V1U'rJlD STATES ,. BB4DDC)CL
669
UNITED STATES t1. BBADDOCX. (Circuit Coure,
8. D. OatifOT'7llCa. May 28, 18OD.) No.91o.
I.
PuBLIO LAl'lDS-TIMlIER ENTBIBS-RBFUS.A.L OF CBRTIFICATB.
In a suit by the government to restrain defendant from cutting timber from a quarter section of public land, defendant filed a cross bill alleging that he had made application to purchase the land in question under the stone and timber act, (20 St. p. 89,) and complied with all the statutory reguirements in that respeot; but upon tender of the purchase money the local land officers refused the tender, and declinedto issue a certificate of entry and pUrQhase. Beta, that defendant had acquired no vested interest in the land, and the government was entitled to withdraw it from sale. The Yosemite VaHey Case, 15 Wall. 77, followed. The cross bill haVing failed to show that the cross complainant was prevented from entering the land by reason of any fault on the part of tbe land oftlcers, the rule that where one offers to do anything upon which the acquisition of a right depends, and ill prevented by the fault of the other side, had no applicatlon to the case. . An allegation that such officers combined to deprive oross complainant of the land, without stating the acts done or omitted in pursuance of the combInation, was insuffioient to make the rule applicable.
.. SUIE-IN.JUNOTION-BuPFICIBNCY OJ' CROSS BILL.
In Equity. Suit by the United States against Walter Braddock to restrain defendant from cutting timber on public land. Cross bill by setting up an application to purchase the land and compliance with statutory requirements, and alleging a wrongful refusal of the land officers to issue a certificate of entry and purchase. Heard on demurrer to the cross bill. Demurrer sustained. M. T. Alllm, U. S. Atty. H· .O. Dillon, for defendant. Ross, District Judge. This suit was commenced to obtain an.injunction restraining the defendant from cutting timber from a certain quarter section of timber land situated in township 15 S., range 25 E., Mount Diablo base and meridian, of which the bill alleges the government is, and since the acquisition of California has been, the owner in fee. The defendant filed an answer to the bill, and also a cross bill, to which the government interposed a demurrer, now for disposition. The cross bill, in effect, alleges that on the 5th day of October, 1885, the land in question was surveyed unappropriated timber land of the United States, and open to ·sale under the terms and provisions of the act of congress of June 3, 1878, (20 St. p. 89,) known as the "Timber and Stone Actj" that on that day cross complainant had the necessary qualifications to enter and purchase the land, and did then, pursuant to law and the regulations of the land department, make application to purchase it, bypreaenting to the register of the land office of the district in which the land is situate his affidavit, in duplicate, setting forth the statutory requirements, and which was in all things truej that upon the filing of the affidavit the register posted a notice of the application to purchase in the land office for the period of 60 days, .and furnished the cross complainant, as such applicant, a copy thereof for publication in the newspaper published nearest the location of the land, which notice the applican.t caused to be so published continuously for 60 days; that
upon the last day appointed in the notice, which was not less than 60 nor more than 90 dl1ytiftotti' its fiti3tpublicatil(in, cross complainant furnished to the register satisfactory evidence that the notice was published as requiredbflilw'; and thabit the sallie \irrie'6tOss complainant, as such applicant, "presented prodfiHrom at least two disinterested witnesses that the said landiWasof.,thecharacter ,contemptated in the said th;iU()fiJ,s withouta,l;iy improvements; tbl1bit<llpparently no valuable deposit cinna<i1' C9aI;' nQ or objector appeared;. that your Qrator ,further, presented, then'and there a supplefuefitiil affidavit, at of tli'e sllid register,' again the facts of his first affidavit, as aforesaid, and showing4hat he had not in .the made, any agreement or contract so that his entry thereof would benefit any one,else, and that the :tDQlley then and there tendered Ql your orator;as:bereinafter stated, ,w:asveritablyhis own, and not for the purpose upon the said land j which said affidavits and proofs, so presented and made as aforesl1id, were true iJ;} every were accepted, filed, ',a.]1dapproved by the sl;tidregister, and were then and! t,he.l,'e decllued to De, and ,werein tq botq the register and receiver of 'said landofficej that then and tberEl, and on, to -wit;Jheyear last aforeslM, attha limd aforesajd,Y91ir' orator,al!! such applicant, tendered to Tipton and tijtl receiver of the said land office, the full sum "of $410 in gold coioo£ the United States, in payment for the said land, that being the price fOI:, 160 acres of land, at $2.50 per acre, together with the legal fees of the said land office." .1he cr<;>ss aUeges as follows: ""'That the said J. D. Hyde, register, and the said Tipton Lindsey, receiver, ciUha said land office, combining and Ctlnfederating together with one A.J. pVm.a.J.1Sparks, then and there the commissipner of the general l"nd ofiice of the defendl1nt, I1l1d all of them pretending taact under the authority of the defendant, in trnthand in fact acting Without authority of law and .without any 'authority whatever; and the said defendant. comand confederating with divers to your orator unknown, but whose names when discovered your: orator prays may be inserted herein as defendants to his. cross bill. and made, parties hereto. with proper and apt to charge them; and contriving how to injure and oppress your orator, anqdeJ;lrive him of the said lands,-the said register refused to accelJt, execute. and deliver to your orator a proper certificate for the entry and purchase of said land. or any certificate whatever of the said 'entry and purchase by )'Our orator; and the said '1'eceiverrefused to execute and deliver to your orator,a proper or any receiptfot such purchase money so tendered by your oratqr 8S aforl'said in paYment for the said land: that thereupon your orator decish.mof the and receiver in dilly and'1'egularly appealedfroD;l th,us refusing the. said in to issue t,o him a certificate of and purchase of the said land; that the said appeal was taken to theHJonorable commissioner,of the general land office of. the United states of America within the lJO days allowt'dby law thei'efor;'thatafterwards, and in said general land officp..such proceedings were had upon said appeal that the commissioner, the, :l:Ii)norable William .a. (Lewis A.) Groff, on or about the 31st day of 4,.,p. 1891, theI:\, an1 tbere being the commission6J,' , '
UNITED STATES ". BRADDOCE.
671
of, the geMral land office. the said decisionol the register and re· land office at Visalia; but afterwards, and on or about the lOth April in the year 1891. the Honprable Jobp l!{,oble, then and there b!ling the secretary of the interior department of the U'nittidStates of America. upon oithe said deCision to him from the said commissioner of the general land office, refused to concUr therein. and refused to issue or recommend to,oo'illsued to your orator a patent for the said land, and canceled said entry."
The act umiar which the cross complainant applied to purehaseithe land in question is, as has been, said, that of June 3, 1878, (20 St. p; 89.) By the first l3ootionof the act it is provided that, subject to certain provisions not necessary to be mentioned, the surveyed publie lands of the United States within the states of California. Oregon, and Nevada, and in Washington Territory, not included within military, Indian, or other l'eservationsofthe UnitedStates,valuablechieflyfot timher,but unfit for cultivation,and which have 'Uht been, offered at public sale according to law, rrilll.ybe sold to citizens ofthe Uriited States, or persons who have declared iheirintention to become such, in quantities not exceed.. ing 160 acres to anyone person or association of persons, at the mini· mum price of $2.50 ptlT aCre. By the second section it is provided that any ,person desiring to avail himself of the provisions of the act shall file with the register oftheproper district a written statement in duplicate, oneohvhich is to be transmitted to the general land office, designating by legal subdivisions the particular tract of land he desires to purchase,settingforth that the same is unfit for cultivation, and valuable chiefly for its timber or 5tone; that it is uninhabitE:d; contains no 'mining or other improvements, except for ditch or banal purposes where any such do exist, save such as were made by or belong to the appli. cant, nor,' as deponent verily believes, any valuable deposit of gold, silver, cinnabar, copper, or ,coal j that deponent has made no other application under the act; that he does not apply to. purchase the same on speculation, but in good faith t6 appropriate it to his own exclusive use and benefitjand that he has not, directly or indirectly, made any agree. ment or contract, in any way. or manner, with any person or persons whatsoever,Hy which the title which he might acquire from the governm,ent of the United States should inure, in whole or in part, to the ben· 'efit of any person except himself; which statement must be verified by the oath of the applicant. By the third section it is provided that upon the filing of. the statement, as: provided in the second section of the act, the register sball post a notice of the application, embracing' a description ofthe land, in his office for' 60 days, and shall furnish: ,the applicant a copy of the same for publication in a newspaper published near,est the location of the land, for a similar period; and after the expiration of the 60 days, if no adverse claim shall have been filed, the person desiring to purchase shall' furnish to the register satisfactory evidence -First, that notice of the application was duly published as required; secondly,that the land is of the character contemplated in the act, unoccupied a:ndwithout improvements, other than those excepted, and that it apparentlycOIitains no valuable deposit of gold, silver, cinnabar, copper,
FEDERAL REPORTER,
vol. 50.'
cda}; and upon payment to the proper officer of the purchase money ofthe'limd, with the fees of the register and receiver, the applicant to entE!rthe land, and, on transmission to the generallandoffice.of the papers.alld testimony in the case, a shall issue thereon. It is also provided that eft'ectshall be given to the prO\'isions of the act by regulations to be prescribed by the commissioner of the general ll;tnd office. It is ,perfectly .clear that the mere filing of the application to purchase under this act confers upon the applicant no right as against the United States, and that, until the applicant has acquired a vested right in the land, it is within the power of the government to withdraw it from sale or m,ake any other disposition of it. The filing ofan application to purchase may initiate aright to purchase as against a subsequent applicant for. the same privilege, but to say that the initiation oreuch a right imposes an obligation on the government to convey the title is to' confound the. manifest distinction pointed out by the supreme court in the Yosemite Valley Case,l5 .Wall. 77, between the acquisition of a legal right to theJand as against the owner, the United States, and the acquisition of alegal right as against other parties to be preferred in its purchase. "It seems to us little less than absurd," said the court in the case cited, "to say-that a settler or any other parson, by acquiring a right to be preferred in the purchase of property, provided a sale is made by the owner, thereby acquires a right to cOlupel the owner to sell, or such an interest in the property as to deprive the owner of the power to control its disposition." . There can be no doubt of the correctness of the doctrine that where one ,offers to 40 everything upon which the acquisition of a right depends,and is, prevented by the fault of the other side, his right is not lost by his failure.· It is strenuously urged by c()unsel for cross complainant that the present case comes within this principle. But the difficulty is thaUhe crossbill does not show that the cross complainant was prevented from entering the land in question by reason of any fault on the part of the officers oHhe land department of the government. Such a fault, .if it shonld have been set forth. The facts in respect to the rna tter should have been stated · It is not enough to charge generally, as is done in the cross bill, that the then register and receiver and commissioner of the land oflice combined to deprive cross complainant of the land in question, without stating the acts. done or omitted to be done in pursuance of such combination. It is alleged that the receiver ofthe land office refused to execute to the cross complainant a receipt for the money tendered for the land,and that the register refused to execute to him a certificate of entry or purchase; and, although there is no direct averment of the fact, it sufficiently appears-the pleading being taken, as it should be,most strongly against the pleader-that the officers of the local land office refused to receive·the money tendered, or to permit the cross cJrnplainant to enter the land. Why , does not appear from the cross bill. In an opinion by the secretary of the interior in regard to this BaIlfe land, in connection with other lands, rendered April 6, 1891,
UNITED STATES V. BRADDOClt.,
673
(Copp, Landowner, May 1, 1891, p. 35,) it is said that the tender of payment was refused, and the application to purchase rejected by the local officers, for the reason that by telegram of December 2 and letter of December 24, 1885, the townships in which the said lands are situate were suspended from entry or filing under the land laws by the COlllmissioner of the general land office; that such suspension and withdrawal of the townships was on account of alleged irregularities and fmud on the part of the claimants; and that this order of suspension and with- . drawal waa not revoked as to the townships in which the lands in question are situate prior to the acts of congress of September 25 and October 1, 1890, (26 St. pp. 478, 650,) purporting to reserve the land in question, among other lands, for a park and other purposes. The matters thus stated in the opinion of the secretary of the interior cannot, perhaps, be accepted as facts in passing upon the demurrer to the crossbill, since that pleading omits all mention of them; but it is sufficient ground of objection to it that they may have constituted the reason why the officers of the land department of the government refused to receive the cross complainant's money for the land, or to permit him to enter it. ",The commissioner of the general land office exercises a general superintendence over the subordinate officers of his department, and is clothed with liberal powers of control, to be exercised for the purposes of justice, and to prevent the consequences of inadvertence, irregularity, mistake, and fraud,. in the important and extensive operations of that officer for the disposal of the puplic domain." Bell v. Hearne, 19 How. 262. And, by the third section of the act under which the application in question made, the commissioner is expressly required to give effect to its provisions by regulations to be prescribep by him. As was justly said by the secretary of the interior in the opinion to which allusion has been made, an application to purchase land under the act of June 3,1878, is certainly, as against the United States, of no greater force than a claim ipitiated by settlement and residence upon and improvement of public lands under the provisions of the late pre-emption law, in respect to which the doctrine is firmly established. that the power of regulation and disposHion conferred upon congress by the constitution only ceases when all.the preliminary acts prescribed by the statute for the acquisition of the title, including the payment of the price for the land, have been performed by the settler. "When these prerequisites have been complied with," said the court in the Y08emite Case, 8upra, "the settler for the first time acquires a vested interest in the premises occupied by him of which he cannot be subsequently deprived. He is then entitled to certificate of entry, from the local land officers, and ultimately to a patent for the land from the United States. Until such payment and entry the acts of congress give to the settler .only a privilege of pre-emption in case the lands are offered for sale in the usual manner; that is, the privilege to purchll.!le them in that event in preference to others." For the reasons stated the demurrer must be sustained, without reference to other tions urged to the cross bill. So ordered. v.50F f no.8---:43
611,
QDEBAL REPORTER,
WI'
voL 50.
, :I
'ec al. t7. MUWELL LAm> GRANT Co. POU,-c oJ: Ctrcuu. May 16;'
," No. 58. 1o.1Iqurrr·..·..l tJRIBDlcnoN....MtlLTIPLIclT1' OJ' BtJIT8-BILL.
.L ' '. ' , ,Qontplainant'I;l>,U averred that it w""' the owner ot certain landl to whioh fte, title establisned by divers aotioDs' at iaw against personl io like oosel with de, tetuilliUt1iI; thatdefendante were,unl&wfully in possession of part of land,mintoll' .,and mi1lerals and cutting, . thete0l1; that the damages for theseuniawful acts was incapable of'computatlOn 'andiSdjUdiOatio.o.,'8,.. Wi.tbai.tWhile, o.am Plain.ant's, title: was, Bingl.e ,aod ex,clusive" .. , lIo3 1lI1tM (lOuld not quieted nUmerous actions In law; fnvolving'the'same becaule, defendante' olaiins, 'as between themselves, were sepal'llteand. liferent; and it prayed that oomplaiIlant'8title migM l);y' inj)lnotionfrom further tres: pwes. Held, 'tbat the avermeltte of tliebill make the case one'ot eqUitable 'COgni'la,
L
iN,C?:r OJ' EqIJITr. tbere ;lnay be a doubt whether tbe calle made by a bill ill, on,e of equitable , jilJfsdidtioo, bemuse thatcomplBinant may bave at law, tbe doubt ,resolved. of the ;the wu .' al'i
:lJance.'
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Judge.' "
trom of the ,United States for the District of COlofiido, sitting' at Denver. BiUJ,in equity by the Maxwell Land Grant COmpany against Vicente Pretecaandothers to restrain trespasses. There was a pUrSuant to a stipulation tiled, and defendants appeal.'c' Decree 'll.fJirmed. " ' A,le:r4ntkr appellants. 'Before and: SANBoRN,Circuit Judges, and SHmAS, District
" ," .. '
CALDmLL, Circuit Judge. The complainant filed its bill in equity inthebdtut belo\t, aUegingthat it was the legal owner of the lands deseriboo in the bill known as'then'Beaubien and Miranda Grant;" that complainant's /ltitle to the Said lands has been established at law by divers Abtions of, ejflctment, dUly ,and, regularly brought and prosecuted to in t11e. courts of the; tei-ptory of New Mexico, by and on behalf of your 'orator ,and those throuih' whom it derives its title, against pereOns hdike situation with saitl derendants, which said actionl!! at law involvedand depended on the sarrie questions of title now in controversy betweert your Ofll.tor and each ofsaid that your orator, and, as it is iriformed and believes, its several predecessors in interest successively, nave oocupied possession ofthe said grant and tract of land, 'claimirigthe the said' grant, patent, and conveyan&ls (with theexceptio,n 'aforesaid) continuously from the date of of juridical pOl!!session,thereof by the Mexican government in A. 184:3 to the present time, save in so far as they have from time to interfered with by tblf unlawful acts of said defendants and otheta in like13ituation as to portions thereof; " that the defendants" have lately wrongfully, unlawfully, and without the permission of your oratol' entered upon and taken possession of certain portioIUl' of the said landa