Where an application for public lands is finally rejected on the
ground that the soldier on whose claim the application is based had
no right thereto, the case is closed, and cannot be kept open for
perfection by substituting the claim of another soldier, and the
instant the application is rejected, the land becomes subject to
appropriation by another.
An application must depend upon its particular basis; it cannot
be kept open for the substitution of another right than that upon
which it was made, and if a practice to do so existed in the
Department, it was wrong.
Moss v. Dowman, 176 U.
S. 413.
Even though the Secretary keeps the case open and afterwards
rules in favor of the subsequent entryman, the original applicant
is not divested of any rights, for no right had attached.
An application based on an invalid claim of a soldier is not an
entry valid on its face which segregates the land from the public
domain and precludes its appropriation by another until set aside.
McMichael v. Murphy, 197 U. S. 304,
distinguished.
The facts, which involve the right of one filing an application
for public lands based on a soldier's claim, to keep it open after
final rejection for substitution of the claim of another soldier,
and departmental practice in regard thereto, are stated in the
opinion.
Page 227 U. S. 174
MR. JUSTICE McKENNA delivered the opinion of the Court.
Bill in equity by appellants, who were complainants in the
circuit court, and we shall so refer to them, and to the appellee
as defendant, to adjudge defendant trustee for complainants of the
S.W. 1/4 of the S.E. 1/4 of Section 13, Township 55 North, Range 26
West of the principal meridian, and to compel a conveyance to them.
The Santa Fe Railroad Company was impleaded with defendant, but it
filed a disclaimer and the suit proceeded against him alone.
The rights of complainants are based upon an application for the
lands as unappropriated public lands of the United States by
Robinson, one of the complainants, as assignee of one James
Carroll. The application was duly entered of record upon the tract
and plat book in the local land office, and proof of the claim of
Carroll for an additional homestead entry was transmitted to the
General Land Office for examination and action. Upon investigation,
the Land Department decided that Carroll was not entitled to make
such entry, and held Robinson's application for rejection, and
ordered a hearing to be had on June 29, 1905. Robinson did not
appear, and a decision was rendered holding that Carroll was not
entitled to an additional homestead entry under § 2306 of the
Revised Statutes. Robinson was notified of this action and that he
had a right to appeal therefrom.
On the twenty-seventh of July, 1905, Robinson filed with the
local land office for transmission to the General Land Office an
application for leave to substitute, in support of his application
for entry of the land, another soldier's additional homestead right
in lieu of that of Carroll. In his application, he said he appealed
from the order, cancelling Carroll's entry, and excused himself for
not appearing at the hearing on June 29, 1905, on account
Page 227 U. S. 175
of the sudden and serious illness of his mother, which prevented
his attendance at the hearing and also prevented him from providing
a representative thereat. He disclaimed a desire to incommode the
Department, and expressed a willingness to aid it in the adjustment
of all matters in which he should be interested. He further said
that he was deeply sensible and appreciated the seriousness of
defaulting at the hearing, and that he did not want the case
reopened. He requested a delay of thirty days, and asked that the
decision of the register and receiver of the land office be amended
so as to grant him a reasonable time within which to perfect his
entry.
An order was made allowing him thirty days after notice to file
a proper substitute for the right of Carroll. On October 4, 1905,
he, Robinson, filed the additional homestead right of one Justin F.
Heath.
On February 15, 1906, the Commissioner of the General Land
Office accepted the substitute, and directed the local land office
that, upon the payment by Robinson of the legal fees and
commissions within sixty days, they should allow the entry made by
him. He paid the fees as required, and thereupon final certificate
No. 715, Cass Lake, Minnesota, series, was issued to him.
On July 11, 1905 -- that is, prior to the filing by Robinson of
the homestead right of Heath -- the Santa Fe Railroad, through the
defendant Lundrigan, its attorney in fact for that purpose, filed
in the local land office under the Act of Congress of June 4th,
1897, its application to select the land. The application was
received subject to final action on Robinson's application. Upon
the allowance of Robinson's application and the issue to him of a
final certificate, the local land office rejected the application
of the railroad company, from which action the latter appealed to
the Commissioner of the General Land Office. The Commissioner held
that the application of the railroad company constituted a valid
intervening adverse right such as to
Page 227 U. S. 176
bar the substitution by Robinson of the additional homestead
right of Heath. On February 25, 1907, the Secretary of the Interior
affirmed the decision of the Commissioner. Upon motion for review,
the decision was affirmed May 13, 1907, and, on petition for
review, reaffirmed July 18, 1907.
In pursuance of this decision, Robinson's entry was cancelled,
and a patent for the land was issued to the railroad company. The
railroad company subsequently conveyed the land to defendant.
The above facts are not denied. It is alleged by complainants
that, for many years immediately preceding the decision holding
Robinson's application for cancellation, there was a rule,
regulation, and settled practice prevailing in the Department
providing that, upon the rejection of a soldier's additional
homestead right, surrendered by the assignee thereof in support of
an application under § 2306 of the Revised Statutes, such applicant
might substitute in support thereof a valid additional homestead
right in place of that rejected.
The existence and validity of the rule is in dispute between the
parties, and also the legality of the decision of the Interior
Department against Robinson's application.
The circuit court dismissed the bill, and its decree was
affirmed by the circuit court of appeals by a divided court. 178 F.
230.
The question in the case is very direct. Robinson's application
had no legal foundation, Carroll, upon whose rights it was made,
not being entitled to make an additional homestead entry. The
question, then, is could Robinson substitute another right, and
give his application precedence over the intervening claim of the
railroad company? An affirmative answer is contended for by
complainants upon the practice of the Land Office. The defendant
denies the existence of the practice, and contends besides that, if
it be established, it is destitute of legal effect.
Page 227 U. S. 177
We have seen that Robinson was given an opportunity to avert the
rejection of his application and support it by proof of a right in
Carroll. He defaulted, but he did not ask to reopen the case and
establish a legal foundation for his application, but that he be
given thirty days to "rescript" the land. To this the Commissioner
of the Land Office responded, affirming the decision of the local
land office rejecting the application, and pronouncing "the case
closed." He was, however, given thirty days to "file a proper
substitute for the right" rejected, and, if he failed to do so, the
local office was directed to hold the tract "subject to entry from
that time by the first qualified applicant."
On October 4, 1905, he filed as a substitute the right of Justin
F. Heath, but on July 11, 1905, the railroad company had selected
the lands as lieu lands. The local land office rejected the
application of the railroad company on account of conflict with
Robinson's entry, subject, however, to the right of appeal. An
appeal was taken and Robinson moved to dismiss it. The motion was
denied on the authority of the departmental decision in the case of
the
Southern Pacific Railway Co. v. Charles P. Maginnis,
Assignee of William R. Davis, in which it was decided, the
facts being substantially the same,
"that a substitution could not be allowed in the face of an
intervening adverse and Acting Secretary Woodruff. Secretary
Hitchcock, and successively upon review and re-review by Secretary
Garfield and Acting Secretary Woodruff."
Against these rulings, complainants urge previous departmental
practice. This practice Robinson urged in his petition for review,
and cited in support of it the case of
Germania Iron Co. v.
James, 89 F. 811. To the contention and the case, the Acting
Secretary replied as follows:
"In that case, the court held that a just and reasonable rule of
administration adopted and applied by the Department became a rule
of property, and could not be
Page 227 U. S. 178
altered to the prejudice of those who had initiated rights under
such practice. But the rule contended for by counsel as governing
the case is neither reasonable nor just. Robinson attempted to
initiate a right by relying upon the invalid claim of another, and
insists that, even though the Department would be unwarranted in
recognizing such claim, he could be allowed to perfect the right
thus asserted, to the prejudice of a valid intervening right, of
which he had notice, by the substitution of another and different
right. The simple statement of the facts destroys all of the
argument in support of such practice. There is neither reason nor
equity in it. Had Robinson been clothed with a right in himself,
independent of any right claimed through his assignor, another
question might be presented. But such is not the case, as he was
relying solely upon the rights obtained by the assignments, and of
these the first was worthless, and prior to the assertion of the
second the right of another had attached. The arbitrary destruction
of this intervening right in the manner contended for by counsel
would be wholly unwarranted."
Little need be added to this reasoning. We are not disposed to
review the cases by which it is contended the practice is
established. It could only prevail if it were a reasonable
administration of the statute.
Webster v. Luther,
163 U. S. 331,
163 U. S. 342.
Under § 2304 of the Revised Statutes, every private soldier and
officer who had served in the Army or Navy of the United States
during the War of the Rebellion is entitled to enter under the
homestead laws 160 acres of land. We omit the qualifying
conditions. Section 2306 provides that every person mentioned in §
23041 who has entered under the latter section less than 160 acres
"shall be permitted to enter so much land as, when added to the
quantity previously entered, shall not exceed one hundred and sixty
acres." This provision is the foundation of Robinson's
Page 227 U. S. 179
rights. In
Webster v. Luther, supra, these sections
were considered, and it was decided that the right given by § 2306
was intended as compensation, and was assignable. When assigned,
however, it is the right of the soldier which is transferred and
which must be used to make an entry. Necessarily the right must
exist before it can be exerted either by him or his assignee. Or,
to put it in another way, a baseless or fraudulent claim cannot
initiate or sustain a right. Hence the distinction made by Acting
Secretary Woodruff between a right in Robinson and right in his
assignor, and the observation that, "had Robinson been clothed with
a right in himself, independent of any right claimed through his
assignor, another question might be presented." Hence also the
decision of Secretary Garfield that
"no right of entry is gained by the filing of an invalid
application to enter, and upon the rejection thereof the rights of
subsequent applicants attach in the order in which they are
asserted. By admitting the rights of substitution, irrespective of
the intervening rights, the mere filing of an individual soldier's
additional application would in effect amount to a segregation of
the land."
And again:
"The refusal of the Department to adopt such a practice does not
prejudice the holder of a valid right. The only value of such right
lies in the power of the holder to enter thereunder any land
subject to it at the date of filing his application. This right is
not denied in the present case, as the land there involved was
subject thereto only in event there were no prior adverse claims
asserted upon which entry should be allowed. The right itself is
not destroyed by refusing to allow entry thereunder of this
particular tract. The purchaser still has all that he bargained
for, and the mere fact that his purchase may have been made upon
the mistaken idea that he would be entitled as a matter of right to
exercise it upon a particular tract of land does not entitle him to
equitable consideration as against a prior, and therefore superior,
right of another. "
Page 227 U. S. 180
The ruling was right. Each application must depend upon its
particular basis. And it cannot be kept open for the substitution
of another right than that upon which it was made. If one
substitution can be permitted, successive substitutions can be
permitted, and there might arise the condition of things condemned
in
Moss v. Dowman, 176 U. S. 413. In
that case, successive formal entries under the homestead law and
successive relinquishments of the entries of a tract of land were
made. Dowman, who was not a party to the manipulating process,
about one month prior to the last relinquishment, settled upon the
land. It was held that his right attached immediately upon the
filing of the last relinquishment and before the last entry, though
the latter was made on the same day the relinquishment was filed.
It was recognized that the entry which was given up had segregated
the land, and that no right could be initiated while it stood of
record; but it was decided that the instant its relinquishment was
filed in the local office the right of Dowman, the settler on the
land, attached, and the Moss entry could not defeat it. And so in
the case at bar -- the instant that Robinson's application was
rejected as having no legal foundation, the land became subject to
appropriation by another. No right, therefore, of Robinson was
divested by the ruling of the Department, as contended by
complainants, for no right had attached. His application, based on
the right of Carroll, was not an entry of the land, and is not
within the ruling of
McMichael v. Murphy, 197 U.
S. 304, that an entry valid on its face segregates the
lands from the public domain and precludes their appropriation by
another so long as it remains undisturbed.
Decree affirmed.