1. Whenever, in the disposition of the public lands, any action
is required to be taken by an officer of the Land Department, all
proceedings tending to defeat such action are impliedly inhibited.
Accordingly, where an act of Congress of 1812 directed a survey to
be made of the outboundary line of the Village of Carondelet in the
State of Missouri so as to include the commons claimed by its
inhabitants, and a survey made did not embrace all the lands thus
claimed, the lands omitted were reserved from sale until the
approval of the survey by the Land Department, and the validity of
the claim to the omitted lands was thus determined.
2. Where a state seeks to select lands as a part of the grant to
it by the eighth section of the Act of Congress of Sept. 4, 1841,
and a settler seeks to acquire a right of preemption to the same
lands, the party taking the first initiatory step, if the same is
followed up to patent, acquires the better right to the premises.
The patent relates back to the date of the initiatory act and cuts
off all intervening claimants.
3. The eighth section of the Act of Sept. 4, 1841, in
authorizing the state to make selections of land, does not
interfere with the operation of the other provisions of that act
regulating the system of settlement and preemption. The two modes
of acquiring title to land from the United States are not in
Page 91 U. S. 331
conflict with each other. Both are to have full operation, that
one controlling in a particular case under which the first
initiatory step was had.
4. Whilst, according to previous decisions of this Court, no
vested right in the public lands as against the United Stales is
acquired until all the prerequisites for the acquisition of the
title have been complied with, parties may, as against each other,
acquire a right to be preferred in the purchase or other
acquisition of the land, when the United States have determined to
sell or donate the property. In all such cases, the first in time
in the commencement of proceedings for the acquisition of the
title, when the same are regularly followed up, is deemed to be the
first in right.
5. Where a party has settled upon public land with a view to
acquire a right of preemption, the land being open to settlement,
his right thus initiated is not prejudiced by a refusal of the
local land officers to receive his proofs of settlement upon an
erroneous opinion that the land is reserved from sale.
6. The rulings of the Land Department on disputed questions of
fact, made in a contested case as to the settlement and
improvements of a preemption claimant, are not open to review by
the courts when collaterally assailed.
7. The officers of the Land Department are specially designated
by law to receive, consider, and pass upon proofs presented with
respect to settlements upon the public lands, with a view to secure
rights of preemption. If they err in the construction of the law
applicable to any case, or if fraud is practiced upon them, or they
themselves are chargeable with fraudulent practices, their rulings
may be reviewed and annulled by the courts when a controversy
arises between private parties founded upon their decisions. But
for mere errors of judgment upon the weight of evidence in a
contested case before them, the only remedy is by appeal from one
officer to another of the department, and perhaps, under special
circumstances, to the President.
The facts are stated in the opinion of the Court.
MR. JUSTICE FIELD delivered the opinion of the Court.
This is a suit in equity brought, according to the practice
obtaining in Missouri, to settle the conflicting claims of the
parties, arising from their respective patents, to a fractional
section of land comprising thirty-seven acres and two-fifths of an
acre, situated in that state. The plaintiffs assert title to the
premises under a patent issued to William M. McPherson by the
governor of the state bearing date on the 27th of February, 1850,
purporting to be for lands selected under the eighth section of the
Act of Congress of Sept. 4, 1841, entitled "An act to appropriate
the proceeds of the sales of the public
Page 91 U. S. 332
lands, and to grant preemption rights," 5 Stat. 453, and the
defendants claim title to the premises under a patent of the United
States bearing date on the 21st of July, 1866, issued to the heirs
of Thomas Chartrand upon an alleged preemption right acquired by a
settlement of their ancestor.
The eighth section of the Act of Sept. 4, 1841, declared that
there should be granted to each state specified in its first
section -- and among them was the State of Missouri -- five hundred
thousand acres of land for purposes of internal improvement, the
selection of the land in the several states to be made within their
respective limits in such manner as the legislatures thereof should
direct, but in parcels conformably to sectional divisions and
subdivisions of the public surveys, and of not less than three
hundred and twenty acres in each, from any public land except such
as was or might be reserved from sale by any law of Congress or
proclamation of the President. Several acts were passed by the
Legislature of Missouri for the selection and disposition of the
land thus granted. One of them, passed on the 10th of March, 1849,
Laws of Missouri of 1849, p. 64, authorized the governor of the
state to dispose, at private sale, of so much of the land as then
remained to be selected and to issue to the purchasers certificates
empowering them to locate the quantity purchased, in conformity
with the Act of Congress. The purchasers were to inform the
governor of the lands selected, and he was to notify the Secretary
of the Treasury that the selections were made for the state, and,
if approved by the Secretary, patents were to issue to the
purchasers.
Where the land selected in any instance contained less then
three hundred and twenty acres, the governor was required, upon the
request of the purchaser and upon payment for the full amount, to
relinquish the surplus to the United States. Of the certificates
thus issued, one was held by William M. McPherson, and under it a
selection was made by him of the premises in controversy. Of this
selection the governor of the state informed the Secretary of the
Treasury on the 15th of December, 1849, and requested his approval
of it, at the same time relinquishing to the United States the
surplus between the amount selected and three hundred and twenty
acres. At
Page 91 U. S. 333
that time, the supervision of the Land Office had been
transferred from the Secretary of the Treasury to the Secretary of
the Interior, whose department was created in March of that year.
The selection of McPherson was accordingly brought to the latter's
attention, and was approved by him on the 17th of January
following, subject, however, to any rights which may have existed
at the time the selection was made known to the land officers by
the agent of the state. On the 27th of February following, a patent
of the State of Missouri for the premises was issued to McPherson
by the governor. Upon the title thus conferred the plaintiffs
repose, and ask judgment in their favor.
In considering the validity of this title, the first question
for solution is whether the premises were then open to selection by
the state, for whether the eighth section of the Act of 1841 be
construed as conferring a grant
in praesenti, operating to
vest the title in the state upon the selection of the land pursuant
to its directions, notwithstanding the words of grant used are in
the future tense -- in that respect resembling the grant of the
State of North Carolina to General Greene, which was the subject of
consideration by this Court in the case of
Rutherford v.
Greene's Heirs, reported in the 2d of Wheaton -- or whether
the section be considered as giving only the promise of a grant,
and therefore requiring further legislation or further action in
some form of the government to vest the title of the land selected
in the state, as held, or rather implied, by the decision in the
case of
Foley v. Harrison, reported in the 15th of Howard,
the same result must follow if the land were not at the time open
to selection. If not thus open, the whole proceeding on the part of
McPherson and the governor of the state to appropriate the land was
ineffectual for any purpose. That the land was not thus open we
think there is no doubt. The land was then claimed as part of the
commons of Carondelet. The villages of St. Louis and Carondelet, on
the acquisition of Louisiana in 1803 and for many years previously,
claimed as commons certain lands adjoining their respective
settlements. Those of St. Louis extended south of the village of
that name, those of Carondelet to the north of its village, and a
well known line was generally recognized
Page 91 U. S. 334
as the boundary separating the commons of the two villages. That
line commenced on the bank of the Mississippi at what is known as
Sugarloaf Mound, about four miles south of the settlement of St.
Louis, and two miles north of that of Carondelet, and ran westerly
to the common fields of Carondelet. It was contended, in the
controversy which subsequently arose between the Cities of St.
Louis and Carondelet, that this line had been surveyed and marked
by Soulard, a Spanish surveyor, previous to 1800, by order of the
lieutenant-governor of the upper province of Louisiana. Be that as
it may, it is clear that from the acquisition of the country until
June 13, 1812, the land south of this line was claimed and used by
the inhabitants of Carondelet as within their commons. On that day,
Congress passed an act confirming to the inhabitants of these
villages their claims to their common lands. 2 Stat. 748. The act
was a present operative grant of all the interest of the United
States in the property used by the inhabitants of the villages as
their commons, but it did not refer to the line mentioned or
designate any boundary of the commons, but left that to be
established by proof of previous possession and use. The act at the
same time made it the duty of the deputy surveyor of the territory
to survey the outboundary lines of the villages so as to include
the commons respectively belonging to them and make out plats of
the surveys and transmit them to the surveyor general, by whom
copies were to be forwarded to the Commissioner of the General Land
Office and the recorder of land titles. No survey appears to have
been made, as here directed, of the outboundary line of the Village
of Carondelet until the year 1816, but its inhabitants claimed
under the act the ownership and title of the land as part of their
commons, up to the line mentioned on the north, as the same had
been claimed and used by them previously. In 1816 or 1817, Elias
Rector, a deputy surveyor, under instructions from his superior,
made a survey of the commons, running the upper line about a mile
below the line alleged to have been established by Soulard. Some
years afterwards (in 1834), another deputy surveyor by the name of
Joseph C. Brown, was ordered by the surveyor general to retrace and
mark anew the lines of this survey and connect
Page 91 U. S. 335
them with the surveys of adjoining public lands and private
claims. This was accordingly done by him, and it would seem by
various proceedings of the authorities of Carondelet that the
survey thus retraced was at one time acquiesced in by them as a
determination of the boundaries of their commons. They had a copy
of it framed for the benefit of the town, and they introduced it in
several suits with different parties as evidence of the extent of
their claim. But at another time they denied the correctness of its
northern line, which they insisted should be coincident with that
alleged to have been run by Soulard. When St. Louis, in 1836,
proceeded to subdivide her commons into lots down to the line of
the survey, they gave notice through a committee that the lands
below the alleged Soulard line were claimed as part of their
commons, and in 1855 Carondelet entered a suit against St. Louis
for the possession of those lands. In the meantime, the matter
remained undetermined in the Land Department at Washington until
the 23d of February of that year. During this period, the
Commissioner of the General Land Office repeatedly informed the
local land officers that the tract was reserved from sale because
it was claimed as part of the Carondelet commons, and on that
ground their refusal to receive proofs of settlement from parties
seeking to acquire a right of preemption was approved, and
appropriate entries stating such reservation were made in the books
of those officers. At one time (January, 1852), the Secretary of
the Interior decided to have a new survey of the commons, and gave
orders to that effect. The Surveyor General for Missouri having
asked instructions as to the manner of the survey and stating that,
in his opinion, the new survey should include the land in
controversy, the Secretary then in office, the successor of the one
who had ordered a new survey, reexamined the whole subject and
recalled the direction for a new survey made by his predecessor,
and held that as the surveys of 1816 and 1834 had been executed by
competent authority and approved, and were for years acquiesced in
by the inhabitants of Carondelet, both they and the government of
the United States were estopped and concluded by them, and that in
consequence the survey of 1816, as retraced in 1834, should be
sustained, excluding therefrom
Page 91 U. S. 336
a tract which had been reserved for a military post. This was
the final determination of the boundaries of the Carondelet commons
by that department of the government to which the supervision of
surveys of public grants was entrusted. A few days before this
determination was announced, the suit mentioned, of the City of
Carondelet against the City of St. Louis, was commenced to obtain
possession of the lands below the Soulard line, over a portion of
which the St. Louis commons had been extended. That suit was
finally disposed of by the judgment of this Court in March, 1862,
affirming that of the supreme court of the state, to the effect
that both the government and Carondelet were concluded by the
surveys stated.
The act of 1812 contemplated that the outboundary line of the
village would be surveyed so as to include the commons claimed, in
accordance with the possession of the inhabitants previous to 1803,
and not arbitrarily, according to the caprice of the surveyor, and
any line run by him was subject, like all other surveys of public
grants, to the supervision and approval of the Land Department at
Washington. Until surveyed and the survey was thus approved, the
land claimed by Carondelet was, by force of the act requiring the
survey and the establishment of the boundaries, necessarily
reserved from sale. It was thus reserved to be appropriated in
satisfaction of the claim, if that should be ultimately sustained.
Whenever in the disposition of the public lands any action is
required to be taken by an officer of the Land Department, all
proceedings tending to defeat such action are impliedly inhibited.
The allowance of selections by the states or of preemptions by
individuals of lands which might be included within grants to
others might interfere, and in many instances would interfere, with
the accomplishment of the purposes of the government. A sale is as
much prohibited by a law of Congress, when to allow it would defeat
the object of that law, as though the inhibition were in direct
terms declared. The general rule of the Land Department is, and
from the commencement of the government has been, to hold as
excluded from sale or preemption lands which might, in the
execution of the laws of Congress, fall within grants to others,
and therefore, in this case, until it was decided by the final
determination of the Secretary of the Interior
Page 91 U. S. 337
or of the Supreme Court of the United States whether the
northern line of the commons was that run, as alleged, by Soulard
previous to 1800 or that retraced by Brown in 1834, the land
between those lines, embracing the premises in controversy, was
legally reserved from sale, and consequently from any selection by
the state as part of its five hundred thousand acres granted by the
Act of Sept. 4, 1841.
But there is another view of this case which is equally fatal to
the claim of the plaintiffs. If the land outside of the survey as
retraced by Brown in 1834 could be deemed public land, open to
selection by the State of Missouri from the time the survey was
returned to the Land Office in St. Louis, it was equally open from
that date to settlement and consequent preemption by settlers. The
same limitation which was imposed by law upon settlement was
imposed by law upon the selection of the state. In either case, the
land must have been surveyed, and thus offered for sale or
settlement. The party who takes the initiatory step in such cases,
if followed up to patent, is deemed to have acquired the better
right as against others to the premises. The patent which is
afterwards issued relates back to the date of the initiatory act
and cuts off all intervening claimants. Thus the patent upon a
state selection takes effect as of the time when the selection is
made and reported to the Land Office, and the patent upon a
preemption settlement takes effect from the time of the settlement
as disclosed in the declaratory statement or proofs of the settler
to the register of the local Land Office. The action of the state
and of the settler must, of course, in some way be brought
officially to the notice of the officers of the government having
in their custody the records and other evidences of title to the
property of the United States before their respective claims to
priority of right can be recognized. But it was not intended by the
eighth section of the Act of 1841, in authorizing the state to make
selections of land, to interfere with the operation of the other
provisions of that act regulating the system of settlement and
preemption. The two modes of acquiring title to land from the
United States were not in conflict with each other. Both were to
have full operation, that one controlling in a particular case
under which the first initiatory step was had.
Page 91 U. S. 338
Nor is there anything in this view in conflict with the
doctrines announced in
Frisbie v.
Whitney, 9 Wall. 187, and the
Yosemite
Valley Case, 15 Wall. 77. In those cases, the Court
only decided that a party, by mere settlement upon the public lands
with the intention to obtain a title to the same under the
preemption laws, did not thereby acquire such a vested interest in
the premises as to deprive Congress of the power to dispose of the
property; that notwithstanding the settlement, Congress could
reserve the lands for sale whenever they might be needed for public
uses, as for arsenals, fortifications, lighthouses, hospitals,
custom houses, courthouses, or other public purposes for which real
property is required by the government; that the settlement, even
when accompanied with an improvement of the property, did not
confer upon the settler any right in the land as against the United
States or impair in any respect the power of Congress to dispose of
the land in any way it might deem proper; that the power of
regulation and disposition conferred upon Congress by the
Constitution only ceased when all the preliminary acts prescribed
by law for the acquisition of the title, including the payment of
the price of the land, had been performed by the settler. When
these prerequisites were complied with, the settler for the first
time acquired a vested interest in the premises of which he could
not be subsequently deprived. He was then entitled to a certificate
of entry from the local land officers and ultimately to a patent of
the United States. Until such payment and entry, the acts of
Congress gave to the settler only a privilege of preemption in case
the lands were offered for sale in the usual manner -- that is, the
privilege to purchase them in that event in preference to
others.
But whilst, according to these decisions, no vested right as
against the United States is acquired until all the prerequisites
for the acquisition of the title have been complied with, parties
may, as against each other, acquire a right to be preferred in the
purchase or other acquisition of the land when the United States
have determined to sell or donate the property. In all such cases,
the first in time in the commencement of proceedings for the
acquisition of the title, when the same are regularly followed up,
is deemed to be the first in right. So in this case, Chartrand, the
ancestor, by his previous settlement in 1835
Page 91 U. S. 339
upon the premises in controversy, and residence with his family,
and application to prove his settlement and enter the land,
obtained a better right to the premises, under the law then
existing, than that acquired by McPherson by his subsequent state
selection in 1849. His right thus initiated could not be prejudiced
by the refusal of the local officers to receive his proofs upon the
declaration that the land was then reserved if, in point of fact,
the reservation had then ceased. The reservation was asserted, as
already mentioned, on the ground that the land was then claimed as
a part of the commons of Carondelet. So soon as the claim was held
to be invalid to this extent by the decision of this Court in
March, 1862, the heirs of Chartrand presented anew their claim to
preemption, founded upon the settlement of their ancestor. The Act
of Congress of March 3, 1853, 10 Stat. 244, provided that any
settler who had settled or might thereafter settle on lands
previously reserved on account of claims under French, Spanish, or
other grants which had been or should thereafter be declared
invalid by the Supreme Court of the United States, should be
entitled to all the rights of preemption granted by the Act of
Sept. 4, 1841, after the lands were released from reservation, in
the same manner as if no reservation had existed. With the decision
declaring the invalidity of the claim to the land in controversy,
all obstacles previously interposed to the presentation of the
claim of the heirs of Chartrand, and the proofs to establish it,
were removed. According to the decisions in
Frisbie v.
Whitney and the
Yosemite Valley Case, Congress might
then have withdrawn the land from settlement and preemption and
granted it directly to the State of Missouri, or reserved it from
sale for public purposes, and no vested right in Chartrand or his
heirs as against the United States would have been invaded by its
action; but, having allowed by its subsisting legislation the
acquisition of a right of preference as against others to the
earliest settler or his heirs, the way was free to the prosecution
of the claim of the heirs.
If the matter were open for our consideration, we might perhaps
doubt as to the sufficiency of the proofs presented by the heirs of
Chartrand to the officers of the Land Department to establish a
right of preemption by virtue of the settlement and
Page 91 U. S. 340
proceedings of their ancestor, or by virtue of their own
settlement. Those proofs were, however, considered sufficient by
the register of the local Land Office, by the Commissioner of the
General Land Office on appeal from the register, and by the
Secretary of the Interior on appeal from the Commissioner. There is
no evidence of any fraud or imposition practiced upon them or that
they erred in the construction of any law applicable to the case.
It is only contended that they erred in their deductions from the
proofs presented, and for errors of that kind, where the parties
interested had notice of the proceedings before the Land
Department, and were permitted to contest the same, as in the
present case, the courts can furnish no remedy. The officers of the
Land Department are specially designated by law to receive,
consider, and pass upon proofs presented with respect to
settlements upon the public lands with a view to secure rights of
preemption. If they err in the construction of the law applicable
to any case, or if fraud is practiced upon them, or they themselves
are chargeable with fraudulent practices, their rulings may be
reviewed and annulled by the courts when a controversy arises
between private parties founded upon their decisions; but for mere
errors of judgment upon the weight of evidence in a contested case
before them, the only remedy is by appeal from one officer to
another of the department, and perhaps, under special
circumstances, to the President. It may also be and probably is
true that the courts may furnish, in proper cases, relief to a
party where new evidence is discovered which, if possessed and
presented at the time, would have changed the action of the land
officers; but except in such cases, the ruling of the department on
disputed questions of fact made in a contested case must be taken,
when that ruling is collaterally assailed, as conclusive.
In this case, therefore, we cannot inquire into the correctness
of the ruling of the Land Department upon the evidence presented of
the settlement of Chartrand, the ancestor, or of his heirs. It
follows that the patent issued by the United States, taking effect
as of the date of such settlement, overrides the patent of the
State of Missouri to McPherson, even admitting that, but for the
settlement, the land would have been open to selection by the
state.
Decree affirmed.