Whitehill v. Victorio Land & Cattle Co.
| Decision Date | 12 January 1914 |
| Citation | 139 P. 184,18 N.M. 520,1914 -NMSC- 010 |
| Parties | WHITEHILL v. VICTORIO LAND & CATTLE CO. |
| Court | New Mexico Supreme Court |
Rehearing Denied Feb. 11, 1914.
Syllabus by the Court.
An attempted exercise of jurisdiction by the land department in the acceptance of an entry, including lands reserved from entry by the government, where the reservation from entry appears as a matter of record in the land office, is void, as to the lands reserved, for the reason that it is an assumption of power in excess of its jurisdiction, and the same can be shown by a defendant in an action at law.
Additional Syllabus by Editorial Staff.
As to matters of fact, findings of the officers of the land department of the United States within the scope of their authority are conclusive, in the absence of fraud and mistake, on the principle of estoppel by a former adjudication.
Appeal from District Court, Luna County; Neblitt, Judge.
Action by Mary Bell Whitehill against the Victorio Land & Cattle Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.
Wilson & Walton, of Silver City, for appellant.
J. S Fielder, of Deming, for appellee.
HANNA J. (after stating the facts as above).
The first error assigned and presented for the consideration of this court is based upon a refusal of the district court to instruct the jury that plaintiff could not recover for injuries to that portion of the land covered by plaintiff's desert entry which was subsequently canceled. It appears from the record that, prior to the time when plaintiff filed her desert land entry declaration in the local land office, a 40-acre tract included in her entry had been reserved from entry by the government. Subsequent to her entry, plaintiff was cited to show cause why that portion of her entry should not be canceled, and, failing to make a showing, the entry was canceled as to the 40 acres in question but not until after the trespass complained of in this action.
It is contended by the appellant that, the subdivision of plaintiff's entry not being subject to entry, the receiving and allowing of entry by officers of the local land office was without authority, and therefore void. On the other hand, appellee contends that an entry of land valid on its face constitutes such an appropriation and withdrawal of the land as to segregate it from the public domain and appropriate it to private use, and, even though the entry may be in fact invalid, no lawful entry or settlement can be made on the land by another person. With this contention we agree and we find the principle supported by the following well-considered authorities: James v. Ger. Iron Co., 107 F. 597, 46 C. C. A. 476; Hastings, etc., Railroad Co. v. Whitney, 132 U.S. 357, 10 S.Ct. 112, 33 L.Ed. 363; Parsons v. Venzke, 164 U.S. 89, 17 S.Ct. 27, 41 L.Ed. 360; Hodges v. Colcord, 193 U.S. 192, 24 S.Ct. 433, 48 L.Ed. 677; McMichael v. Murphy, 197 U.S. 304, 25 S.Ct. 460, 49 L.Ed. 766; Holt v. Murphy, 207 U.S. 407, 28 S.Ct. 212, 52 L.Ed. 271.
We do not overlook appellant's contention that the rule referred to is applicable only to cases where the entries or filings are valid when made, or at least are only voidable by reason of facts not apparent upon the records, and that, in the case under present consideration, the same records by which were proved the making of the entry showed a portion of the land included therein had been heretofore reserved, for which reason the land was not subject to entry and as to the portion reserved the entry was void. The record in this case is not clear as to the character of reservation, or withdrawal from entry, which the subdivision of land included within the desert entry had been subjected to. The language is that the land had been reserved from entry by the government of the United States.
We are not to consider the question as one arising between the government and the entryman, but as affecting the status of the entry at the time of the alleged trespass by appellant. It would seem to turn upon the point of whether a portion of the entry was void, or only voidable, by reason of the pre-existing reservation. It is apparent that the officials of the land office have, in the matter of the cancellation of that portion of the entry canceled, pursued a course which it may be argued recognized the entry as one of prima facie validity. The withdrawal of the land was a fact peculiarly within the knowledge of the officials of the land office. The fact that the officers of the land office were in error in overlooking an order of withdrawal of the land from entry would not, as a matter of first impression, make the entry void, but rather voidable, upon the question being raised by the party entitled to raise it; i. e., the government. The cases cited, supra, are those where latent defects exist; the entry being, so far as could be known at the time of its making, prima facie valid, but investigation subsequently developing that the entryman was disqualified to make the entry, or had perpetrated fraud, conditions to be discovered by evidence dehors the record, and being essentially questions of fact.
It has long been settled that as to matters of fact, within the scope of the authority of the officers of the land department of the United States, their findings must be taken as conclusive, in the absence of fraud and mistake, upon the principle of estoppel by former adjudication. Johnson v. Towsley, 13 Wall. 72, 20 L.Ed. 485; Moore v. Robbins, 96 U.S. 530, 24 L.Ed. 848; Smelting Co. v. Kemp, 104 U.S. 636, 26 L.Ed. 875; Sanford v. Sanford, 19 Or. 3, 13 P. 602.
If the reservation of the land in question from entry is a question of fact, to be determined by the land officials, then the district court would be concluded by the finding of the officials, as evidenced by the acceptance of the entry, and no error could now be predicated upon the refusal of that court to instruct the jury, that plaintiff could not recover for injuries to that portion of the land reserved from entry. If the reservation from entry, however, deprived the officials of all jurisdiction over the land, and left them devoid of authority to consider a filing upon the land reserved, then the acceptance of the entry would be without jurisdiction and absolutely void, all of which could be inquired into in an action at law.
No cases in point have been cited, nor have we been able to find any, where the facts were analogous to those now before us. Appellant has cited the case of Burfenning v. Chicago, St. P., etc., Ry. Co., 163 U.S. 321, 16 S.Ct. 1018, 41 L.Ed. 175, where the United States Supreme Court, speaking by Mr. Justice Brewer, said: "It has undoubtedly been affirmed over and over again that in the administration of the public land system of the United States questions of fact are for the consideration and judgment of the land department, and that its judgment thereon is final. Whether, for instance, a certain tract is swamp land or not, saline land or not, mineral land or not, presents a question of fact not resting on record, dependent on oral testimony; and it cannot be doubted that the decision of the land department, one way or the other, in reference to these questions, is conclusive and not open to relitigation in the courts, except in those cases of fraud, etc., which permit any determination to be re-examined. Johnson v. Towsley, 13 Wall. 72 ; Smelting Co. v. Kemp, 104 U.S. 636 ; Steel v. Smelting Co., 106 U.S. 447 [1 S.Ct. 389, 27 L.Ed. 226]; Wright v. Roseberry, 121 U.S. 488 [7 S.Ct. 985, 30 L.Ed. 1039]; Heath v. Wallace, 138 U.S. 573 [11 S.Ct. 380, 34 L.Ed. 1063]; McCormick v. Hayes, 159 U.S. 332 [16 S.Ct. 37, 40 L.Ed. 171]. Smelting Co. v. Kemp,
104 U.S. 636-646 ; Wright v. Roseberry, 121 U.S. 488, 519 [7 S.Ct. 985, 30 L.Ed. 1039]; Doolan v. Carr, 125 U.S. 618 [8 S.Ct. 1228, 31 L.Ed. 844]; Davis' Adm'r v. Weibbold, 139 U.S. 507, 529 [11 S.Ct. 628, 35 L.Ed. 238]; Knight v. U.S. Land Ass'n, 142 U.S. 161 [12 S.Ct. 258, 35 L.Ed. 974].
It is to be noted that the illustrations given of the rule by Mr. Justice Brewer, were specifically limited to cases not presenting facts resting on record, which is not a condition in the present case; the records of the land office, in this instance, showing a reservation. Were the present case one where a reservation had been made by act of Congress, there would be no question but the authorities last cited would be analogous and controlling upon this court. What distinction can there be, however, as a matter of principle, between a reservation from homestead of certain lands by act of Congress and a reservation from entry of lands by executive proclamation or departmental withdrawal. Is not the jurisdiction of the land department as effectively cut off in the one case as in the other?
In the case of New Dunderburg Min. Co. v. Old, 79 F. 602, 25 C. C. A. 120, speaking of the jurisdiction of the land department, the court said:
Our inquiry is thus limited to the question of the power of the local land office officials to accept and give validity to an entry upon lands reserved from entry by the government, where the reservation is shown upon the records of the land office. A case more nearly in point than all others we have examined is Morton v. Nebraska, 21 Wall. 660, 22 L.Ed. 639, cited in the Burfenning Case, where the facts disclose that patent had issued for saline lands, noted as such on the field books, although the notes thereof had not been transferred to the register's general...
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