Wolbol v. Steinhoff

• Decision Date: 01 November 1917
• Docket Number: 897
• Citation: 168 P. 251,25 Wyo. 227
• Parties: WOLBOL v. STEINHOFF, ET AL
• Court: Wyoming Supreme Court

168 P. 251

25 Wyo. 227

WOLBOL v. STEINHOFF, ET AL

No. 897

Supreme Court of Wyoming

November 1, 1917

Rehearing Denied 25 Wyo. 227 at 258.

ERROR to the District Court, Albany County; HON. V. J. TIDBALL Judge.

Action by Sarah Steinhoff, et al., against Katrine Wolbol, as executrix. Judgment for plaintiffs and defendant brings error. The material facts are stated in the opinion.

Reversed.

Corthell McCullough & Corthell, for plaintiffs in error.

Wolbol succeeded to all rights of the original entryman and of Lewis and the bank and held the same at the time of the land office proceedings, but the holders of the Dean title had no notice or knowledge of the land office proceedings. The rule that a decision of the land department relating to public lands and conducted upon notice is conclusive is well settled, but subject to two exceptions: (a) Where the land officials are imposed upon by fraudulent conduct, or where they depart from their own settled rules or decision, or where there is no evidence to sustain their findings or misapply the law, their action may be reviewed by a competent court having jurisdiction; (b) where the holder of a title or parties interested are not notified of the proceedings and do not participate in them, they are not concluded by the findings and decision of the land department, but may be vindicated in like manner in any court of equity gaining jurisdiction. Both defenses are open to the original defendant in this case, to-wit: fraud and lack of notice. One who complies with all the requisites necessary to entitle him to a patent is to be regarded as the equitable owner and the land is no longer open to location. (Wirth v. Branson, 98 U.S. 118.) Supervisory powers of the commissioner of the general land office over acts of local officers are not of an unlimited or arbitrary character and cannot be exercised so as to deprive a person of land lawfully entered and paid for. (Cornelius v. Kessel, 128 U.S. 456.) The courts have equitable jurisdiction to relieve against fraud or gross mistake. (James v. Iron Co., 107 F. 597, 600; Howe v. Parker, 190 F. 738, 746, 747; U. S. v. Detroit Lumber Co., 200 U.S. 321, 337, 338; Hemmer v. U.S., 204 F. 898, 905; McCord v. Hill, 111 Wis. 499, 84 N.W. 27, 85 N.W. 145, 87 N.W. 481; Caldwell v. Bush, 6 Wyo. 342.) The rule exemplified in the foregoing decision is more important and even more liberally applied to departmental proceedings than is the corresponding rule authorizing courts of equity to correct proceedings of law courts. The land was desert in character as shown by the evidence. (Babcock v. Watson, 2 L. D. 19, 20.) Reclamation by conducting water upon lands is sufficient irrespective of whether ditches were constructed or not. (Vibrans v. Langtree, 9 L. D. 419.) There was proof of reclamation under the rule established by the department. (D. L. E., 3 L. D. 385; In re. Ramsey, 5 L. D. 120.) Partial reclamation at the time of entry does not invalidate the entry. (Bickford, 7 L. D. 374.) Vested rights relate to the state of the law at the time. (James v. Iron Co., 107 F. 597, 89 F. 811; Howe v. Parker, 190 F. 738, 757.) Dean had parted with his equitable title at the time the land office proceedings were commenced and his grantees were entitled to notice. (U. S. v. Copeland, 5 L. D. 170, 171; Guaranty Savings Bank v. Bladow, 176 U.S. 453, 454, 455; Hawley v. Diller, 178 U.S. 476, 488, 489; Thayer v. Spratt, 189 U.S. 346, 351, 352; Whitney v. Spratt, 25 Wash. 62.) Actual knowledge does not dispense with the necessity of legal notice. (Howe v. Parker, 190 F. 738, 758; Delles v. Second National Bank, 7 Wyo. 66.) Wolbol has acquired the Steinhoff and Dean title since the commencement of this suit. The subject matter has been before this court in the prior cases of Laramie Bank v. Steinhoff, 7 Wyo. 464, and Laramie Bank v. Steinhoff, 11 Wyo. 290, 311, 312. For thirty years Dean and his grantees have been defending their right to this land, the title to which has been set at rest through the merger of both the Steinhoff and Dean titles in Wolbol. The question of title is no longer important, except as determining the right of Steinhoff to damages for use and possession during the period when Wolbol was holding under the judgment of the court already referred to.

H. V. S. Groesbeck, for defendants in error.

Matters not mentioned in the brief of plaintiff in error are waived. (Bank v. Ludvigsen, 8 Wyo. 230, 257; Phillips et al., v. Brill, et al., 15 Wyo. 521, 527; C. B. & Q. R. R., et al., v. Lampman, 18 Wyo. 106, 118; Boswell, Admr., v. Bliler, 9 Wyo. 277.) Only matters presented by motion for new trial can be considered. (Court Rule No. 13.) The assignment of error that decision was contrary to law was insufficient. (Miller v. State, 3 Wyo. 657, 660; Syndicate Imp. Co. v. Bradley, 7 Wyo. 228, 235; Freeburgh v. Lamoreux, et al., 12 Wyo. 41, 45.) The particular error must be pointed out. (Elliott on App. Proc., Sec. 853; C. B. & Q. R. R. Co. v. Morris, 16 Wyo. 308, 319.) The assignment here is indefinite. (Boburg v. Prahl, 3 Wyo. 325; 14 Ency. Pl. & Pr., 882, 883.) A statement in the language of the statute is insufficient. (Dawson v. Baum, 3 Wash. Ter. 464.) Assignment that findings and judgment not sustained by sufficient evidence and contrary to law presents no question for review. (Ferdinand R. Co. v. Bretz, 108 N.E. 967.) Or that verdict is against the law. (Raifesen v. Young, 167 S.W. 648, 183 Mo.App. 508.) Definite reasons must be stated. (Falloon v. Fenton, 167 S.W. 591, 182 Mo.App. 93; Crow v. Crow, 143 P. 689.) Under a statute like ours an assignment that the findings in the judgment of the court are not sustained by evidence and contrary to law held insufficient. (Bradford v. Wegg, 102 N.E. 845; Alexander v. Lumber Co., 154 S.W. 235; Byrd v. Vanderburgh, 151 S.W. 184; Dietz v. Barnard, 107 S.W. 766, 32 Ky. Law Rep. 1130; William Moneage & Co. v. Livingston, 43 So. 840; Elliott's App. Proc., Secs. 306, 308, 309.) Assignment should be that the verdict or finding by a court not sustained by sufficient evidence. (Hamric v. Hoover, 84 N.E. 28, 41 Ind.App. 411; Houston Co. v. Kalitta, 108 S.W. 175.) Objections should be urged to the findings of the court and not to judgment. (Elizalde v. Murphy, 103 P. 904; Bank v. Tregnitz, 111 P. 402.) Motion must specify wherein evidence insufficient. (Holland v. Canty, 137 P. 276, 23 Cal.App. 91.) The present motion raises only the question whether verdict authorized by any evidence. (Southern Ry. Co. v. Adams, 80 S.E. 912.) Evidence before trial court being conflicting, judgment must be affirmed. (Kester v. Wagner, 22 Wyo. 512; Evans v. Cement, Stone & Brick Co., 21 Wyo. 184; Crable & Son v. Connor, 21 Wyo. 460; Saratoga Land & Investment Co. v. Jensen, 20 Wyo. 323; Wyo. Irr. Co. v. Burroughs, 19 Wyo. 176; C. B. & Q. R. R. Co. v. McPhillamey, 19 Wyo. 426, 440.) The lands were partially reclaimed before entry. The cross-petition does not set out in full or as an exhibit all of the evidence taken before the land department; courts will not review decisions of the land department. (O'Reilly v. Moxon, 113 P. 486.) Except where mistake or fraud is shown. (Le Marchel v. Teagarden, 152 F. 662; Temple v. Osburn, et al., 106 P. 16; Ross v. Wright, 116 P. 949, 950, 951; James v. Iron Co., 107 Fed 597.) Wolbol has been guilty of laches, which should preclude equitable or other relief. The equitable defenses urged by plaintiff in error were considered by the land department. (John J. Dean, 10 L. D. 446, 447.) The mortgagee was bound by the notice given to the entryman. (Dean case, supra.) Laches need not be pleaded. (13 Ency. Pl. & Pr. 183.) Equity will not aid one guilty of laches. (26 Enc. L. 448; United States v. White, 17 F. 565.) Neither naked possession of nor rejected application for public lands will enable the party to attack a patent issued to another. (Buckley v. Howe, 86 Cal. 596, 25 P. 132.) Laches is a good defense in equity. Abraham v. Ordway, 158 U.S. 416, 423; Hammond v. Hopkins, 143 U.S. 224; U. S. v. Martinez, 184 U.S. 441, 46 L.Ed. 632.) Fifteen years having elapsed since Steinhoff's homestead entry, the action is barred by Sections 4295 and 4293, Comp. Stats. 1910. Steinhoff being an innocent party, his entry cannot be made subject to a trust in favor of Wolbol. (Chandler v. Dunbar Co., 209 U.S. 447-453, 52 L.Ed. 881.) Suits to annul patents must be brought within six years. (6th F. Stats. Anno. 526.) The decision of the land department is binding upon the courts. (DeCambra v. Rogers, 189 U.S. 119, 122, 47 L.Ed. 734, 735; Whitcomb v. White, 214 U.S. 15-19, 53 L.Ed. 889; Sullivan v. Damon, 202 F. 285; Shank v. Holmes, 137 P. 871; Knight v. United Land Association, 142 U.S. 211, 35 L. D. 974; Love v. Flahive, 33 Mont. 348, 83 P. 882, 205 U.S. 195, 51 L.Ed. 768, 206 U.S. 356; McKenna v. Atherton, 160 F. 547; Ayres v. U. S. 42 Court of Claims, 385; Emmons v. U. S. 175 F. 514; Forman v. Healey, 121 N.W. 1122; Greenmayer v. Coate, 212 U.S. 434, 435, 53 L.Ed. 587, 591; Hartman v. Warren, 22 C. C. A. 38; Carson City Gold & S. Min. Co. v. North Star Min. Co., 28 C. C. A. 344; Uinta Tunnel Co. v. Greede & C. Min. & Mill Co., 57 C. C. A. 207; Smelting Co. v. Kemp, 104 U.S. 636, 26 L.Ed. 875; Knight v. U. S. Land Assoc., 142 U.S. 211, 35 L.Ed. 974; Emmons v. U.S. 175 F. 514.) Whether the land is desert or not desert is a question for the land department and its decision is unassailable. (Steel v. St. Louis Smelting Co., 16 Otto., 116 U.S. 447; Little v. Williams, 113 S.W. 340; Heckman v. Mumford, 4 Alaska, 299, citing Behrends v. Goldsteen, 1 Alaska, 518; Hart v. Delphey, 136 N.W. 702; Levre v. Amonson, 81 P. 71, 11 Idaho 45; Craigie v. Roberts, 92 P. 97, 6 Cal.App. 309.) The issuance of a patent is a judgment as to the character of the land. (...