Caldwell v. Bush

• Decision Date: 30 June 1896
• Citation: 6 Wyo. 342,45 P. 488
• Parties: CALDWELL ET AL. v. BUSH
• Court: Wyoming Supreme Court

45 P. 488

6 Wyo. 342

CALDWELL ET AL. v. BUSH

Supreme Court of Wyoming

June 30, 1896

Rehearing Denied December 12, 1896, Reported at: 6 Wyo. 342 at 365.

Commenced in the District Court August 14, 1890.

ERROR to District Court of Albany County, HON. RICHARD H. SCOTT Judge of the First Judicial District, presiding.

This was an action brought by Isaac P. Caldwell and Robert J Gardinier against Lewis J. Bush to restrain repeated and continual trespasses upon a tract of land in Albany County claimed by the plaintiffs under a purchase from a desert-land entryman after delivery of final certificate of purchase. The defendant claimed under a homestead entry made after the cancellation of the entry of the grantor of the plaintiffs. Defendant had judgment, and the plaintiffs prosecuted error. The material facts are stated in the opinion.

Judgment affirmed.

N. E. Corthell, for plaintiffs in error.

Between the parties, the certificate of purchase is proof of title equivalent to patent. (Laws 1890, Ch. 76, Sec. 3.) The question of title as between plaintiffs and the United States can not be drawn in question in this case because the latter is not a party.

Lands which have been entered and paid for are no longer public lands, but are private property, and as such they are no longer within the supervision of the commissioner of the General Land Office. The entryman becomes the full equitable owner of the land. (Wetherspoon v. Duncan, 4 Wall., 210; Carrall v. Safford; 3 How., 460; Moore v. Robbins, 96 U.S. 530; Stark v. Starn, 6 Wall., 402; Meyers v. Croft, 13 Wall., 291; Wirth v. Branson, 98 U.S. 118; Simmons v. Wagner, 101 U.S. 260, Johnson v. Towsley, 13 Wall., 72; Burney v. Dolph, 97 U.S. 652, K. P. R. R Co. v. Prescott, 16 Wall., 603; U. P. Ry. v. McShane, 22 Wall., 444; N. P. Co. v. Traill, 115 U.S. 600.) It is not contended that the commissioner is deprived of all means of protecting the interests of the government after issuance of the final certificate. For the sole purpose of governing his own action he may institute inquiries, take evidence, and determine whether the patent should be issued. But the act of the commissioner in rescinding or canceling the certificate is no more determinative of the right of the other party in a judicial sense than the act of a private individual in rescinding or canceling a contract he has entered into. The commissioner is not a judicial officer. The powers conferred upon him are purely executive and in most respects ministerial. The entryman whose certificate has been canceled by the commissioner is left to such remedies and relief as he can obtain in the courts. (Smith v. Ewing, 23 F. 741 and cases cited; Cornelius v. Kessel, 128 U.S. 456; Wilson v. Fine, 40 F. 52; Davis v. Wiebold, 138 U.S.; Hardin v. Jordan, 140 id., 371.) The officials of the Land Department have persistently arrogated to themselves judicial power; but even they have conceded that an entry can not be canceled without notice to the entryman. (Houston v. Coyle, 2 L. D., 61; Slayton v. Carrall, 7 id., 200; Lundy v. Hoebel; id. 49; Lecocq cases, 2 id., 784; Neal v. McMullen, 9 id., 523; Milne v. Dowling, 4 id., 378; U. S. v. Richardson, 5 id., 253; U. S. v. Raymond, 4 id., 439.) The question of jurisdiction can be raised at any stage of the proceedings and upon slight suggestions in all tribunals (Rancho Alisal, 1 L. D., 174.)

The allegations of the petition and answer, and the findings of the court bring the entry in this case within the scope of Sec. 3, act of cong., March 3, 1891. (Supp. U. S. Rev. Stat., 2d ed., 943.)

A lawful entry or settlement upon public lands can not be acquired by intrusion or trespass upon lands in possession of others. (Atherton v. Fowler, 96 U.S. 513; Hosmer v. Wallace, 97 id., 575; Trenouth v. San Francisco, 100 id., 251; U. S. v. Williams, 30 F. 314; Nickalls v. Winn, 17 Nev. 189; Reinhart v. Bradshaw, 19 id., 255; Hosmer v. Duggan, 56 Cal. 261; Davis v. Scott, id., 165; Hambleton v. Duhain, 71 id., 140.) Possession may be shown or maintained by means of fences, natural barriers, or herders. (Bullock v. Rouss, 81 Cal. 583.) A complete enclosure unnecessary. (99 Cal. 135; McBrown v. Morris, 59 id., 64.) For applications of the general doctrine, see Laurendeare v. Fugelli, 1 Wash. St., 559, 5 id. 94, 632; Rourke v. McNally, 23 P. 62; Kendall v. Waters, 8 P. 510; Campbell v. Coonradt, 22, Kan. 704.) The right of plaintiffs as actual possessors is greater than that of the defendant. (2 Co. Litt., 237; 3 Black. Com. 3, 4; Mirror of Justice, C. 2 Secs. 25, 29; 2 Reeves Hist. Eng. L. 116-118.)

John C. Baird, for defendant in error.

The findings of the court will not be disturbed on error unless clearly erroneous. Smith D. Co. v. Casper D. Co., 5 Wyo., 510; Ketchum v. Davis, 3 id., 164; Boberg v. Prahl, id., 325.)

The Land Department is a tribunal appointed by congress to decide certain questions relating to the public lands; and its decision upon matters of fact cognizable by it, in the absence of fraud or imposition, is conclusive everywhere else. (Lee v. Johnson, 116 U.S. 48; Johnson v. Towsley, 13 Wall, 72; Warren v. Van Brunt, 19 id., 646; Shepley v. Cowan, 91 U.S. 330; Moore v. Robbins, 96 id., 530; Marquez v. Frisbie, 101 id., 473; Vance v. Burbank, id., 420; Quinby v. Conlon, 104 id., 420; Steel v. St. L. S. & M. Co. 106 id., 447; Baldwin v. Starks, 107 id., 463; U. S. v. Minor, 114 id., 233.) It is the duty of the Land Department to cancel an entry made contrary to law. (Smith v. Custer, 8 L. D., 269, 273. See Edwards v. Darby, 12 Wheat, 206; Smythe v. Fiske, 23 Wall., 374; U. S. v. Moore, 95 U.S. 760.) Until all preliminary acts have been performed by the pre-emptor he has acquired no rights as against the government. (Frisbie v. Whitney, 9 Wall., 189; The Yosemite Valley case, 15 id., 77; Perry v. O'Hanlon, 11 Mo. 585; Ry. Co. v. Bryan, 8 S. & M., 268; Lamont v. Stimson, 3 Wis. 545.) Nor if an entry and certificate are procured by fraud. (Am. Mort. Co. v. Hopper, 64 F. 553.)

The commissioner may investigate and cancel an entry for cause. (Holmes v. State (Ala.), 18 So. 529; U. S. v. Steenerson, 50 F. 504; Harkness v. Underhill, 1 Black, 316; Grant v. Oliver, 91 Cal. 158; Grandin v. LaBar, 3 N.D. 446; Judd v. Randall, 36 Minn. 12; Marquez v. Frisbie, 101 U.S. 475; Merriam v. Bachoni, 44 P. 481; Thrift v. Delaney, 69 Cal. 188; Reaves v. Oliver, 3 Okl., 62.) Whether a title to land once the property of the U. S. has passed must be determined by the laws of the United States. (Wilcox v. McConnell, 13 Pet., 498; Irvine v. Marshall, 20 How. 558.) The courts can exercise no direct appellate jurisdiction over the officers of the Land Department. (Quinby v. Conlon, 104 U.S. 420; Shepley v. Cowan, 91 id., 330.) The cancellation of an entry is not a ministerial act which can be enjoined. (Gaines v. Thompson, 7 Wall., 347.) On its cancellation the land is restored to the public domain. (N. P. Ry. Co. v. Amacker, 53 F. 48.) Land Department decisions are not subject to collateral attack. (Aurora Hill C. M. Co. v. 85 Min. Co., 34 F. 515.) A court of ordinary jurisdiction can not by its judgment between contending claimants forestall the action of the Land Department. (Forbes v. Driscoll, 4 Dak., 336; Adams v. Couch, 1 Okl., 17; Merriam v. Bachoni, 44 P. 481; U. S. v. Minor, 114 U.S. 233; Marquez v. Frisbie, 101 id., 473; Steel v. Smelting Co., 106 id., 450; U. S. v. Dudley, Johnson v. Towsley, Shepley v. Cowan, Lee v. Johnson, Quinby v. Conlon, Vance v. Burbank, supra; U. S. v. Schurz, 102 U.S. 48.)

The rule of caveat emptor applies to purchasers of an equity. (Polk's Lessee v. Wendell, 5 Wheat, 308; Vattier v. Hinde, 7 Pet., 27; Sampyreac v. U.S. id., 241; Boone v. Childs, 10 id., 179; Carroll v. Safford, 3 How., 461; Smith v. Shane, 1 McLean, 27; Dupont v. Waterman, 10 Cal. 354; Chew v. Barnett, 11 S. and R., 389; Pinson v. Ivey, 1 Yerg., 302; Craig v. Leifer, 10 Tenn. 193.) A purchaser after final proof and before patent is not protected as a bona fide purchaser. (Root v. Shields, 1 Woolw., 340; Kerr v. Watts, 6 Wheat., 550; Carrall v. Safford, 3 How., 461; Gray v. Stockton, 8 Minn. 472.) Cancellation is conclusive on the parties, in the absence of fraud, and a mortgage by a grantee of the entryman before cancellation is void. (Freese v. Rusk, 54 Kan. 274; Holmes v. State, 100 Ala. 291; State v. Buck, 46 La. Ann., 656.) The power of cancellation is not affected by a transfer to a purchaser without knowledge of the facts causing the cancellation. (Parsons v. Venzke, 4 N. Dak., 452.) A mortgagee after final receipt and before patent takes his mortgage subject to the supervisory power of the Commissioner. (Swigart v. Walker, 49 Kan. 100; Fernald v. Winch, 50 id., 79; Jones v. Myers, 2 Ida., 793; 35 Am. St., 259; Guidry v. Woods, 19 La. 334; Taylor v. Weston, 77 Cal. 534; Davidson v. Cucamonga L. Co., 78 id., 4.)

A decision of the Department of the Interior to cancel inchoate rights acquired by homestead entry is prima facie correct; and one assailing its correctness must show affirmatively that it is illegal and unauthorized. (Homes v. State, 14 So. 51; Parsons v. Venzke, 4 N. Dak., 452.) The Congressional Act of 1891 is not applicable, as the entry was canceled two years prior to the enactment.

There was no evidence to show a wrongful, forcible intrusion, but, on the contrary, the entry was peaceable and rightful.

GROESBECK, CHIEF JUSTICE. CONAWAY and POTTER, JJ., concur.

OPINION

GROESBECK, CHIEF JUSTICE.

This was an action brought by the plaintiffs in error in the district court for Albany County, to, in effect, restrain the defendant from continuing trespasses upon a tract of one hundred and sixty acres of land in that county. The plaintiffs claim title under a final certificate of...