1. The term "settlement" is used in the Homestead Law as
comprehending acts done on the land by way of establishing, or
preparing to establish, an actual personal residence -- going
thereon and, with reasonable diligence, arranging to occupy it as a
home to the exclusion of one elsewhere. P. 270 U. S.
2. One who actually settles on public lands in an honest effort
to acquire a home under the Homestead Law should be dealt with
leniently, and not subjected to the loss of his toil and efforts
through any mistake or neglect of the officers or agents of the
3. But this rule does not excuse substantial failures to comply
with the requirements respecting the initiation of such a claim or
Page 270 U. S. 540
to it a preference over other claims lawfully acquired and prior
in time. P. 270 U. S.
4. A selection of unsurveyed land, duly made by a railroad
company pursuant to an Act of Congress (Aug. 8, 1892, 27 Stat.
390), giving it a legal right to select such lands "to which no
adverse right to claim shall have attaches or have been initiated
at the time of making such selection," in lieu of others
relinquished to the United States, takes precedence over a later
homestead claim. P. 270 U. S.
5. Before the filing of a railroad selection under the Act of
Aug. 8, 1892, supra,
for part of the tract, a person with
the qualifications prescribed by the homestead law, visited, for a
few hours, an unsurveyed quarter section of unappropriated public
land, blazed a trail around it, and posted notices that he claimed
it as a homestead, and visited it again five months later and
devoted a day to blazing a trail from an adjacent stream to the
nearest corner, and to cutting some poles and laying them in the
semblance of a cabin foundation. After the filing of the selection,
he visited the land once or twice a year for several years
thereafter while on hunting trips, and renewed his notice, and
thereafter sold his claim. From the time he first went on the land,
and continuously to the time he sold, he was residing with his wife
and children at a place a few miles distant, maintaining a home
there. His intention throughout was to "hold" the quarter section,
expecting some day to go and live upon it. Held
did not make a bona fide
settlement, and that his acts did
not amount to the initiation of a claim within the meaning of the
Homestead Law or the Act of Aug. 8, 1892, supra.
128 Wash. 312 reversed.
Certiorari to a judgment of the Supreme Court of Washington
which affirmed a judgment for the plaintiff, Reed, in a suit to
have the railway company declared trustee for him of land patented
to it by the United States, and to compel a conveyance in discharge
of the trust.
Page 270 U. S. 541
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was a suit in a state court in Whatcom County, Washington,
against the Great Northern Railway Company to have it declared a
trustee for the plaintiff of the title to a quarter-quarter section
of land theretofore patented to it by the United States, and to
compel a conveyance in discharge of the trust. The company, in its
answer, denied much that was alleged in the complaint, and sought a
decree quieting the title. On the trial, the plaintiff prevailed,
and the supreme court of the state affirmed the decree. Reed v.
Great Northern R. Co.,
126 Wash. 312.
The suit involved a conflict between a railroad lieu selection
and an asserted homestead settlement. The evidence on the material
issues was so direct and free from contradiction that the real
controversy was over the application of federal statutes to facts
conceded or definitely established.
The Great Northern Railway Company is the successor in interest
of the St. Paul, Minneapolis & Manitoba Railway Company, which
constructed and put in operation certain lines of railroad in the
State of Minnesota and the Territory of Dakota, and thereby became
entitled under an early land grant by Congress to particular lands
along those lines. The land officers of the United States denied
the company's right to the lands along the lines in Dakota, and
treated those lands as open to settlement, entry, and disposal
under the public land laws. In 1890, this Court pronounced the
action of the land officers erroneous, and sustained the right of
the railway company to the Dakota lands. St. Paul, Minneapolis
& Manitoba Ry. Co. v. Phelps, 137 U.
. In the meantime, many of the lands had come to
be occupied and improved by persons who had made entries or
purchases of them as public lands under the ruling of the
Page 270 U. S. 542
land officers. To correct the resulting wrong to both the
company and the individual claimants, Congress, by the Act of
August 5, 1892, c. 382, 27 Stat. 390, requested the company to
relinquish its right to such lands to the end that the United
States might invest the individual claimants with a good title, and
declared that the company, on executing the relinquishment, should
be entitled to select and receive other lands in equal quantity.
The company complied with that request, and thus became entitled as
matter of legal right, and not of grace, to select and receive
other lands conformably to the terms of the Act. Shortly described,
the Act provided that the selections might be made within any of
the states "into or through which the railway owned by said railway
company runs" -- Washington being one -- from the nonmineral,
unreserved public lands therein, "to which no adverse right or
claim shall have attached or have been initiated at the time of the
making of such selection;" that not exceeding 640 acres should be
selected in a single body; that the mode of selection should be by
filing descriptive lists in the land offices for the districts
where the selected tracts lay and paying the usual fees of the
local land officers; that selection might be made of tracts while
yet unsurveyed, in which event they should be described in the list
with a reasonable degree of certainty, [Footnote 1
] and should be designated according to the
survey in a supplemental list within three months after the plat of
the survey was filed in the local office, and that, on the approval
of any list by the Secretary of the Interior, [Footnote 2
] the tracts selected therein should be
patented to the company.
Page 270 U. S. 543
The railway company selected the quarter-quarter in question May
5, 1902, while it was unsurveyed, by filing a suitable list in the
proper local land office and paying the officers' fees, and it duly
supplemented that list by another designating the tract according
to the survey within a few days after the plat of the survey was
filed in the local office, which was on February 6, 1907. The lists
were transmitted by the local officers to the General Land Office
and laid before the Secretary of the Interior. He approved them,
and, on April 13, 1908, a patent was issued to the company.
The tract was open to selection, and was duly selected and
rightly patented, if at the time of the selection -- May 5, 1902 --
a homestead claim to the land had not been initiated by the acts
about to be stated. The plaintiff contended that such a claim had
been initiated, and the courts below so held.
In September or October, 1901, W. J. Tincker, who possessed the
qualifications named in the homestead law, went to the quarter
section which includes this quarter-quarter, blazed a line around
the larger tract, and posted notices at its four corners declaring
that he claimed it as a homestead. He was there on that occasion
two or three hours. In March, [Footnote 3
] 1902, he went to the quarter section again,
blazed a trial from an adjacent stream to the nearest corner, cut a
few poles, and with these laid what appeared to be a cabin
foundation two or three poles high. The trial did not touch the
quarter-quarter here in question, nor was the pole foundation
placed on it. Tincker was there on that occasion for a longer time
than before, probably the greater part of a working day. That is
all that was done by him prior to the company's selection.
Thereafter he went to the quarter section once
Page 270 U. S. 544
or twice a year, usually on hunting trips, but did nothing there
beyond renewing his notices at the corners. In August, 1906, he
sold his so-called possessory claim and improvements. When he first
went to the land, and continuously to the time he sold, he was
residing, with his wife and children at Maple Falls, a few miles
from the land, and was maintaining a home there. At the trial, he
was a witness for the plaintiff, and testified that his intention
throughout that period was "to hold" the quarter section,
"expecting some day to go up there and live on it."
Tincker sold to W. M. Smithey, who three months later sold to
the plaintiff. The last was the only one of the three who made any
attempt at establishing a residence on the quarter section. In
November, 1906, he did establish a residence on a part of it not
here in question, and, after the survey, he sought and secured a
homestead entry on that part at the local land office. He also
sought to have the part here in question included in that entry,
but failed. 41 L.D. 375. He had no right to have it included unless
Tincker's acts prior to the company's selection amounted to the
initiation of a homestead claim, and thereby excepted the tract
from the class of lands open to selection.
In the company's selection list and supporting affidavit,
nothing was said about Tincker's acts, not improbably because the
selecting agent knew nothing about them, and found nothing on or in
the vicinity of the quarter-quarter indicative of a homestead
settlement or occupancy. When the plaintiff, in 1907, applied to
make his homestead entry and to include this quarter-quarter
therein, he based his application on his own settlement in
November, 1906, and said nothing about a prior claim by Tincker.
That was the situation when the patent issued to the company.
Afterwards, the plaintiff requested that a suit be brought by the
United States to cancel the
Page 270 U. S. 545
patent on the grounds that the company, in making its selection,
had not disclosed Tincker's acts, and that the land officers issued
the patent without knowledge of those acts; but the Secretary of
the Interior declined to recommend such a suit. The plaintiff
brought the present suit in his own right in 1919 -- 11 years after
the issue of the patent, during all of which the company had been
regularly paying state and county taxes on the tract.
The homestead law -- putting aside special provisions without
bearing here -- accords to every person of stated qualifications
the privilege of acquiring title to a quarter section, or less, of
"unappropriated public lands" by settling thereon and continuously
residing on, improving, and cultivating the same for a prescribed
period. The original law was confined to surveyed lands, and
required that the claims be initiated by an entry made at the local
land office, which was to be followed within a reasonable time by
actual settlement, residence, etc. Act May 20, 1862, c. 75, §§ 1,
2, 12 Stat. 392; Rev.Stat. §§ 2289, 2290, as amended by Act March
3, 1891, c. 561, § 5, 26 Stat. 1098. Afterwards, a provision was
added permitting claims to be initiated, as respects either
surveyed or unsurveyed lands, by settlement, and providing, where
that was done, that record entry should be sought within three
months after settlement if the land was surveyed, or, if
unsurveyed, within a like period after the survey was made and the
plat was filed in the local office. Act of May 14, 1880, c. 89, §
3, 21 Stat. 140. The term "settlement" is used as comprehending
acts done on the land by way of establishing or preparing to
establish an actual personal residence -- going thereon and, with
reasonable diligence, arranging to occupy it as a home to the
exclusion of one elsewhere. The law makes it plain that there must
be a definite purpose "in good faith to obtain a home" by
proceeding "faithfully and honestly" to comply with "all the
requirements." And the decisions made and instructions
Page 270 U. S. 546
issued by the officers charged with its administration show that
they uniformly have taken the position that a claim cannot be
initiated by asserted acts of settlement which are only colorable
and done with a purpose to hold the land for speculation, or while
maintaining an actual residence elsewhere. [Footnote 4
] The instructions say:
"Settlement is initiated through the personal act of a settler
placing improvements on the land or establishing a residence
thereon. . . . When settlement is made on unsurveyed lands, the
settler must plainly mark the boundaries of all land claimed.
Within a reasonable time after settlement, actual residence must be
established on the land and continuously maintained."
The decisions of this Court have established the principle that
one who, in response to the invitation in the homestead law,
actually settles on the public lands in an honest effort to acquire
a home should be dealt with leniently, and not subjected to the
loss of his toil and efforts through any mistake or neglect of the
officers or agents of the government. Ard v. Brandon,
156 U. S. 537
156 U. S. 543
Northern Pacific R. Co. v. Amacker, 175 U.
, 175 U. S. 567
Tarpey v. Madsen, 178 U. S. 215
178 U. S. 220
Nelson v. Northern Pacific Ry. Co., 188 U.
, 188 U. S.
Page 270 U. S. 547
Oregon & California R. Co. v. United States (No.
1),, 189 U. S. 103
189 U. S. 114
St. Paul, Minneapolis & Manitoba Ry. Co. v. Donohue,
210 U. S. 21
210 U. S. 33
But its decisions also show that this salutary rule does not excuse
substantial failures to comply with the requirements respecting the
initiation of such a claim, or accord to it a preference over other
claims lawfully acquired and prior in time. Maddox v.
Burnham, 156 U. S. 544
156 U. S. 548
Northern Pacific R. Co. v. Amacker, supra; Weyerhaeuser v.
Hoyt, 219 U. S. 380
219 U. S. 387
et seq.; Northern Pacific Ry. Co. v. Wass, 219 U.
; Svor v. Morris, 227 U.
, 227 U. S. 527
Northern Pacific Ry. Co. v. Houston, 231 U.
The supreme court of the state rightly recognized that the
plaintiff's claim was initiated long after the company's selection
at the local land office, and therefore that the real question was
whether Tincker's asserted acts prior to that selection amounted to
the initiation of a homestead claim. If they did, the tract in
dispute was not subject to selection under the Act of 1892;
otherwise it was. The important words of the Act are public lands
"to which no adverse right or claim shall have attached or have
been initiated at the time of the making of such selection." The
supreme court of the state held that Tincker's acts "were not
sufficient to initiate a bona fide
concluded with some hesitation that they nevertheless took the
tract out of the class of lands subject to selection.
We agree that Tincker did not make a bona fide
settlement, and we are further of opinion that his acts fell so far
short of such a settlement that they did not amount to the
initiation of a claim in any admissible view of the homestead law
or the Act of 1892. He did nothing indicative of a present purpose
to establish a home on the quarter section. He started no real
improvements, made no preparations for living there, did not
attempt to reside there, and did not take his family there, but
confined himself to minor acts calculated merely to deter others
Page 270 U. S. 548
initiating claims. In the seven or eight months preceding the
company's selection, he was on the land but twice -- less than a
day each time. His subsequent conduct, if we turn to it, is equally
persuasive that he was without a present purpose to make the place
a home. He merely visited it once or twice a year, usually on
hunting trips, and on those visits only renewed the notices
intended to deter others. Considering what he did and his testimony
that he was expecting, from his first trip in 1901 to his sale in
1906, that "some day" he would go there to live, we think it
apparent that his asserted settlement, even if not a myth in his
own mind, fell pronouncedly short of satisfying the requirements of
the homestead law in respect of the initiation of a claim, and so
did not except the quarter-quarter in question from the company's
right of selection under the act of 1892. He endeavored in his
testimony to attribute his omissions to a temporary withdrawal of
the land and the surrounding area pending an inquiry as to whether
they should be included in an existing forest reserve. But that
withdrawal -- it later was revoked -- could not have been a factor
in the matter, because the withdrawal order, when produced in
evidence, disclosed that it was made more than a year after his
asserted settlement and more than six months after the company's
selection, and that it contained a provision declaring that
settlements and valid claims were not affected
If, while maintaining a home at Maple Falls, Tincker could
initiate a homestead claim by acts such as are disclosed here, and
thus hold the land against others desiring to initiate claims, the
way was open for him similarly to make a colorable appropriation of
many tracts in that timber region, and thus to exact tribute from
intending settlers and claimants. His acts, if effective against
the company's right of selection, would be equally an obstacle to
the initiation of homestead settlement claims,
Page 270 U. S. 549
which is admissible only in respect of unappropriated public
The state court regarded its conclusion as deriving some support
from cases in this Court, but we think the cases cited are not
susceptible of that interpretation. All are cases where the
individual claim which operated to defeat the railroad claim or
selection was prior in time, and had been initiated either by an
entry at the land office or by an actual bona fide
settlement. Kansas Pacific Railway Co. v. Dunmeyer,
113 U. S. 629
St. Paul, Minneapolis & Manitoba Ry. Co. v. Donohue,
210 U. S. 21
typical of all. In both a homestead claim prior in time was
involved. In the first, it had been initiated by an entry at the
land office, and in the second by actual settlement and occupancy
in good faith. In both, it was in existence when the right of the
railroad company became fixed, if fixed at all, and the ruling was
that such a claim existing at that time excepted the land, from the
company's grant in one case and from its right of lieu selection in
the other, and that a subsequent abandonment, relinquishment, or
failure to comply with the law on the part of the homestead
claimant neither obviated the exception nor entitled the company to
the land, under the grant in one case and the selection in the
other. We perceive nothing in either case which makes for the view
that acts which fall far short of initiating a claim in either mode
work such an exception.
The selection in St. Paul, Minneapolis & Manitoba Ry.
Co. v. Donohue
was under the Act of 1892, now before us, and
was of unsurveyed land. When it was made, a qualified claimant, who
had settled theretofore and given notice of the extent of his
claim, was residing on, occupying, and improving the land and in
good faith conforming to the homestead requirements. Subsequently
he died, and his mother, as sole heir, sold his possessory claim
and improvements to Donohue, who made a timber
Page 270 U. S. 550
and stone entry of the land after the survey. This Court, after
carefully pointing out that the homestead claim was lawfully
initiated, held that the land was excepted from the right of
selection, and therefore that the selection was of no avail. Most
of the discussion in the opinion was to no purpose if, as is
contended here, it was immaterial whether the homestead claim was
initiated in substantial conformity to the homestead
A selection of unsurveyed land under the same Act was involved
in Great Northern Ry. Co. v. Hower, 236 U.
, and was sustained against an asserted prior
homestead claim on the ground that, while the claimant had put a
small barn on the tract and had cut a trail across it prior to the
selection, he had never resided thereon, or shown any purpose to do
so, but had been maintaining a home on other land not even
contiguous to it.
case and the Hower
together, illustrate the principle of prior cases, and show how it
should be applied here.
See West v. Rutledge Timber Co., 244 U. S.
, 244 U. S. 98
Rutledge Timber Co. v. Farrell, 255 U.
See Weyerhaeuser v. Hoyt, 219 U.
, 219 U. S. 387
Payne v. New Mexico, 255 U. S. 367
255 U. S. 370
Wyoming v. United States, 255 U.
, 255 U. S.
He testified: "It was about March, as near as can get at it --
between February and May."
Amley v. Sando, 2 L.D. 142; McLean v. Foster, 2 L.D. 175;
Seacord v. Talbert, 2 L.D. 184; Howdon v. Piper, 3 L.D. 162; Witter
v. Rowe, 3 L.D. 449; Atterbery's Case, 8 L.D. 173; Fuller v.
Clibon, 15 L.D. 231, 233; Northern Pacific R. Co. v. Grimes, 24
L.D. 452; Hastings and Dakota Ry. Co. v. Griffinden, 27 L.D. 137;
O'Brien v. Chamberlin, 29 L.D. 218; Meyer v. Northern Pacific Ry.
Co., 31 L.D.196; Chainey's Case, 42 L.D. 510; Lias v. Henderson, 44
L.D. 542; Instructions of May 25, 1880, 2 Copp's P.L.L. 510;
General Circular of March 1, 1884, p. 11 et seq.;
Circular of January 1, 1889, p. 13 et seq.;
Circular of January 25, 1904, p. 14; Suggestions to Homesteaders,
37 L.D. 639, 640; 40 L.D. 42; 43 L.D. 3; 44 L.D. 93; 48 L.D. 391.
And see United States v. Mills,
190 F. 513, 516;
Bratton v. Cross,
22 Kan. 673; Mosely v.
71 Cal. 318; Small v. Rakestraw,
196 U. S. 403