1. This Court will enquire into the facts of a disputed entry of
public land and set aside or correct the decision of a register or
receiver, or of the Commissioner of the General Land Office, as
equity may require.
2. Where a party takes up and resides upon a tract of land
within a quarter section whose limits have been fixed by an
authorized government survey, pays for it and receives his patent
certificate from the proper officers, and by a subsequent survey it
is found that the house of the preemptor is not within the tract
for which he has paid, the Commissioner of the Land Office cannot
for this reason set aside the sale.
3. In such a case, the government is bound by the original
survey.
4. Where the house of a preemptor is built on the line dividing
two quarter sections, his residence in it avails as the foundation
of a preemption right in either.
MR. JUSTICE MILLER.
This is an appeal from a decree of the Circuit Court for the
Northern District of Illinois in which the appellants here were
complainants there.
The subject of the litigation is the legal title to the
southwest part of the northeast fractional quarter of section No.
36, in township No. 18, of range No. 2, west, of the fourth
principal meridian, in the County of Rock Island, Illinois. The
course of the Mississippi River at this point is almost due west,
and that portion of its waters which flows south of the Island of
Rock Island divides the northeast quarter of section 36 into two
parts, one of which, the smaller, is south of the stream, and the
other constitutes a portion of the Island.
The section was surveyed in the year 1833 by Bennett, the
Page 67 U. S. 555
government surveyor, and the survey duly filed in the proper
office. The meanders of the Mississippi River, the quarter section
posts, and the area of the fractional quarters were all given by
the survey. It appeared by it that the south line of the quarter
section impinged upon the river at a point near the center of the
line, and thus divided that part of the quarter which was south of
the river into two separate fractions. The computation of this
survey gave the contents of the east fraction at 1 87/100 acres,
and of the west fraction at 5 17/100 acres. It is this latter
parcel which is in contest. In April, 1839, Thomas Lindsey made
application to the receiver and register of the land office at
Galena to purchase the land, claiming a right of preemption under
the act of 1838 by reason of cultivation and actual residence
thereon, and having established his claim to the satisfaction of
those officers, he received from them on the 3d day of June, 1839,
the proper certificate stating the receipt of the purchase money,
and that, on its presentation to the Commissioner of the General
Land Office, he would be entitled to a patent. Shortly after
receiving this certificate, Thomas Lindsey removed with his family
across the river into Iowa, and died on the 14th September of the
same year, a little more than three months after its date. The
present plaintiffs are his heirs, and were all, at the time of his
death, either minors or
femes covert except James A.
Lindsey. No patent ever issued to Thomas Lindsey or his heirs on
this entry.
In 1845, David Hawes claimed a preemption right under the act of
1841 for the same fractional southwest part of the northeast
quarter of section 36, and in December received the certificate of
the register and receiver that he had purchased and entered it, and
on March 1, 1848, received from the government a patent.
The object of the present suit is to compel from said David
Hawes and the other defendants, who are his grantees, a conveyance
to plaintiffs of the legal title thus obtained by Hawes from the
government.
As Hawes took his patent from the United States with full
knowledge of the certificate previously issued to Lindsey, it
is
Page 67 U. S. 556
quite clear that upon the facts above stated, without more, the
complainants would be entitled to the relief prayed for in their
bill. But the defendant Hawes, who alone has answered, sets up
other facts upon which he relies as a full defense to the claim of
the plaintiffs. There are in the record the depositions of some
forty witnesses, besides letters and other documentary evidence,
all of which have received the careful attention of the Court,
although it will be found that the case must be decided upon a few
facts about the truth of which there is but little conflict. These
will be considered as we progress.
On the 9th August, 1845, James Shields, Commissioner of the Land
Office, set aside the entry of Lindsey, ordered his certificate to
be cancelled, and directed the register and receiver to hear proof
of the right of David Hawes and to adjudicate his claim.
They accordingly heard his proof, and gave him the certificate,
on which he afterwards obtained his patent as before recited. It is
claimed by the counsel of Hawes that this action of the land
officers, including that of the Commissioner, was a conclusive and
final adjudication of the matters now set up in plaintiffs' bill,
and that the courts of law cannot go behind these proceedings to
correct any injustice which may have been done to plaintiffs.
The proposition as thus broadly stated, and as necessarily so
stated by defendant's counsel to avail him in this case, cannot be
conceded. It appears from the evidence before us that the ground on
which the Commissioner set aside the entry of Lindsey was that
there had been a mistake in the survey made by Bennett in 1833, and
that by another survey made by order of the Commissioner in 1844 it
was ascertained that the house in which Lindsey resided when he
made his claim in 1839 was not on the land for which he received
his certificate of entry from the receiver and register.
The order for this new survey emanated from the Commissioner of
the Land Office June 1, 1844, and the survey was actually made in
the autumn of that year, five years after Lindsey's entry, and five
years also after his death, and there is no
Page 67 U. S. 557
proof whatever that any of his heirs had notice of this survey
or of any intention on the part of the Commissioner to set aside
Lindsey's entry; but the whole proceeding was
ex parte. It
is true that subsequently, when the claim of David Hawes to a right
to enter this land came before the register and receiver, James A.
Lindsey seems to have had some kind of notice; but this was given
him in regard to an attempt on his part to enter this land for
himself on a claim of improvement made by himself having, as is
clearly shown, no relation whatever to the right established by his
father, Thomas Lindsey. Nor did the other heirs of Thomas Lindsey
have any notice of the proceedings by which David Hawes established
his claim before the register and receiver. These heirs were not in
any sense parties to any of the proceedings by which the title to
the land which their ancestor had bought of the government, was
vested in David Hawes, and their claim annulled.
Under these circumstances, we have no hesitation in holding that
the action of the officers of the land office was not conclusive
upon their rights, and that a court of equity may inquire into the
proceedings by which the title was vested in Hawes and afford
relief if a proper cause for it is shown to exist. That this is the
settled doctrine of this Court a reference to a few of its
decisions will show.
In the case of
Cunningham v.
Ashley, 14 How. 377, Cunningham appeared before the
receiver and register and claimed the right under the preemption
laws to enter the land which was the subject of controversy. These
officers decided that he had no right to do so and rejected his
claim. He again and repeatedly presented his claim and tendered the
price of the land. His claim received the consideration of the
Commissioner of the Land Office, of the Attorney General, and of
the Secretary of the Treasury, and was finally rejected. The
defendants were permitted to enter the land and receive from the
government patents for it. justice McLean in delivering the opinion
of the Court, says, that this final decision of the Officers of the
Department was the result of twenty years of controversy, and
speaking in reference to the plaintiff's rights, he says:
"They
Page 67 U. S. 558
were paramount to those acquired under the new location. Those
rights were founded on the settlement and improvement in 1821, and
on the acts done subsequently in the prosecution of his claim.
Having done everything which was in his power to do, the law
requires nothing more."
Again:
"So far as the new entries interfered with the right of
complainants, they were void. . . . The officers of the government
are the agents of the law. They cannot act beyond its provisions
nor make compromises not sanctioned by it. The court decreed that
the defendants should convey to Cunningham who had the paramount
equity. In this case, which had been long contested and had
received the consideration of the receiver, register, Commissioner,
Attorney General, and Secretary of the Treasury, all of whom had
concurred in rejecting plaintiff's claim, he had never received any
certificate nor actually paid any money, yet the court held that it
would look into the equities of the case and set aside the acts of
all these officers because they had erred, to use the language of
the court, both as to the law and the facts to the prejudice of
complainant."
In
Barnard's Heirs v. Ashley's
Heirs, 18 How. 43, this Court again decided that it
would inquire into the facts of a disputed entry notwithstanding
the decision of the register and receiver.
But the clearest statement of the rule established by this Court
on this subject is to be found in the case of
Garland v.
Wynn, 20 How. 8. Wynn's entry, which was the elder,
had been set aside, and the money refunded and a patent certificate
awarded to Hemphill, who assigned to Garland, to whom the patent
issued. Wynn brought his suit in equity to compel from Garland the
conveyance of the legal title on the ground that these proceedings
were illegal and that he had the equitable right. Garland insisted
that the circuit court had no authority or jurisdiction to set
aside or correct the decision of the register and receiver, and
that their adjudication was conclusive. MR. JUSTICE CATRON, in
delivering the opinion of the Court, said:
"The general rule is that where several parties set up
conflicting claims to property, with which a special tribunal may
deal, as between one party and government, regardless of the rights
of others,
Page 67 U. S. 559
the latter may come into the ordinary courts of justice and
litigate the conflicting claims. Such was the case of
Comegys v. Vasse, 1 Pet.
212, and the case before us belongs to the same class of
ex
parte proceedings. Nor do the regulations of the Commissioner
of the General Land Office, whereby a party may be heard to prove
his better claim to enter, oust the jurisdiction of the courts of
justice.
We announce this to be the settled doctrine of this
Court."
In
Lyttle v. State of
Arkansas, 22 How. 192, the same member of the
Court, delivering its opinion, says:
"Another preliminary question is presented on this record --
namely whether the adjudication of the register and receiver which
authorized Cloy's heirs to enter the land is subject to revision in
courts of justice, on proof showing that the entry was obtained by
fraud, and the imposition of false testimony on those officers as
to settlement and cultivation. We deem this question too well
settled in the affirmative for discussion."
We are not now disposed to question the soundness of these
decisions, and they clearly dispose of the objection raised by
defendants on this branch of the case.
We now proceed to inquire into the grounds upon which the entry
of Thomas Lindsey was set aside and the application of David Hawes
to enter the same land was allowed. It appears that some five years
after Lindsey's entry was made, upon the suggestion of Silas Reed,
that there was an error in Bennett's survey of this quarter, the
Commissioner ordered a new survey to be made of that section. This
survey was made for the government by George B. Sargent in the fall
of 1844. It differed from the original survey in two particulars --
namely that the southwest fractional quarter was found to contain
13 23/100 acres, instead of 5 7/100, and the south line of the
quarter section was located so far north as to leave the house in
which Lindsey resided when he made his entry entirely south of the
quarter.
The Act of June 22, 1838, under which Lindsey claimed his right
of preemption and made his entry, provides
"That every actual settler of the public lands, being the head
of a family,
Page 67 U. S. 560
over twenty-one years of age, who was in possession, and a
housekeeper, by personal residence thereon at the time of the
passage of this act, and for four months next preceding, shall be
entitled to all the benefits and privileges of an act entitled an
act to grant preemption rights to settlers on public lands."
It is shown by the letter of James Shields, Commissioner of the
General Land Office, dated August 9, 1845, to the register and
receiver at Dixon that Lindsey's entry was set aside by him
because, by the re-survey, Lindsey's house was not on the
fractional quarter in controversy. We are not prepared to admit
that if the second survey be the correct and proper subdivision of
that section into quarters and fractions of quarters, and that by
this survey, though otherwise by the former the house of Lindsey
was found not to be in the fraction preempted by him, the
Commissioner could, for this reason alone, set aside in this
summary manner the sale of the land made by the government to
Lindsay. It is to be remembered that the original survey of Bennett
was the survey of the government; that it was made in 1833; that
the maps, plats, certificates, and field notes were all filed in
the proper office; the survey approved, and that for eleven years,
the government had acted upon and recognized it as valid and
correct, and above all had sold the land to Lindsey by this its own
survey, received the purchase money, and given him a patent
certificate five years before any suggestion was made of this
error. The money thus received by the government has never been
returned, nor do we think it would vary the rights of the parties
if it had been actually tendered to him or his heirs. We are of
opinion, under these circumstances, that so far as the location of
the lines of that quarter section affect the question of the
precise locality of Lindsey's residence, as bearing on his right to
enter that fraction as a preemption, the government was bound by
the original survey of Bennett.
We do not here deny the right of the government which has sold
land by the acre at a fixed price to make a new survey before it
parts with the title, and if there is more land than
Page 67 U. S. 561
was paid for to require the deficiency to be paid before it
issues a patent.
On that subject we decide nothing, because it is not necessary
in this case. Lindsey's heirs were never notified of the additional
number of acres found to be in the fraction, nor were they required
or permitted to pay for this increase.
The language of the act of 1838 already quoted certainly
required of Lindsey that he should have possession, by personal
residence thereon, of the land which he entered, and if he had not
such residence, or rather such possession, the Commissioner was
justified in vacating the entry. But this fact must be determined
on the basis of Bennett's survey.
On this point, a few facts found among the mass of testimony in
the record, about which there is scarcely a dispute, will enable us
to form a just conclusion.
The east and west lines which divide a section into north and
south quarter sections are not usually run out and marked by the
government surveyors, but instead of this, as they run the north
and south lines, they set up on these lines, what they call the
quarter section posts -- that is, they mark the points where this
line should begin and end. When Lindsey was about to make his
preemption claim, in order to ascertain whether he resided on this
fraction, he procured the County Surveyor of Rock Island County to
come and run this quarter section line. Several of the witnesses
who were present when this survey was made have testified in the
case, and C. H. Stoddard, a practical surveyor of intelligence and
candor, as shown by his testimony, also made a survey from
Bennett's field notes since this suit was instituted. Some of the
persons present when the survey was made by Baxter, the Surveyor of
Rock Island County, looked through the compass and observed where
the line struck Lindsey's house, and a notch was made on his stone
chimney where the line was seen to touch it, which was there when
the depositions were taken in this suit, and was identified by
witnesses who saw it made. The fair result of all the testimony on
this point is that the house in which Lindsey resided was directly
on this line, which would intersect the house so as to
Page 67 U. S. 562
throw perhaps the larger part on the other quarter, and a part
something less than half into this quarter.
It is proved that he had another building on this fraction
wholly, which is sometimes spoken of as his stable and sometimes as
a blacksmith shop, in which he worked at that trade. It is also
shown that the ground cultivated by him was exclusively on this
fraction, and the proof of its cultivation and enclosure is quite
clear. On these facts, was he within the meaning of the statute, in
possession of this fraction by personal residence thereon?
The counsel for appellees has made a vigorous argument in
support of the negative of this question. Assuming that Lindsey
could not have a residence on both the northeast and southeast
quarter sections at one time, and claiming that the case is to be
governed by the analogies of a question of domicil in a case of
conflicting jurisdictions, he has made an apparently strong case
out of the fact that the larger portion of the house is on the
south side of the line.
This, however, is not a case of domicil under different
governments or conflicting jurisdictions. It is a question arising
under the government of the United States, and concerns a
construction of one of its most benevolent statutes, made for the
benefit of its own citizens, inviting and encouraging them to
settle upon its public lands. The government which made the law
owned both quarter sections, and was indifferent as to which should
be sold to Lindsey, provided it was legally done. Lindsey's house
was on both quarter sections. He lived or resided in all that
house. So far as mere personal residence is concerned, we think he
may be correctly said to have resided on both quarter sections. The
law only required that he should personally reside on the quarter
which he claimed to enter, and if he resided on both, then clearly
he resided on this one.
But the language of the act makes possession the principal
matter, and personal residence the qualifying matter. Leaving out
the word "housekeeper," which is not in question, the qualification
of a person who can preempt under the act is one "who was in
possession by personal residence thereon." Now
Page 67 U. S. 563
that Lindsey was in possession is shown by his stable or
blacksmith shop, by his enclosure and cultivation of the ground, or
a part of it. When in addition to these facts a considerable part
of the house in which he and his family lived was also on this
little five-acre piece of ground, may it not be said that he had
possession of it by personal residence thereon?
We are of opinion that on the true construction of the statute,
he had. It follows from what we have said that the patent
certificate issued to Thomas Lindsey was rightfully issued by the
receiver and register, that the act of the Commissioner in setting
it aside was illegal, and did not destroy the right thus vested,
that the land was not subject to entry by David Hawes, and that the
patent obtained by him was wrongfully and illegally issued to him,
and that the plaintiffs are entitled to a conveyance of the legal
title from him and his co-defendants.
The decree of the circuit court is therefore reversed and
the case remanded to that court with instructions to enter a decree
in conformity with this opinion.