Graham v. Great Falls Water Power & Town-Site Co.
| Decision Date | 16 May 1904 |
| Citation | 76 P. 808,30 Mont. 393 |
| Parties | GRAHAM v. GREAT FALLS WATER POWER & TOWN-SITE CO. et al. |
| Court | Montana Supreme Court |
Commissioners' Opinion. Appeal from District Court, Cascade County; J. B Leslie, Judge.
Suit by James Graham against the Great Falls Water Power & Town-Site Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.
Geo. M Borquin, for appellant.
L Parker Veazey, for respondents.
The defendant had judgment below upon the pleadings, and plaintiff has appealed. From the complaint, answer, and reply it appears that on February 24, 1883, one Archibald C Campbell filed in the United States Land Office at Helena, Mont., a pre-emption declaratory statement upon the southeast quarter of section 10, in town-ship 20 north, of range 3 east of the Montana principal meridian, alleging his settlement thereon as of date February 16, 1883. In the following October he submitted final proof thereon, upon which cash entry No. 1,373, Helena, Mont., Series, was made for the land in the local land office, and on October 17, 1883, he obtained the usual receiver's final receipt therefor. Three days thereafter Campbell sold the land to Timothy E. Collins for $1,000. Thereafter Collins sold the land to Paris Gibson and Robert Vaughn. Thereafter, and on October 25, 1886, Vaughn conveyed an undivided one-half interest therein to James J. Hill. On February 23, 1887, Gibson and wife conveyed the land to the defendant, the Great Falls Water Power & Town-Site Company, hereafter to be referred to as the "Town-Site Company." The defendant St. Paul, Minneapolis & Manitoba Railway Company is a grantee of the defendant town-site company. On May 28, 1887, the plaintiff filed in the United States Land Office at Helena an offer to contest the Campbell entry, alleging that it was fraudulent and invalid. Plaintiff's offer to contest was allowed, and the hearing thereupon was had, commencing in December, 1887, and extending into January, 1888. Prior to the hearing Campbell died. The defendant town-site company defended the contest proceedings.
It seems that the local land officers at Helena, Mont., dismissed the contest, and plaintiff appealed to the Commissioner of the General Land Office. On November 25, 1890, the commissioner rendered a decision holding the Campbell entry intact, and adjudged that the contest initiated by Graham be dismissed. On December 19, 1890, plaintiff prayed for a review and reconsideration of the commissioner's decision rendered November 25th preceding, which was granted. On February 25, 1891, the commissioner rendered a decision revoking and setting aside his decision of November 25, 1890, and holding Campbell's cash entry for cancellation. On March 26, 1891, the town-site company applied to the Commissioner of the General Land Office by petition to have the Campbell entry declared confirmed by virtue of section 7 of the act of Congress approved March 3, 1891, c. 561, 26 Stat. 1098, upon the ground that the town-site company was a bona fide purchaser of the land within the meaning of the act. Thereafter, and on April 24, 1891, the commissioner made and filed an order suspending his previous order of February 25, 1891, staying all proceedings thereunder. Thereafter the commissioner, having taken proof upon the question as to whether the town-site company was a bona fide purchaser within the meaning of the act of March 3, 1891, found it so to be, and declared the Campbell entry confirmed by virtue of said act. From this action on the part of the commissioner Graham appealed to the Secretary of the Interior, who, on May 23, 1895, dismissed the appeal, approved the order of the commissioner, and confirmed the Campbell entry to the town-site company. Patent for the land was issued and delivered to the company on August 17, 1895. On December 24, 1898, the plaintiff commenced this action for the purpose of having the defendants declared his trustees for the land in question, praying that they be decreed to execute and deliver to him a deed therefor free from all incumbrances done or suffered by them.
Plaintiff contends: (1) That he had the first legal claim to the land upon the cancellation of the entry. (2) That the Campbell entry was canceled when the act was passed, and the commissioner's judgment holding the same for cancellation has never been modified, reversed or set aside; that it was erroneously and wrongly suspended because of the misconstruction of the operation of the act of 1891. (3) By accepting the government's offer to contest, spending his money thereon, and procuring the cancellation of the entry, plaintiff had a vested right to purchase the land, which right was property within the meaning of the law. (4) Contests then pending were not intended to be included within the operation of the act of 1891.
When plaintiff began his contest he relied upon section 2 of the act of May 14, 1880, c. 89, § 2, in which it is provided that "in all cases where any person has contested, paid the land office fees, and procured the cancellation of any pre-emption, homestead, or timber-culture entry, he shall be notified by the register of the land office of the district in which such land is situated of such cancellation, and shall be allowed thirty days from date of such notice to enter said lands." 21 Stat. 140 [U. S. Comp. St. 1901, p. 1392]. As we have seen, on February 25, 1891, plaintiff's contest was sustained, and the Campbell entry was held for cancellation. On March 3, 1891, "An act to repeal the timber-culture laws, and for other purposes," became a law. Section 7 of this act provided in part: "And all entries made under the pre-emption, homestead, desert-land, or timber-culture laws, in which final proof and payment may have been made and certificates issued, and to which there are no adverse claims originating prior to final entry and which have been sold or incumbered prior to the first day of March, eighteen hundred and eighty-eight, and after final entry, to bona fide purchasers, or incumbrancers, for a valuable consideration, shall unless upon an investigation by a Government Agent, fraud on the part of the purchaser has been found, be confirmed and patented upon presentation of satisfactory proof to the Land Department of such sale or incumbrance." 26 Stat. 1098. So long as title to the public domain remains in the United States, the individual citizen has no privileges therein save such as are granted by statute. His right to obtain land under the federal statutes is a mere bounty extended to him by a generous government. Until his rights become vested in a specified tract of land, as we shall see, Congress may take from him any privileges it has theretofore extended to him. The act of 1880, supra, was passed for the purpose of exposing and preventing fraud in the acquisition of the public lands, as well as to restore the lands to the public domain. As a reward for prosecuting a contest to a successful completion, Congress gave to the contestant a preferential right, as against other entrymen, to enter the land which had been restored to the public domain through his efforts. While the fraudulent entry was pending, the land was temporarily withdrawn out of the public domain, and beyond the reach of other entrymen. Hodges v. Colcord, 24 Sup, Ct. 433, 48 L.Ed. ___. So that, unless Congress otherwise disposed of the land embraced in the Campbell entry upon its cancellation, plaintiff had the first right to purchase it. But was the Campbell entry ever canceled? The local officers recommended that plaintiff's contest be dismissed. The Commissioner of the General Land Office decided against plaintiff, and directed such dismissal. Upon rehearing the commissioner revoked and set aside his first decision, and held the Campbell entry for cancellation. The townsite company had 60 days in which to appeal from this decision to the Secretary of the Interior. Rule 86, 4 Land Dec. 47. Failing to appeal, the commissioner's decision would have become final. Rule 112, 4 Land Dec. 49; Murray v. Polglase, 17 Mont. 455, 43 P. 505. Within the time limited for appeal the town-site company applied for a confirmation of its title under the act of March 3, 1891, alleging itself to be a bona fide purchaser thereof. On April 24, 1891, also within the time allowed the town-site company to appeal, the commissioner suspended his judgment of February 25, 1891, and stayed all proceedings thereunder, and, upon taking proof found the town-site company to be a bona fide purchaser of the land, confirmed the entry, and dismissed plaintiff's contest. It is apparent, therefore, that plaintiff never procured the cancellation of the Campbell entry. It never was canceled.
If the commissioner had the right to revoke and set aside his judgment of November 25, 1890, he had a like right to suspend that of February 25, 1891. He finally dismissed plaintiff's contest, which was a final judgment in favor of the town-site company. Whether he misconstrued the law in so doing we shall see later on. But under the view we take of this case it is immaterial whether plaintiff procured the cancellation of the Campbell entry or not. Let us concede that he did procure its cancellation, and therefore had the first right to enter the tract of land thus restored to the public domain. His position then was the same as if he had been a pre-emptor who had made settlement of and improvement upon public land, but had not yet made entry thereof. It will be remembered that a pre-emptor was one who, by settlement upon and improvement of public land, acquired a preferential right to purchase the particular tract in his occupancy, if it did not exceed 160 acres in extent, at the minimum price thereof, when the land was or became open to...
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