One who settled on land not at the time open to entry but which
became open does not have to go through the idle ceremony of
vacating and settling upon it anew.
Where the first selection of lieu lands is rejected as
irregular, the land is open during the interval before a new and
regular selection is filed, and the homestead right of one who had
previously settled thereon in good faith attaches, and is superior
to that, under the new selection
As between conflicting claims to public lands, the one whose
initiation is first in time, if adequately followed up, is to be
deemed first in right.
Under the Act of May 14, 1880, 21 Stat. 141 and 2265, Rev.Stat.,
the rights of a settler who fails to assert his claim within three
months of settlement are not inexorably extinguished, but only
awarded to the next settler in order of time who does assert his
claim and complies with the law, and advantage of this statute
cannot be taken by a railroad company selecting land which is
withdrawn from selection by having already been settled on.
Hastings & Dakota Ry. Co. v. Arnold, 26 L.D. 538, approved.
Title acquired by a railway company or its assignee of lieu
lands, improperly
Page 227 U. S. 525
selected because not open by reason of settlement thereon, is
held in trust for the settler by such assignee or his grantee who
took with notice.
118 Minn. 344 reversed.
The facts, which involve questions of priority of right between
a homestead settler and a railway company selecting lieu lands
under a grant, are stated in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This case presents a controversy over one of the quarters of an
odd-numbered section within the indemnity limits of the railroad
land grant of July 4, 1866, to the State of Minnesota, which the
state transferred to the Hastings & Dakota Railway Company. 14
Stat. 87, c. 168. The trial court gave judgment for the plaintiff,
which was affirmed by the supreme court of the state (118 Minn.
344), and the defendant prosecutes this writ of error.
The facts material to the controversy are these: in 1883, after
the completion of the road, the railway company filed in the local
land office an indemnity selection of the tract in controversy, but
neglected to comply with an existing regulation requiring that the
selection be accompanied by a designation of the loss in the place
limits in lieu of which the selection was made. Report Comm'r
G.L.O. 1879, p. 128, Rule V. The selection was rejected by the
local officers, but remained pending on successive appeals to the
Commissioner of the General Land Office and the Secretary of the
Interior until October 23, 1891, when it was finally rejected by
the latter
Page 227 U. S. 526
because of that irregularity. Six days later, Russell Sage,
trustee, to whom the rights of the railway company under the land
grant had then been assigned, filed another indemnity selection of
the same tract, accompanied by a proper designation of the loss in
lieu of which the selection was made, and in that connection
claimed and alleged that the tract was then vacant and
unappropriated. March 29, 1897, this selection was approved by the
Secretary of the Interior, and the tract was certified under the
grant, the certification being treated as the equivalent of a
patent. 14 Stat. 97, c. 183. The plaintiff subsequently acquired
the right and title of Sage, trustee, to the tract, but did so with
full notice and knowledge of the occupancy and claim of the
defendant.
In 1885, the defendant applied at the local land office to make
a homestead entry of the tract, and the application was denied, the
circumstances being such that it could not be allowed. In 1888,
while the selection of 1883 was pending, he settled upon the tract
with the purpose of acquiring the title by compliance with the
homestead law, and continuously thereafter resided upon the tract,
occupied, improved, and cultivated it, all the time asserting a
claim under that law. The improvements which he made exceeded
$2,000 in value, and the area which he reduced to cultivation
exceeded 100 acres. Being continuous, his occupancy and claim
covered the interim between the final rejection of the first
indemnity selection and the filing of the second one, but he did
not again apply at the local office to make a homestead entry until
1904, which was after the tract had passed beyond the jurisdiction
of the Land Department by the certification under the land grant.
At the time of his settlement and continuously thereafter, he
possessed all the qualifications requisite to acquire the title as
a homestead claimant.
The plaintiff's title receives no support from the indemnity
selection of 1883, for, as has been seen, it did not
Page 227 U. S. 527
conform to the existing regulations in an essential particular,
and was finally rejected, October 23, 1891, for that reason. And to
avoid an extended statement and discussion respecting an indemnity
withdrawal made in 1868 and still another claim to the tract, both
of which were terminated on or shortly before October 23, 1891
(
see H.R.Ex.Doc. 246, 50th Cong., 1st Sess.; 26 Stat. 496,
c. 1040, § 4; St. Paul & Sioux City R. Co., 12 L.D. 541;
Creswell Mining Co. v. Johnson, 13 L.D. 440), it will be assumed,
without so deciding, that the defendant's claim receives no support
from what he did anterior to that date.
Following the final rejection of the first selection, there was
an interval of six days in which the land was not only free from
any claim under the land grant, but open to settlement under the
homestead law. So, apart from the defendant's earlier efforts,
there can be no doubt that, by his residence and occupancy during
that interval, he initiated and acquired a homestead right. He was
not disqualified by reason of what he had done before, and, of
course, it was not necessary that he should go through the idle
ceremony of vacating the land and then settling upon it anew. This
is the view uniformly applied in the Land Department. Central
Pacific Railroad Co. v. Doll, 8 L.D. 355; La Bar v. Northern
Pacific Railroad Co., 17 L.D. 406; Vanderberg v. Hastings &
Dakota Railway Co., 26 L.D. 390.
See also Moss v. Dowman,
176 U. S. 413. The
second selection came after this homestead right had attached, and
therefore was subordinate to it. In its facts, the case is like
Sjoli v. Dreschel, 199 U. S. 564, and
Osborn v. Froyseth, 216 U. S. 571, and
unlike
Weyerhaeuser v. Hoyt, 219 U.
S. 380, and
Northern Pacific Railway Co. v.
Wass, 219 U. S. 426, and
yet is within the principle recognized and enforced in each --
viz., that, as between conflicting claims to public lands,
the one whose initiation is first in time, if adequately followed
up, is to be deemed first in right. The
Sjoli and
Osborn cases involved conflicts
Page 227 U. S. 528
between claims initiated by homestead settlement and claims
resting upon railroad indemnity selections subsequently filed, and
because the former were first in time, they were held to be
superior in right. The
Weyerhaeuser and
Wass
cases presented conflicts between railroad indemnity selections and
claims initiated, one by an application to purchase under the
timber and stone act, and the other by a homestead settlement,
while the selections were pending, and it was held that the
selections gave the better right because they were first in
time.
That, in point of residence, improvements, and cultivation the
defendant fully complied with the homestead law is not questioned,
but it is contended that he lost his claim by not asserting it in
due time at the local land office. It is true that the Act of May
14, 1880, 21 Stat. 140, c. 89, § 3, in connection with Rev.Stat. §
2265, fixed three months from the date of settlement as the time
within which the claim should be asserted at the local land office,
and that the defendant did not conform to this requirement, but
that is not a matter of which advantage can be taken by one who
stands in the shoes of the railway company, as does the plaintiff.
The statute does not contemplate that such a default shall
inexorably extinguish the settler's claim, but only that the land
shall be "awarded to the next
settler in the order of
time" who does so assert his claim and otherwise complies with the
law. As was said by this Court in
Johnson v.
Towsley, 13 Wall. 72,
80 U. S. 90:
"We think that Congress intended to provide for the protection
of the first settler by giving him three months to make his
declaration, and for all other settlers by saying if this is not
done within three months, anyone else who has settled on it within
that time, or at any time before the first settler makes his
declaration, shall have the better right."
The question has been repeatedly considered by the Secretary of
the Interior in connection with railroad indemnity selections of
lands covered by existing homestead settlements
Page 227 U. S. 529
which had not been asserted at the local office within the time
prescribed, and his ruling has been that
"a failure to file an application to enter lands within three
months after settlement forfeits the claim to the next settler in
order of time, but such default is not one that can be taken
advantage of by a railway company."
Hastings & Dakota Railway Co. v. Arnold, 26 L.D. 538, 540;
Missouri, Kansas & Texas Railway Co. v. Troxel, 17 L.D. 122,
124. We regard that ruling as resting upon a proper conception of
the statute.
Had the real facts been disclosed to the Land Department --
viz., that the defendant was residing upon and occupying
the land in virtue of a lawful homestead settlement antedating the
second indemnity selection, it would have been the duty of the
secretary of the Interior to disapprove the selection, and no doubt
he would have done so. But the real facts were not disclosed. On
the contrary, it was claimed and alleged by the agent who acted for
Sage, trustee, in making the selection, that the land was then
vacant and unappropriated, and on that representation the
Secretary's approval was given. Thus, the title was wrongfully
obtained by one who was not entitled to it, and another who had
earned the right to receive it was prevented from obtaining it when
subsequently he came to assert his right before the Land
Department. Whatever may have been the cause of the defendant's
delay in so asserting his right, there is no suggestion that he
either knew of or acquiesced in the representation that the land
was vacant and unappropriated, or that he was in any wise apprised
of the filing, pendency, or approval of the second selection until
after the land had passed out of the jurisdiction of the Land
Department by the certification under the land grant. In short, the
proceeding was essentially
ex parte, and he was neither
heard nor given an opportunity to be heard.
In these circumstances, we think it is a necessary
conclusion
Page 227 U. S. 530
that the title acquired by Sage, trustee, was held by him in
trust for the defendant, and that it is now held upon a like trust
by the plaintiff, who took with full notice and knowledge of the
defendant's occupancy and claim.
Rector v. Gibbon,
111 U. S. 276,
111 U. S. 291;
Widdicombe v. Childers, 124 U. S. 400,
124 U. S. 405;
Duluth & Iron Range Railroad Co. v. Roy, 173 U.
S. 587.
As the state courts proceeded upon the theory that the second
selection gave the better right notwithstanding the defendant's
claim was first in time, the judgment is reversed, and the case is
remanded for further proceedings not inconsistent with this
opinion.
Reversed.