Secretary
had no authority to withdraw the land from settlement.
Sjoli v.
Dreschel, 199 U. S. 564.
In an action of ejectment by a railroad company claiming lieu
lands under its grant, against a homesteader, the rule applies that
the plaintiff must recover on his legal title and not upon defects
in defendant's entry; the question is whether the entry was
properly initiated before the selection, and not whether it had
actually ripened into legal title.
In a contest between a
bona fide homesteader and one
claiming under selection of lieu land, the former has the better
claim.
The right of a homesteader settling in good faith relates back
to the date of settlement.
Where a railroad company fails to comply with the statutory
requirements in order to authorize selection of lieu lands in the
indemnity limits, and its selection is rejected, a subsequent
selection does not relate back, but preemption or homestead rights
duly initiated before the second selection have priority.
Land that is actually occupied by a qualified entryman with
intent to claim it as a homestead ceases to be public and subject
to selection as lieu land, even though there be no record evidence
at the time the selection is made.
107 Minn. 568 affirmed.
This was an action of ejectment to recover the Southeast Quarter
of Section 7, Township 119, Range 40, in Chippewa County,
Minnesota. A jury was waived and the case tried by the court, which
made a finding of facts upon which judgment was entered for the
defendant. Upon appeal to the supreme court of the state, this
judgment was affirmed.
Page 216 U. S. 572
107 Minn. 568. Thereupon, in due course, this writ of error was
sued out by the original plaintiffs.
The plaintiffs claim title under a land grant made by Congress,
July 4, 1866, known as the Hastings & Dakota Railway land
grant. The premises are not within the place limits of that grant,
but are included within the indemnity limits of the line of
railroad as located, and were withdrawn from a settlement for the
benefit of the grant on July 12, 1866, and again by a modified
order of April 22, 1868. On May 26, 1883, the Hastings & Dakota
Railway Company, for whose benefit the grant was made, and
hereafter referred to as the railway company, attempted to select
the land in question, together with other lands within the
indemnity limits of the grant, but the selection was rejected by
the local land office of the district. Upon appeal, this action was
affirmed by the Secretary of the Interior on October 23, 1891. This
attempted selection was refused because not made in accordance with
the rules of the department requiring, as a condition precedent,
that there should be furnished by the railroad company a list of
the lands lost within place limits for which lands in lieu were
selected. On July 22, 1890, under the Land Grant Adjustment Act of
March 3, 1887, 24 Stat. 556, c. 376, said land grant was adjusted
in the Land Department of the United States, and it was found that
there existed a deficiency in the place limits of the grant of
922,182 acres, and that all of the lands within the indemnity
limits applicable to cover such loss aggregated less than 100,000
acres. On May 28, 1891, pursuant to instructions from the Secretary
of the Interior, the Commissioner of the General Land Office
directed the officers of the proper local office that, after giving
notice, they should restore to the public domain and open to
settlement all the lands in the indemnity limits of said land
grant, "not embracing selections heretofore made and applied for by
said company."
After the final rejection, on October 23, 1891, of the original
selection made in 1883, the predecessor of the plaintiffs in
title
Page 216 U. S. 573
made a second selection on October 29, 1891, of the land in
suit, together with other lands, which last selection was in due
form and in full compliance with the rules of the department, and
thereafter, through steps not necessary to be stated, the title
acquired by this second selection under said grant was vested in
the plaintiffs in error.
The tenth, eleventh, and twelfth findings of fact are in these
words:
"Tenth. At the time of said selection, the land in question was
not vacant, but was occupied by the defendant, Peter Froyseth, as
hereinafter found."
"Eleventh. Said selection was not approved by the Secretary of
the Interior until 1901."
"Twelfth. That the defendant, on the 1st day of November, 1888,
declared his intention to become a citizen of the United States,
and was, after said date, in all respects qualified and entitled to
make a homestead entry under the laws of the United States, and, on
May 15th, 1889, he settled upon and went into possession of the
land in controversy, with intent to enter upon and claim the same
as a homestead, and with the view of making it his home, and has
continued in possession and resided thereon ever since, and his
residence and improvements were at all times sufficient to comply
with the requirements of the homestead laws of the United States,
and at the time of the commencement of this action, such
improvements exceeded in value the sum of seven hundred dollars
($700); that the defendant has never owned or occupied other real
estate. That he became a full citizen of the United States on June
9, 1897, and been such citizen ever since. On the 3d day of
November, 1891, the defendant offered at the proper land office a
homestead entry in due form for said land, which filing was refused
by the local land officers solely on the ground that said land was
withdrawn from settlement by the executive withdrawal of April 22d
1868, from which refusal the defendant duly appealed, which appeal
remained pending in the Land Department
Page 216 U. S. 574
until September 11th, 1894, on which date the rejection of said
filing by the local land officers was affirmed. From the decision
of the General Land officers the defendant appealed to the
Secretary of the Interior, which appeal was pending until the 25th
day of January, 1896, when the decision of the General Land Office
of September 11th, 1894, was affirmed. That the defendant did all
that was in his power to secure the land as his homestead."
MR. JUSTICE Lurton, after making the foregoing statement of
facts, delivered the opinion of the Court.
The facts found show that, on May 15, 1889, the defendant in
error, being in every way qualified, entered upon the land in
question with the intention of claiming it as a homestead, and has
ever since continued in possession, residing thereon with his
family, and that his improvements have at all times been such as to
comply with the homestead laws, and exceeded in value $700 when
this action of ejectment was started. On November 3, 1891, he
offered at the proper land office a homestead entry, in due form,
for said land. This was rejected. Upon appeal, the decision was
affirmed by the Secretary of the Interior on September 11, 1894.
But the facts found in the trial court, and upon which the Supreme
Court of Minnesota made its decision, show that this entry was
refused by the local land office "solely on the ground that said
land was withdrawn from settlement by the executive withdrawal of
April 22, 1868." A rejection upon the ground stated was not
authorized, for the Secretary of the Interior had no authority to
withdraw from settlement lands within the indemnity limits of the
grant which had not been before selected and approved by
Page 216 U. S. 575
him.
Sjoli v. Dreschel, 199 U.
S. 564, and cases cited. It has been insisted that,
although the local land office rejected the application for the
reason stated, the affirmance, upon his appeal, was because his
homestead application, instead of alleging that he had settled upon
the land at some date prior to the selection made by the railroad
company on October 29, 1891, simply alleged, that "he resides on
the described land." This contention as to the grounds of the
affirmance is only made out by the introduction now for the first
time of the decision of the Secretary of the Interior, under date
of January 25, 1896. But that simply affirms the decision of the
Commissioner made September 11, 1894, affirming the rejection made
by the local land office, and gives no reason for the affirmance.
This decision is sought to be explained by what purports to be a
copy of an official communication under date of September 11, 1894,
from the Commissioner to the local land register and receiver
notifying him that his rejection of a number of homestead entries,
including that of Froyseth, on the indemnity lands in question, had
been affirmed. Among other matters in that communication, it is
stated,
"that none of the applicants allege that the lands were settled
upon either by themselves or others at the date of the said
selections in October, 1891, by the Hastings & Dakota Company,
nor do the records show that the lands were otherwise than vacant
and subject to such selection at said date."
If this be competent for our consideration upon this writ of
error, it being no part of the record, it does not appear that the
applicant was ever advised of this supposed defect in his
affidavit. The local office simply advised him that its decision
had been affirmed. The matter was remediable, as the fact was that
his settlement was made months prior to his application affidavit.
But, assuming that the application in its then form was defective,
it is of no legal consequence in determining the validity of the
title of the plaintiffs in error. This was a plain common law
action of ejectment. The plaintiffs must recover, if at all, upon
the
Page 216 U. S. 576
legal title. That the defendant's application for a homestead
has not yet ripened into a legal title is of no moment if the
plaintiffs are unable to show a complete and superior legal title.
The plain effect of the settlement made upon the land here in
controversy before any valid selection of the same land by the
railroad company, under its grant, was to initiate a homestead
right. That settlement and possession continued from the time it
was first made, and when, in October 1891, the Hastings &
Dakota Railroad, or its successors in title, attempted to select
that land as indemnity land, the land in question was in the actual
occupancy of Froyseth, claiming it as a homestead. It had, by such
settlement, been segregated from the lands subject to selection,
and in a contest between such a homesteader and those claiming
under selections subsequently made of lieu lands, the claim of the
former is the better claim. Under the Act of May 14, 1880, c. 89,
21 Stat. 141, ยง 3, the right of one settling in good faith for the
purpose of claiming a homestead "relates back to the date of
settlement."
Nelson v. Northern Pacific Railway,
188 U. S. 108;
Sjoli v. Dreschel, 199 U. S. 564;
St. Paul &c. R. Co. v. Donohue, 210 U. S.
21. But it is urged that the original selection made May
26, 1883, was valid, and operated to vest the title as of that date
in the railroad company. There is nothing peculiar in the Act of
July 4, 1866, which protected indemnity lands against settlement
upon the filing of a map showing definite location of the railroad.
The grant was one of every alternate section of land, designated by
odd numbers, to the amount of five alternate sections per mile on
each side of the road. Then follows the indemnity provision, in
these words:
"But in case it shall appear that the United States have, when
the lines or route of said roads are definitely located, sold any
section, or part thereof, granted as aforesaid, or that the right
of preemption or homestead settlement has attached to the same, or
that the same has been reserved by the United
Page 216 U. S. 577
States for any purpose whatever, then it shall be the duty of
the Secretary of the Interior to cause to be selected, for the
purposes aforesaid, from the public lands of the United States,
nearest to the tiers of sections above specified, so much land in
alternate sections or parts of sections designated by odd numbers,
as shall be equal to such lands as the United States have sold,
reserved, or otherwise appropriated, or to which the right of
homestead settlement or preemption has attached, as aforesaid,
which lands, thus indicated by odd numbers and sections, by the
direction of the Secretary of the Interior, shall be held by,"
etc.
The rejection by the Secretary of the Interior of the selection
made in 1883 is fatal to any claim now made to carry back the title
of the plaintiffs in error to that selection. The right to any land
within the indemnity limits of the grant, as has been often
decided, depended upon the inquiry whether deficiencies had been
established within the place limits and also whether the lands
selected in place of such lost lands were at the time, subject to
such appropriation. Thus, if either preemption or homestead rights
had been initiated before such selection, the parcels to which such
right had attached were not subject to appropriation as indemnity
lands. The function of the Secretary of the Interior was therefore
judicial, and not ministerial.
Wisconsin Railroad Company v.
Price County, 133 U. S. 496,
133 U. S. 512.
In the case cited above, this Court said:
"Until the selections were approved, there were no selections in
fact -- only preliminary proceedings taken for that purpose -- and
the indemnity lands remained unaffected in their title. Until then,
the lands which might be taken as indemnity were incapable of
identification; the proposed selections remained the property of
the United States. The government was, indeed, under a promise to
give the company indemnity lands in lieu of what might be lost by
the causes mentioned. But such promise passed no title, and, until
it was executed, created no legal interest which could be enforced
in the courts. The doctrine that, until selection
Page 216 U. S. 578
made, no title vests in any indemnity lands has been recognized
in several decisions of this Court. Thus, in
Ryan v. Railroad
Co., 99 U. S. 382,
99 U. S.
386, in considering a grant of land by Congress, in aid
of the construction of a railroad similar in its general features
to the one in this case, the Court said:"
"Under this statute, when the road was located and the maps were
made, the right of the company to the odd sections first named
became
ipso facto fixed and absolute. With respect to the
'lieu lands,' as they are called, the right was only a float, and
attached to no specific tracts until the selection was actually
made in the manner prescribed."
And again, speaking of a deficiency in the land granted, it
said:
"It was within the secondary or indemnity territory where that
deficiency was to be supplied. The railroad company had not and
could not have any claim to it until specially selected, as it was
for that purpose."
In
Sjoli v. Dreschel, 199 U. S. 564,
199 U. S. 566,
this Court said:
"That up to the time such approval is given, lands within
indemnity limits, although embraced by the company's list of
selections, are subject to be disposed of by the United States, or
to be settled upon and occupied under the preemption and homestead
laws of the United States."
But it is urged that the mere fact that there was no record
evidence of the homestead claim when the selections of 1891 were
made was enough to give efficacy to that selection and vest the
legal title under the patents thereafter issued. But this is
answered by what we have already said -- namely, that if at that
date this land was actually occupied by one qualified under the
law, who had entered and settled thereon before that time, with the
intent to claim it as a homestead, the land had ceased to be public
land, and as such subject to selection as lieu land.
We find no error in the judgment of the Supreme Court of
Minnesota, and it is
Affirmed.
MR. JUSTICE BREWER did not sit in this case.
