1. The question of the conclusiveness of the action of the land
officers in issuing a patent on the rights of other persons
reconsidered and former decisions affirmed.
2. The tenth section of the Act of June 12, 1858, 11 Stat. at
Large 326, which declares that the decision of the commissioner
shall be final, means final its to the action of the Executive
Department.
3. The general proposition is recognized that when a special
tribunal is authorized to hear and determine certain matters
arising in the course of its duties, its decisions within the scope
of its authority are conclusive.
4. Under this principle, the action of the Land Department in
issuing a patent is conclusive in all courts and in all
proceedings, where by the rules of law the legal title must
prevail.
5. But courts of equity, both in England and in this country,
have always had the power in certain classes of cases to inquire
into and correct injustice and wrong, in both judicial and
executive action, founded in fraud, mistake, or other special
ground of equity, when private rights are invaded.
6. In this manner, the most solemn judgment of courts of law
have been annulled, and patents and other important instruments
issuing from the Crown or other executive branch of the government
have been reformed, corrected, declared void, or other appropriate
relief granted.
7. The Land Office, dealing as it does with private rights of
great value in a manner particularly liable to be imposed upon by
fraud, false swearing, and mistakes, exemplifies the value and
necessity of this jurisdiction.
Page 80 U. S. 73
8. The decisions of this Court on this subject establish:
i. That the judiciary will not interfere by mandamus,
injunction, or otherwise with the officers of the land department
in the exercise of their duties, while the matter remains in their
hands for decision.
ii. That their decision on the facts which must be the
foundation of their action, unaffected by fraud or mistake, is
conclusive in the courts.
iii. But that after the title has passed from the government to
individuals, and the question has become one of private right, the
jurisdiction of courts of equity may be invoked to ascertain if the
patentee does not bold in trust for other parties.
9. In deciding this question, if it appears that the party
claiming the equity has established his right to the land to the
satisfaction of the land department in the true construction of the
acts of Congress, but that, by an erroneous construction, the
patent has been issued to another, the court will correct the
mistake.
Minnesota v.
Bachelder, 1 Wall. 109,
Silver v.
Ladd, 7 Wall. 219.
10. The fourth section of the Act of March 3, 1843, concerning
two declaratory statements of the same preemptor, is confined to
preemptions of land subject to private entry.
11. The fifth section of that act, relating to lands not
proclaimed for sale, does not forfeit the preemptor's right
absolutely when he has failed to make his declaratory statement
within three months, but it gives the better right to anyone else
who has made a settlement or declaratory statement on the same land
before the first settler has made the requisite declaration.
12. Therefore a declaratory statement on such land is valid if
made at any time before another party commences a settlement or
files a declaration.
By an Act of Congress, approved September 4, 1841, [
Footnote 1] and entitled "An act to
appropriate the proceeds of the public lands, and to grant
preemption rights," it was enacted:
"SECTION 10. That from and after the passage of this act, every
person &c., who since the 1st day of June, A.D. 1840, has made
or shall hereafter make a settlement in person on the public land .
. . which has been, or shall have been, surveyed prior thereto, and
who shall inhabit and improve the same, and who has or shall erect
a dwelling thereon, shall be and is hereby authorized to enter with
the register of the land office for the district in which such land
may lie, by legal subdivisions,
Page 80 U. S. 74
any number of acres not exceeding 160, or a quarter-section of
land, to include the residence of such claimant, upon paying to the
United States the minimum price of such land, subject, however to
the following limitations and exceptions: no person shall be
entitled to more than one preemptive right by virtue of this
act,"
&c.
"SECTION 11. That when two or more persons shall have settled on
the same quarter-section of land, the right of preemption shall be
in him or her who made the first settlement &c.; and all
questions as to the right of preemption arising between different
settlers
shall be settled by the register and receiver of the
district within which the land is situated, subject to an appeal to
and a revision by the Secretary of the Treasury of the United
States."
"SECTION 14. That this act shall not delay the sale of any of
the public lands of the United States beyond the time which has
been or may be appointed by the proclamation of the President, nor
shall the provisions of this act be available to any person or
persons who shall fail to make the proof and payment and file the
affidavit required before the day appointed for the commencement of
the sales as aforesaid."
"SECTION 15. That whenever any person has settled or shall
settled and improve a tract of land,
subject at the time of
settlement to private entry, and shall intend to purchase the
same under the provisions of this act, such person shall in the
first case, within three months after the passage of the same, and
in the last within thirty days next after the date of such
settlement, file with the register of the proper district a written
statement, describing the land settled upon and declaring the
intention of such person to claim the same under the provisions of
this act, and shall, where such settlement is already made, within
twelve months after the passage of this act, and where it shall
hereafter be made, within the same period after the date of such
settlement, make the proof, affidavit, and payment therein
required, and if he or she shall fail to file such written
statement as aforesaid or shall fail to make such affidavit, proof,
and payment, within the twelve months aforesaid, the tract of land
so settled and improved shall be subject to the entry of any other
purchaser."
A subsequent act, that of March 3, 1843, [
Footnote 2] entitled "An
Page 80 U. S. 75
act to authorize the investigation of alleged frauds under the
preemption laws, and for other purposes," thus enacts:
"SECTION 4. That where an individual has filed, under the late
preemption law, his declaration of intention to claim the benefits
of said law for one tract of land, it shall not be lawful for the
same individual at any future time, to file a second declaration
for another tract."
"SECTION 5. That claimants under the late preemption law, for
land
not yet proclaimed for sale, are
required to
make known their claims, in writing, to the register of the proper
land office, . . .
within three months from the time of the
settlement, . . . giving the designation of the tract, and the
time of settlement;
otherwise his claim to be forfeited
and the tract awarded to the next settler, in the other of time, on
the same tract of land, who
shall have given such notice
and otherwise complied with the conditions of the law."
Finally came an act, of June 12, 1858: [
Footnote 3]
"SECTION 10. That the 11th section of the Act of Congress
approved 4 September, 1841, entitled 'An act to appropriate the
proceeds of the public lands, and to grant preemption rights,' be
so amended that appeals from the decisions of the district
officers, in cases of contest between different settlers for the
right of preemption, shall hereafter be decided by the Commissioner
of the General Land Office, whose decision shall be
final
unless appeal therefrom be taken to the Secretary of the
Interior."
With these provisions of law in force, one Towsley, on the 15th
of June, 1858, settled, as he alleged, on the W. 2/1 S.W.
quarter-section 3, township 15 N., range 13 east, lying near the
City of Omaha, and made improvements upon the same; and
on the
4th of February, 1859, filed with the register of the land
office his declaratory statement of an intention to claim the land
under the provisions of the act of September 4, 1841; claiming his
settlement from June 15, 1858. On the 5th of October, 1860, one
Johnson also setting up a settlement, improvement &c., filed a
declaratory
Page 80 U. S. 76
statement of his intention to preempt the same land under the
act of 1841.
The same Towsley had previously, to-wit, on the 2d of April,
1858, filed a declaratory statement giving notice that he had
settled, March 25, 1858, upon other land, described in the usual
manner, and claimed a preemption right therein, which land had not
yet
been offered at public sale and thus rendered subject to
private entry. From this land he withdrew claim early in the
following June and waived all claim to it in favor of an opposing
settler.
An investigation as to the respective rights of the two parties
was had before the local office, which resulted in a decision in
favor of Towsley. This decision was affirmed by the Commissioner of
the General Land Office, and on the 20th of September, 1862,
Towsley received a patent. The dispute between the parties being
taken by appeal before the Secretary of the Interior, that officer
on the 11th of July, 1863, as appeared from a statement of the
Assistant Secretary, decided in favor of Johnson on the ground that
Towsley, previously to filing his declaratory statement claiming
the land in question, had filed a declaratory statement claiming
the other lands.
After this, Johnson entered on the lands, and a patent was
issued to him.
In this state of things, Towsley, relying on his patent and on
different acts of Congress regulating the public lands, filed his
bill in one of the inferior courts of Nebraska against Johnson and
others, his grantees, to compel them to surrender their title to
him, the existing evidence of which cast a cloud on his own. The
court in which the bill was filed decreed such a surrender, and the
supreme court of the state on appeal affirmed that decree. Johnson
now brought the case here under the 25th section of the Judiciary
Act of 1789, or, if the reader prefer so to consider, under the 2d
section of the act of February 5, 1867, reenacting with some change
that so well known section. [
Footnote 4]
Page 80 U. S. 77
Three questions arose here:
1. Whether, conceding that the courts of Nebraska had
jurisdiction in the case, this Court had any under the Judiciary
Act of 1789 or 1867.
2. Admitting, upon the concession stated, that it had, whether
in view of the language of the 10th section of the Act of June 12,
1858 (quoted,
supra, p.
80 U. S. 75), as
to the effect of decisions by the Commissioner of the General Land
Office, in cases of contest between different settlers for the
right of preemption, either of the courts below had any
jurisdiction. Since if they had not, this Court would have none
now.
3. Whether, admitting that all three courts had jurisdiction,
and that the matter was now properly here for review, the decision
of the Supreme Court of Nebraska, affirming the validity of
Towsley's patent, was correct.
Page 80 U. S. 80
MR. JUSTICE MILLER delivered the opinion of the Court.
The jurisdiction of this Court rests on two grounds found in the
25th section of the Judiciary Act, or perhaps we should rather say
in the 2d section of the Act of February 5, 1867, which seems to be
a substitute for the 25th section of the act of 1789 so far as it
covers the same ground. The defendant in error relied on his patent
as conclusive of his right to the land as an authority emanating
from the United States, which was decided against him by the state
court,
Page 80 U. S. 81
and he relied upon certain acts of Congress as making good his
title, and the decision of the state courts was against the right
and title set up by him under those statutes. Undoubtedly the case
is fairly within one or both of these clauses of the act of 1867,
and the conclusiveness of the patent and the right of the
plaintiffs in error claimed under the statutes must be
considered.
The contest arises out of rival claims to the right of
preemption of the land in controversy. The register and receiver,
after hearing these claims, decided in favor of Towsley, the
complainant, and allowed him to enter the land, received his money,
and gave him a patent certificate. On appeal to the Commissioner of
the Land Office, their action was affirmed, but on a further appeal
to the Secretary of the Interior, the action of these officers was
reversed on a construction of an act of Congress, in which the
secretary differed from them, and under that decision the patent
was issued to Johnson.
It will be seen by this short statement of the case that the
rights asserted by complainant, and recognized and established by
the Nebraska courts, were the same which were passed upon by the
register and receiver, by the commissioner, and by the Secretary of
the Interior, and we are met at the threshold of this investigation
with the proposition that the action of the latter officer
terminating in the delivery to the defendant of a patent for the
land is conclusive of the rights of the parties not only in the
land department, but in the courts and everywhere else.
This proposition is not a new one in this Court in this class of
cases, but it is maintained that none of the cases heretofore
decided extend, in principle, to the one before us, and the
question being pressed upon our attention with an earnestness and
fullness of argument which it has not perhaps before received, and
with reference to statutes not heretofore considered by the Court,
we deem the occasion an appropriate one to reexamine the whole
subject.
The statutory provision referred to is the 10th section of
Page 80 U. S. 82
the Act of June 12, 1858, [
Footnote 5] which declares that the 11th section of the
general preemption law of 1841 shall
"be so amended that appeals from the decision of the district
officers, in cases of contest between different settlers for the
right of preemption, shall hereafter be decided by the Commissioner
of the General Land Office, whose decision shall be final, unless
appeal therefrom be taken to the Secretary of the Interior."
The finality here spoken of applies in terms to the decision of
the commissioner, and can only be supposed to attach to that made
by the secretary by some process of reasoning, which implies the
absurdity of making the decision, on appeal to the secretary, less
conclusive than that made by the inferior officer. But the section
under consideration is only one of several enactments concerning
the relative duties, power, and authority of the executive
departments over the subject of the disposition of the public
lands, and a brief reference to some of them will, we think, show
what was intended by this amendment. By the 1st section of the act
to reorganize the General Land Office, approved July 4, 1836,
[
Footnote 6] it was enacted
that
"The executive duties now prescribed or which may hereafter be
prescribed by law appertaining to the surveying and sale of the
public lands . . . and the issuing of patents for all grants of
land under the authority of the United States shall be subject to
the supervision and control of the Commissioner of the General Land
Office, under the direction of the President of the United
States."
In the case of
Barnard's Heirs v. Ashley's Heirs,
[
Footnote 7] it was held that
this authorized the commissioner to entertain appeals from the
decisions of the register and receiver in regard to preemption
claims, and it is obvious that the direct control of the President
was contemplated whenever it might be invoked. Afterward, when the
Act of September 4, 1841, was passed, which so enlarged the right
of preemption as to have been ever since considered the main source
of preemption rights, the 11th section provided that all questions
as to the right of preemption arising between
Page 80 U. S. 83
different settlers should be settled by the register and
receiver of the district within which the land is situated, subject
to an appeal to and revision by the Secretary of the Treasury of
the United States. This provision, in the class of cases to which
it referred, superseded the functions of the Commissioner of the
Land Office, as revising officer to the register and receiver, and,
so far as the act of 1836 associated the President with the
commissioner, superseded his supervisory functions also. It left
the right of appeal from the register and receiver to the Secretary
of the Treasury direct as the head of the department. The 10th
section of the act of 1858, so much relied upon by the plaintiffs
in error, the operative language of which we have quoted, was
clearly intended to remedy this defect or oversight and to restore
to the commissioner his rightful control over the matters which
belonged to his bureau. In the use of the word "final" we think
nothing more was intended than to say that, with the single
exception of an appeal to his superior, the Secretary of the
Interior, his decision should exclude further inquiry in that
department. But we do not see, in the language used in this
connection, any intention to give to the final decision of the
Department of the Interior, to which the control of the land system
of the government had been transferred, any more conclusive effect
than what belonged to it without its aid.
But while we find no support to the proposition of the counsel
for plaintiffs in error in the special provisions of the statute
relied on, it is not to be denied that the argument is much
stronger when founded on the general doctrine that when the law has
confided to a special tribunal the authority to hear and determine
certain matters arising in the course of its duties, the decision
of that tribunal, within the scope of its authority, is conclusive
upon all others. That the action of the land office in issuing a
patent for any of the public land, subject to sale by preemption or
otherwise, is conclusive of the legal title must be admitted under
the principle above stated, and in all courts, and in all forms of
judicial proceedings, where this title must control, either by
Page 80 U. S. 84
reason of the limited powers of the court or the essential
character of the proceeding, no inquiry can be permitted into the
circumstances under which it was obtained. On the other hand, there
has always existed in the courts of equity the power in certain
classes of cases to inquire into and correct mistakes, injustice,
and wrong in both judicial and executive action, however solemn the
form which the result of that action may assume, when it invades
private rights, and by virtue of this power, the final judgments of
courts of law have been annulled or modified, and patents and other
important instruments issuing from the Crown, or other executive
branch of the government, have been corrected or declared void or
other relief granted. No reason is perceived why the action of the
land office should constitute an exception to this principle. In
dealing with the public domain under the system of laws enacted by
Congress for their management and sale, that tribunal decides upon
private rights of great value, and very often, from the nature of
its functions, this is by a proceeding essentially
ex
parte, and peculiarly liable to the influence of frauds, false
swearing, and mistakes. These are among the most ancient and well
established grounds of the special jurisdiction of courts of equity
just referred to, and the necessity and value of that jurisdiction
are nowhere better exemplified than in its application to cases
arising in the land office. It is very well known that these
officers do not confine themselves to determining, before a patent
issues, who is entitled to receive it, but they frequently assume
the right, long after a patent has issued and the legal title
passed out of the United States, to recall or set aside the patent
and issue one to some other party, and if the holder of the first
patent refuses to surrender it, they issue a second. In such a case
as this, have the courts no jurisdiction? If they have not, who
shall decide the conflicting claims to the land? If the land
officers can do this a few weeks or a few months after the first
patent has issued, what limit is there to their power over private
rights? Such is the case of
Stark v. Starrs, [
Footnote 8] in which the
Page 80 U. S. 85
patent was issued to one party one day and to the other the day
after for the same land. They are also in the habit of issuing
patents to different parties for the same land, containing in each
instrument thus issued a reservation of the rights of the other
party. How are those rights to be determined except by a court of
equity? Which patent shall prevail and what conclusiveness or
inflexible finality can be attached to a tribunal whose acts are in
their nature so inconclusive? So also the register and receiver, to
whom the law primarily confides these duties, often hear the
application of a party to enter land as a preemptor or otherwise,
decide in favor of his right, receive his money, and give him a
certificate that he is entitled to a patent. Undoubtedly this
constitutes a vested right, and it can only be divested according
to law. In every such case, where the land office afterwards sets
aside this certificate and grants the land thus sold to another
person, it is of the very essence of judicial authority to inquire
whether this has been done in violation of law, and if it has to
give appropriate remedy. And so, if for any other reason recognized
by courts of equity as a ground of interference in such cases, the
legal title has passed from the United States to one party when in
equity and good conscience and by the laws which Congress has made
on the subject it ought to go to another, "a court of equity will,"
in the language of this Court in the case of
Stark v.
Starrs, just cited, "convert him into a trustee of the true
owner, and compel him to convey the legal title." In numerous cases
this has been announced to be the settled doctrine of this Court in
reference to the action of the land officers. [
Footnote 9]
Not only has it been found necessary in the interest of justice
to hold this doctrine in regard to the decisions of the land
officers of the United States, but it has been found equally
necessary in the states which have had a system of land sales.
Numerous cases are found in the courts of Kentucky and Virginia
where they have, by proceedings in equity, established the junior
patent to be the title instead
Page 80 U. S. 86
of the elder patent by an inquiry into the priority of location
or some other equitable matter, or have compelled the holder of the
title under the patent to convey, in whole or in part, to some
persons whose claim rested on matters wholly anterior to the
issuing of the patent. There is also a similar course of
adjudication in the State of Pennsylvania, and we doubt not cases
may be found in other states. Several of the Kentucky cases have
come to this Court, where the principle has been uniformly upheld.
[
Footnote 10]
It is said, however, that the present case does not come within
any of the adjudicated cases on this subject; that in all of them
there has been some element of fraud or mistake on which the cases
rested.
Undoubtedly there has been in all of them some special ground
for the exercise of the equitable jurisdiction, for this Court does
not and never has asserted that all the matters passed upon by the
land office are open to review in the courts. On the contrary, it
is fully conceded that when those officers decide controverted
questions of fact, in the absence of fraud, or impositions, or
mistake, their decision on those questions is final except as they
may be reversed on appeal in that department. But we are not
prepared to concede that when, in the application of the facts as
found by them they, by misconstruction of the law, take from a
party that to which he has acquired a legal right under the
sanction of those laws, the courts are without power to give any
relief. And this is precisely what this Court decided in the case
of
Minnesota v. Batchelder, [
Footnote 11] and in the case of
Silver v. Ladd.
[
Footnote 12] In this latter
case, a certificate under the Oregon donation law, given by the
register and receiver, was set aside by the commissioner, and his
action approved by the secretary, and the action of each of these
officers was based on a different construction of the act of
Congress. This Court held that the register and receiver were
right; that
Page 80 U. S. 87
the certificate conferred a valid claim to the land, and that
the patent issued to another party by reason of this mistake must
enure to the benefit of the party who had the prior and better
right. This Court has at all times been careful to guard itself
against an invasion of the functions confided by law to other
departments of the government, and in reference to the proceedings
before the officers entrusted with the charge of selling the public
lands it has frequently and firmly refused to interfere with them
in the discharge of their duties, either by mandamus or injunction,
so long as the title remained in the United States and the matter
was rightfully before those officers for decision. On the other
hand, it has constantly asserted the right of the proper courts to
inquire, after the title had passed from the government and the
question became one of private right, whether, according to the
established rules of equity and the acts of Congress concerning the
public lands, the party holding that title should hold absolutely
as his own, or as trustee for another. And we are satisfied that
the relations thus established between the courts and the land
department are not only founded on a just view of the duties and
powers of each, but are essential to the ends of justice and to a
sound administration of the law.
In the case now under consideration, the complainant made his
declaratory statement and proved his settlement to the satisfaction
of the register and receiver, and they gave him a patent
certificate. The defendant Johnson contested the complainant's
right before these officers and asserted that he was entitled to
the preemption right for the same land, and when they decided in
favor of Towsley, he appealed to the commissioner. This officer
approved the decision of the register and receiver, and an appeal
was taken by Johnson to the Secretary of the Interior. The
secretary, or rather the assistant secretary, as appears by the
record, rejected Towsley's claim on the sole ground that he had
previously filed a declaratory statement of his intention to claim
a preemption for another tract of land, which he had voluntarily
abandoned, and it is clear that but for his construction
Page 80 U. S. 88
of the statute on that subject, Towsley would have received the
patent which was awarded to Johnson.
We must therefore inquire whether the statute, rightly
construed, defeated Towsley's otherwise perfect right to the
patent, and this inquiry requires consideration of some of the
features of our system of land sales.
One of these is that after the surveys are made in any given
locality, so that the different tracts can be identified by the
descriptions used in these surveys, they are not subject to sale by
private entry at the land office until there has been a public
auction at which the lands so surveyed are offered to the highest
bidder. The time and place of this sale and the lands offered for
sale are made known by a proclamation of the President. The object
of this public sale and of withholding the lands from private entry
is undoubtedly to secure to the government the benefit of
competition in bidding for these parcels of land supposed to be
worth more than the price fixed by Congress, at which they may
afterward be sold at private entry. But as the tide of emigration
was greatly in advance of these public sales, and indeed of the
surveys, it was found that settlers who had made meritorious
improvements were unable to secure the land on which they had
settled without bidding at public auction against parties who took
into consideration the value of the improvements so made and who
would get them by the purchase. To remedy this evil several of the
earlier preemption laws were passed, and they only included
settlements made prior to the passage of those laws. The act of
1841, however, provided a general system of preemption, and
authorized preemption of lands surveyed but not open to private
entry, as well as land which could be bought at private sale. It
protected settlements already made and allowed future settlements
to be made with a right to preemption, which was a new feature in
the preemption system. As, however, these settlements might now be
made on lands subject to private sale, and the settler was allowed
a year in which to make his entry and pay the money, the 15th
section of the act required the settler on such lands to make a
Page 80 U. S. 89
declaratory statement if he intended to claim a right of
preemption in which he should declare such intention and describe
the land. This statement was filed with the register and receiver,
and was obviously intended to enable them to reserve the tract from
sale for the time allowed the settler to perfect his entry and pay
for the land. But an experience of two years seems to have shown
that this privilege of withdrawing particular tracts from private
sale was subject to abuse by persons who filed declarations for
several tracts when they could only receive one as a preemptor,
thus delaying the sales and preventing others from settling on or
buying, with a view to a purchase by themselves or friends when it
became convenient to do so. To remedy this evil, Congress, when it
came to legislate again about the right of preemption by the act of
1843, enacted by the 4th section
"That where an individual had filed, under the late preemption
law, his declaration of intention to claim the benefit of said law
for one tract of land, it shall not be lawful for the same
individual, at any future time, to file a second declaration for
another tract."
As the only declaration of intention required by the act of 1841
(which is undoubtedly the one referred to as "the late preemption
law") was, both by its express terms and by the policy which
dictated it, confined to preemptions of land subject to private
entry, we entertain no doubt that this section was limited in like
manner to that class of lands. As to lands not subject to private
sale, no declaration of intention was required by the act of 1841,
and the reference to such a declaration in the act of 1843 would be
without anything on which to base it. This view is made still
clearer by the fact that the next succeeding section of the act of
1843 does introduce distinctly, as a new and separate provision,
the requirements that settlers on the land
not yet proclaimed
for sale are required to make a similar declaration,
within three months from the time of settlement, on pain
of forfeiting their preemption right in favor of the next actual
settler, but making no provision whatever for the case of two
declarations by the same party on different tracts of land. We are,
therefore, of opinion
Page 80 U. S. 90
that the effect of a double declaration in defeating the right
of the preemptor to the tract which he finally claims to purchase
is limited to lands subject, at the time, to private sale. The land
in controversy in this suit was never subject to private entry, and
the application of the principle by the secretary to Towsley's case
was, as we think, a misconstruction of the law, through which his
right was denied him.
But it is argued that if the preemption claim of Towsley was not
governed by the 4th section of the act of 1843, it certainly was by
the 5th section of that act, and as he did not file his declaration
of intention within three months from the time of settlement, his
claim was forfeited and gave him no right.
The record shows undoubtedly that his settlement commenced about
eight months before he filed his declaration, and it must be
conceded that the land was of that class which had not been
proclaimed for sale, and his case must be governed by the provision
of that section. It declares that where the party fails to make the
declaration within the three months, his claim is to be forfeited
and the tract awarded to the next settler in order of time on the
same tract, who shall have given such notice and otherwise complied
with the conditions of the law. The words "shall have given such
notice" presuppose a case where someone has given such notice
before the party who has thus neglected seeks to assert his right.
If no other party has made a settlement or has given notice of such
intention, then no one has been injured by the delay beyond three
months, and if at any time after the three months, while the party
is still in possession, he makes his declaration, and this is done
before anyone else has initiated a right of preemption by
settlement or declaration, we can see no purpose in forbidding him
to make his declaration or in making it void when made. And 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
Page 80 U. S. 91
time before the first settler makes his declaration, shall have
the better right. As Towsley's settlement and possession were
continuous, and as his declaration was made before Johnson or
anyone else asserted claim to the land or made a settlement, we
think his right was not barred by that section, under a sound
construction of its meaning.
We are of opinion that the decree of the Supreme Court of
Nebraska must be
Affirmed.
[
Footnote 1]
5 Stat. at Large 455.
[
Footnote 2]
5 Stat. at Large 620.
[
Footnote 3]
11 Stat. at Large 326.
[
Footnote 4]
The reader may see the two acts in
Trebilcock
v. Wilson, 12 Wall. 687.
[
Footnote 5]
11 Stat at Large, 326.
[
Footnote 6]
5
id. 107.
[
Footnote 7]
59 U. S. 18 How.
45.
[
Footnote 8]
6 Wall. 402.
[
Footnote 9]
Lytle v.
Arkansas, 22 How. 192;
Garland v.
Wynn, 20 Wall. 8;
Lindsey v.
Hawes, 2 Black 559.
[
Footnote 10]
Finly v.
Williams, 9 Cranch 164;
McArthur
v. Browder, 4 Wheat. 488;
Hunt v.
Wickliffe, 2 Pet. 201;
Green v.
Liter, 8 Cranch 229.
[
Footnote 11]
68 U. S. 1 Wall.
109.
[
Footnote 12]
74 U. S. 7 Wall.
219.
MR. JUSTICE CLIFFORD, dissenting:
I dissent from the judgment of the Court in this case upon the
ground that the case is controlled by the act of Congress which
provides that the decision of the Commissioner of the General Land
Office shall be final unless an appeal is taken to the Secretary of
the Interior. In my judgment, the decree of the commissioner is
final if no appeal is taken, and in case of appeal that the
decision of the appellate tribunal created by the act of Congress
is equally final and conclusive, except in cases of fraud or
mistake not known at the time of the investigation by the land
department.
MR. JUSTICE DAVIS took no part in the decision of this or the
next case, being interested in the question involved.
