MERRILL et al. v. CHICAGO, ST. P., M. & O. R. CO., 70 F. 464

JENKINS, Circuit Judge, after stating the facts, delivered the opinion of the court. Unless the lands in question were open to settlement, and were subject to be taken under the homestead and pre-emption laws of the United States, the appellants acquired no rights in the lands by their settlement upon them. If the order of revocation of August 17, 1887, was inoperative at the time of such settlement, the acts of the appellants in settling upon the lands were without authority of law, and of no effect as the foundation of any right to the lands. Riley v. Welles, unreported officially, but reported in 19 U.

S. (Lawy. Ed.) 648; Wolcott v. Des Moines Co., 5 Wall. 681; Wolsey v. Chapman, 101 U. S. 755, 766; Bullard v. Railroad Co., 122 U. S. 167, 176, 7 Sup. Ct. 1149; Hamblin v. Land Co., 147 U. S. 531, 536, 13 Sup. Ct 353; Spencer v. McDougal, 159 U. S. 62, 15 Sup. Ct. 1026. In the case of Wolcott v. Des Moines Co., supra, the withdrawal by the land department of lands beyond the terminus of a grant was sustained. In Spencer v.

McDougal, supra, an order withdrawing from sale all lands within a'certain district, in which lands had been granted in aid of the construction of a railroad, defeated the preemption of land thus withdrawn, although more was withdrawn than necessary for the purposes of the grant. The question of the rights of the appellants therefore hinges upon the proper construction of the order of the commissioner of the land department of September 9,’ 1887.

It is insisted for the appellants that the effect of this order was merely to suspend the publication of the 30-days notice of the time when filings and entries would be received at the local land office; that the order did not suspend the right of settlement, or that at most the suspension of the right of settlement was limited to lands which had theretofore been selected by the company, which selections had theretofore been approved, or were then awaiting approval, by the department. We cannot concur in this contention.

It is evident from the action of the department that the order of August 17, 1887, revoking the orders withholding these lands from market, was issued under misapprehension of the rights of the company. The error was sought to be rectified by a revocation of that order, and a restoration of the original order of withdrawal from market pending the settlement of the claims of the railroad company.

The telegraphic order of September 9th directs the local officers “to suspend the restoration of such lands until further order.” The written communication of the same date refers to the telegraphic order, and states that the action was taken pending the final adjust" ment of the company’s selection of lands.

It speaks of the telegraphic order as one “directing the suspension of the restoration and of the indemnity selections of the Omaha Company,” and instructs the officers, “You will accordingly continue the suspension until further orders.” The department recognized the fact that its action in issuing the order of August 17th was inadvertent, — that the claims of the company were still unadjusted, — and it «ongitt revoke the action which it had taken in the belie" tlm< . ítyns had all been adjusted, and that the coin pan- 1 ⅛ re. ,.a all the lands to which it was entitled. cüdóubtédly the commissioner sought simply a revocation of lire'order ol August 17 th.

Such being the manifest and , „:ly object to íx> attained, we would not look for an order suspending ii.wtyy ¿he publication of the notice of time for receiving filingo ai, < «mines that did not also suspend the light of settlement upon hinds. If settlement upon lands within the indemnity limits wore permitted, great difficulty would be created with respect ¡o ¿¿elections by the company, while the suspension merely of filing1! and entries would only concern the consummation of inchoate rights, and could he controlled by the action of the department.

The construction contended for would not accomplish the ohhri that the commissioner of the land office liad iri view. Aor do we ¡¡trink that the language of the order is subject to the

interpretation claimed by the appellant. The telegraphic order directs the ■ ¿««sponsion of the restoration of the indemnity lands. The language includes all lands within the indemnity limits subject to selection by the company if and when its claim should be passed upon and allowed. The letter of the same date, referring to the telegraphic, order, speaks of it- as directing “the suspension of the restoration and of the indemnity selections.” This expression is clearly inadvertent, and as shown by the secretary of the interior in Shire v. Railway Co., 10 Land Dec. Dep.

Tut. 85, meaningless, if literally interpreted. This was the practical construction of this order by the department in the administration of its duties, and should be followed by the courts unless there he cogent and clear reasons compelling, to the contrary. U. S. v. Moore, 95 U. S. 760, 763.

Our judgment of the proper construction to be placed upon this order concurs with that placed upon it by the department, and we are clear in opinion that the effect of the order was to suspend the order of August 17th, and wholly to withdraw these lands from settlement pending the adjustment of the claims of the railroad company. It necessarily results from this conclusion that these lands were not open to settlement by the appellants.

Their settlement upon them, whatever Its character, was not made until long after the order of September 9th, and at a time when the lands were not subject to he acquired by them, and they have therefore obtained no right t.o them. We see nothing in the opinion of the supreme court in Railroad Co. v. Forsythe, 159 U. S. 46, 15 Sup. Ct. 1020, decided since the argument of this case, and to which our attention has been called by counsel, which affects the rights of the parties here.

It’ is urged that within that decision the Omaha Company could not rightfully select the lands in contro: versy as indemnity lands, because they are included within the place limits of the grant to the Wisconsin Central Railroad Company. No facts, are disclosed by this record which bring this case within that decision, and if the facts are as claimed we are at a loss to understand that the rights of the appellants would be thereby strengthened.

If the lands were not subject to selection by the Omaha Company, or could be rightly claimed by the Wisconsin Central Company, or if "•⅜⅛ equitable right to the lands still remains in the United States, thcsf-Wefe^SJ not subject to settlement by the appellants under the law, because under- the order they were withdrawn from the market, and the appellants ceffa'íxny-~aequired no rights in the lands, and are in no position to gainsay thegT-aat^pf them by the government to the Omaha Company.

It becomes urffiQcessary therefore for us to consider the very interesting questions argUed at the bar, whether the court can set aside a patent issued by the''government without the presence of the United States as a party, when'the effect of such judgment would be to cause the title to revert to government, and whether the appellants, without having taken proper-proceedings to perfect their supposed rights in the lands, could maintain the bill. The decree will be affirmed.