The Act of May 14, 1880, c. 89, 21 Stat. 140, provides that
"where any person has contested, paid the land office fees, and
procured the cancellation of any preemption, homestead, or timber
culture entry, he shall be notified by the register of the land
office of the district in which such land is situated of such
cancellation, and
Page 256 U. S. 478
shall be allowed thirty days from date of such notice to enter
said lands."
Held, adopting the practical construction of the Land
Department that, where an existing first-form withdrawal under the
Reclamation Act prevented the land from becoming open to entry for
more than thirty days after the notice of cancellation issued, a
successful contestant of a homestead entry had thirty days after
the tract was restored to public entry within which to exercise his
preferred right. P.
256 U. S.
480.
181 Cal. 607 affirmed.
This was a suit brought by McLaren to establish his equitable
title to land patented to Fleischer, and to require Fleischer to
convey. The state court of first instance dismissed the complaint,
and the certiorari brings up a judgment of the state supreme court
affirming that judgment. The facts are stated in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This case presents a controversy arising out of conflicting
applications to enter a quarter section of land under the homestead
law. While the land was public and unappropriated, one Rider made a
homestead entry of it, and later it was included, with other lands,
in a first-form reclamation withdrawal. [
Footnote 1] The withdrawal did not extinguish Rider's
entry, but, while in force, prevented the initiation of other
claims. It was largely provisional, and whenver, in the judgment of
the Secretary of the Interior, any of the lands were not required
for the purpose for which the withdrawal was made, they were to be
restored to public entry. While the withdrawal
Page 256 U. S. 479
was in force, one Fleischer instituted a contest against Rider's
entry at his own cost, collected and presented evidence
establishing its invalidity, and procured its cancellation. Rider
acquiesced in that decision, and is not concerned in the present
controversy. Fleischer had no claim to the land prior to the
contest, and, in instituting and carrying it through, acted as a
common informer, which was admissible under the public land laws.
To encourage the elimination of unlawful entries by such contests.
Congress had declared in the Act of May 14, 1880, c. 89, § 2, 21
Stat. 140:
"In all cases where any person has contested, paid the land
office fees, and procured the cancellation of any preemption,
homestead, or timber culture entry, he shall be notified by the
register of the land office of the district in which such land is
situated of such cancellation, and shall be allowed thirty days
from date of such notice to enter said lands."
When Rider's entry was cancelled, the register sent to Fleischer
a written notice informing him thereof and stating that he would be
allowed 30 days after the tract was restored to public entry within
which to enter it in the exercise of his preferred right as a
successful contestant. The notice was dated February 11, 1909.
Afterwards, the Secretary of the Interior issued an order whereby
the lands included in the withdrawal were restored to settlement on
April 18, 1910, and to public entry on May 18 following. On the
earlier date, one McLaren made homestead settlement on this tract,
and, on the later date, both Fleischer and McLaren applied at the
local land office to make homestead entry thereof -- Fleischer in
the exercise of his preferred right and McLaren in virtue of his
settlement. Fleischer's application was allowed and McLaren's
rejected, the local officers being of opinion that Fleischer had
the prior and better right. McLaren appealed, and the action of the
local
Page 256 U. S. 480
officers was sustained by the Commissioner of the General Land
Office and by the Secretary of the Interior. In due course,
Fleischer received a patent for the land, and McLaren then brought
this suit to have Fleischer declared a trustee for him of the title
and to compel a conveyance in execution of the trust. During the
pendency of the suit, McLaren died, and it was revived in the name
of his personal representative. Fleischer prevailed in the court of
first instance and again in the supreme court of the state. 181
Cal. 607. A writ of certiorari brings the case here. 253 U.S.
479.
The sole question for decision is whether the officers of the
land department erred in matter of law in holding that, under the
Act of May 14, 1880, Fleischer was entitled to 30 days after the
land was restored to entry within which to exercise his preferred
right of entry. The words of the act are, "shall be allowed thirty
days from the date of such notice to enter said lands." Generally,
when an existing entry is cancelled, the land becomes at once open
to entry, and the act is easily applied. But where, as here, an
existing withdrawal prevents the land from becoming open to entry
for more than 30 days after the notice of cancellation issues, the
application to be made of the act is not so obvious, and it becomes
necessary to inquire what is intended. Does the act mean that the
preferred right to enter the land is lost if not exercised within
30 days after the notice issues, even though the land is not open
to entry during that period? Or does it mean that the contestant
shall have 30 days during which the land is open to entry within
which to exercise his preferred right, and therefore that, if the
land is not open to entry at the date of the notice, the time
during which that situation continues shall be eliminated in
computing the 30-day period? In the practical administration of the
act, the officers of the land department have adopted and given
effect to
Page 256 U. S. 481
the latter view. They adopted it before the present controversy
arose or was thought of, and, except for a departure soon
reconsidered and corrected, they have adhered to and followed it
ever since. [
Footnote 2] Many
outstanding titles are based upon it, and much can be said in
support of it. If not the only reasonable construction of the act,
it is at least an admissible one. It therefore comes within the
rule that the practical construction given to an act of Congress,
fairly susceptible of different constructions, by those charged
with the duty of executing it is entitled to great respect, and, if
acted upon for a number of years, will not be disturbed except for
cogent reasons. [
Footnote
3]
The case of
Edwards v. Bodkin, 249 F. 562, and
Bodkin v. Edwards,
Page 256 U. S. 482
265 F. 621, in which there was a decree of affirmance by this
Court (
255 U. S. 255 U.S.
221), is cited as upholding a different view of the act. The
opinions rendered by the circuit court of appeals do indicate that
it was disposed to think the words "thirty days from the date of
such notice" should be taken literally and strictly, but a careful
reading of the opinions discloses that the decision was not put on
that ground. As was rightly said by the supreme court of the state
in the present case, "the decision there was not to the effect that
the contestant was by mistake of law given the preference right."
Indeed, that case did not call for any expression of opinion on the
subject. The plaintiff there was the original homestead entryman
and was insisting that his entry had been unlawfully cancelled. If
that claim was well taken, as was held, the cancellation did not
give rise to any preferred right. Besides, the defendant there was
not claiming under an entry based on a preferred right, but under
entries made after he had relinquished the entry which he claimed
was based thereon. Thus, the observations of the circuit court of
appeals respecting preferred rights were
obiter dicta,
and, as the decree of affirmance in this Court was put on other
grounds, those observations are neither authoritative nor
persuasive.
Here, it is not questioned that the original or first entry --
that of Rider -- was lawfully cancelled. McLaren recognized that
that entry had been lawfully eliminated when he sought to initiate
a claim to the land. He should also have recognized that Fleischer,
by his contest, had brought about its elimination and was entitled,
as a reward, to enter the land at any time within thirty days after
it was restored to entry.
We conclude that the state courts rightly refused to disturb the
construction which the officers of the land department had put on
the act.
Judgment affirmed.
[
Footnote 1]
The withdrawal was made under the provision embodied in the
first six lines of Section 3 of the Act of June 17, 1902, c. 1093,
32 Stat. 388.
[
Footnote 2]
The instructions of June 6, 1905, 33 L.D. 607, contained the
following:
"Seventh. When any entry for lands embraced within a withdrawal
under the first form is cancelled by reason of contest, or for any
other reason, such lands become subject immediately to such
withdrawal and cannot thereafter, so long as they remain so
withdrawn, be entered or otherwise appropriated, either by a
successful contestant or any other person; but any contestant who
gains a preferred right to enter any such lands may exercise that
right at any time within thirty days from notice that the lands
involved have been released from such withdrawal and made subject
to entry."
The regulations of May 18, 1916, § 29, 45 L.D. 385, 391,
contained the following:
"Should the land embraced in the contested entry be within a
first-form withdrawal at time of successful termination of the
contest, the preferred right may prove futile, for it cannot be
exercised as long as the land remains so withdrawn, but, should the
lands involved be restored to the public domain or a farm-unit plat
be approved for the lands and announcement made that water is ready
to be delivered, the preference right may be exercised at any time
within 30 days from notice of the restoration or the establishment
of farm units."
And see Wells v. Fisher, 47 L.D. 288, for a statement
and discussion of the department rulings.
[
Footnote 3]
^3.
Brown v. United States, 113 U.
S. 568,
113 U. S. 571;
Webster v. Luther, 163 U. S. 331,
163 U. S. 342;
United States v. Hammers, 221 U.
S. 220,
221 U. S. 228;
Logan v. Davis, 233 U. S. 613,
233 U. S. 627;
LaRoque v. United States, 239 U. S.
62,
239 U. S.
64.