GERMANIA IRON CO. et al. v. UNITED STATES, 58 F. 334

THAYER, District Judge, after stating tbe facts, delivered the opinion of the court. The learned counsel for the appellants does not challenge the right of the attorney general, under the laws of the United States, to Ale a bill in behalf of the government to obtain the cancellation of a patent on the ground of fraud, accident, or mistake, where the government has an interest in, or is under an obligation in respect to, the relief sought,; and, in view of the decisions of the supreme court of the United States, the right in question could not he successfully challenged. U. S. v. Tin Co., 125 U.

S. 273, 285, 280, 8 Sup. Ct. Rep. 850; U. S. v. Beebe, 127 U. S. 388, 342, 8 Sup. Ct. Rep. 1083; U. S. v. Railway Co., 141 U. S. 358, 380-382, 12 Sup. Ct. Rep. 13.

But it is urged as grounds for reversal (and these are the only points which we deem it necessary to consider) that, upon the undisputed facts disclosed by tbe present record, tbe United States bad no interest entitling it to maintain the bill, and that, in any event, it was not entitled to a decree canceling tbe Keed patent on account of tbe mistake disclosed by tbe bill,' unless it alleged, and affirmatively proved, that other persons than Eeed bad a superior right to the land, and would probably have prevailed in tbe controversy before tbe secretary of tbe interior, if tbe mistake complained of bad not forestalled a decision.

We are compelled to dissent from both of these propositions. Tbe United States, in disposing of tbe public domain, through tbe action of its land department, cannot be relegated to tbe position of an ordinary private vendor of lands. As has been frequently declared, in substance, tbe government is clothed with a trust in respect to tbe public domain.

It is charged with tbe duty of protecting it from trespasses and unlawful appropriation, and likewise with tbe duty of enforcing the laws which have from time to time been enacted by congress, prescribing the terms and conditions upon which individuals may acquire a title to portions thereof.

For tbe purpose of supervising tbe execution of such laws, and all proceedings taken thereunder, it has created a land department, which is recognized as pertaining to the executive branch of tbe government; and this department has, in turn, established rules and regulations for tbe orderly conduct of its business, which, within certain well-defined limits, have the force and effect of law, and on the due observance of which all citizens have tbe right to rely. Smelting Co. v. Kemp, 104 U. S. 636, 640; U. S. v. Beebe, supra; U. S. v. Railway Co., supra.

Again, as tbe land department is charged with tbe execution of tbe laws relating to tbe sale and disposition of tbe public lands, it has a primary jurisdiction to bear and determine all contests involving claims to portions of tbe public domain; and tbe decision of tbe proper officers of the land department, upon questions of fact properly determinable by them, canpot be assailed in a collateral proceeding; Smelting Co. v. Kemp, supra; Beard v. Federy, 3 Wall. 478, 492; Marquez v. Frisbie, 101 U. S. 473, 476.

A patent for lands, when issued, thus becomes a powerful weapon of offense or defense; and for both of these reasons — that is; because of the primary jurisdiction lodged in tbe land department, and tbe weight accorded to its decisions — the courts have, on various occasions, refused to'take any action that would interefere with or forestall the final action of that department in a controversy properly pending before it. Marquez v. Frisbie, 101 U. S. 473, 475; Casey v. Vassor, 50 Fed. Rep. 258.

In view of these considerations, it cannot be successfully maintained that the United States bad no interest in, and was under no obligation .in respect to, the relief sought, that entitled it to maintain tbe present bill, or that it was bound to show affirmatively, as a condition precedent to a decree in its favor, that Reed was not entitled to the land.

By sheer accident — by an oversight of a subordinate clerk — a person had obtained a patent for public land said to be worth $75,000, not only in violation of a long-standing rule of the department, but contrary to an express order of the commissioner of the general land office, suspending, for the time being-, all action “looking to a disposal of the land.” The interest of the government lies in its obligation to its citizens to see that the rules and regulations made by the land department for the guidance and protection of the citizen are faithfully observed, and in the further fact that a primary jurisdiction vested in one of the co-ordinate branches of the government has been inadvertently wrested from it, and transferred to another, where one of the claimants, in view of the outstanding patent, will be compelled to pursue the contest with his adversary at a great disadvantage.

And, having .such an interest in the prosecution of the suit, the courts will not compel the government, as a condition precedent to obtaining relief, to try the very question which was pending before the land department at the time it lost jurisdiction, and to show affirmatively that some other person than the patentee had a superior right to the land. It is sufficient for the purposes of this suit that some other person may have a superior right, and that it is Uie function of the land department to determine that question in the first instance.

Touching the question of the interest of the government to maintain the present bill, the views which we have expressed find support in a. recent decision heretofore cited. U. S. v. Railway Co., 141 U. S. 358, 380, 12 Sup. Ct. Rep. 13.

In that case it appeared that, through a mistake on the part of the officers of the land department, certain lands had been wrongfully patented to a railway company, as a part of its land grant, on which lands many persons had settled, claiming a right to do so under the homestead and pre-emption laws, although the officers of the land department had not permitted such settlers to do any act with them, officially, for the purpose of perfecting their titles. On a bill filed by the attorney general, in behalf of the United States, to vacate said patent, Mr.

Justice Harlan said, concerning the right of the government to sue, “that it was under an obligation to claimants under the homestead and pre-emption laws to undo the wrong alleged to have been done by its officers, in violation of law, by removing the cloud cast upon i1s title by the patents in question, and thereby enable itself to properly administer these lands, and give clear title to those whose righ ts may be superior to those of the railway company.” In other words, the court refused to compel the settlers to prosecute a private suit against the holder of a patent which had been inadvertently issued, holding that it was the right and duty of the government to sue, in such cases.

The case of Williams v. U. S., 138 U. S. 514, 11 Sup. Ct. Rep. 457, more pointedly supports the views that we have expressed. In that case a notation opposite a particular tract of land, described on a list of lands that had been selected by the state of isfevada, to the effect that it was a “mill sit.e,” was erased while such list was on file in the land department, awaiting the approval of the secretary of the interior. It was conceded, for the purpose of ,the decision, that the erasure was due to inadvertence and mistake.

The existence of the notation would have prevented the secretary of the interior, in" the orderly discharge of his duties, from approving the list, as it was his province to do under the act authorizing the state of Nevada to select certain lands, until a pending controversy as to the right of the state to select the particular tract had been determined. But the accidental erasure of the notation led the secretary of the interior to approve the list, and forward the same to the governor of the state.

On a hill filed by the United States against a person who had a contract with the state to purchase the tract of land noted as a “mill site,” to cancel such contract of sale, and to divest his title, on the ground that the lands had been improperly certified to the state through fraud and mistake, it was held that the United States was entitled to the relief sought solely on the ground of mistake.

And to the argument strongly urged against the United States, that it was not entitled to relief because, in any event, under existing laws, the state had an undoubted right to select the particular tract, and must have prevailed in any controversy touching that right, the court answered, in substance, that, conceding such to be the case, there was a limited discretion imposed on the secretary of the interior in the matter of approving the selection, which, through accident and mistake, he had been deprived of the right to exercise; that, but for the erasure of the notation, the secretary might, ’ at least, have withheld his approval until the right of selection under existing laws had been finally determined by the department, or until some relief had been afforded by special act of congress ‘to the party who contested the state’s right of selection.

It must be conceded, we think, that the last-mentioned decision strongly supports every position which has been assumed by the government, even if it is not decisive of the present controversy. Our conclusion is that the decree of the circuit court was right, and it is hereby affirmed.