NORTON v. EVANS et al., 82 F. 804

BREWER, Circuit Justice, after stating the case as above, delivered the opinion of the court. Certain technical objections are made by the appellees to the sufficiency of the bill of complaint. One is that, while the plaintiff alleges that in 1895, at the time of the filing of the bill, he was over the age of 21 years, and duly qualified to enter a homestead under the laws of the United States, he does not allege that he was of that age or so qualified in 1885, when he filed his-application to enter. Another is that it appears that the land was within the terminal limits of a rail-" road land grant; that by

section 2357, Rev. St., the price of all public land within such limits was fixed at $2.50 per acre; that under sections 2289, 2290, Rev. St., no one could take on a homestead entry more than 80 acres; and that, as plaintiff avers he offered to enter 1(50 acres, the application was, on account of the insufficiency' of identification, void for either and both halves of the 160 acres. We do not care, however, to place our decision on any such technical objections, for we think the ruling of the secretary of the interior was right; that under said

section 5 the right to purchase the land was properly awarded to the grantees of the railway company. There is no allegation that the purchasers from the railway company were not bona fide purchasers, or that the land was not within the numbered sections of the grant to the railway company, and coterminous with the constructed parts of the road. On the contrary, the decision of the secretary of the interior affirms these facts. Olearly, therefore, the grantees of the company come within the provisions of the first part of

section 5, and, this being a remedial statute, and intended to protect those acting in good faith, should be liberally construed. There are two provisos to this section, — one ex eepting therefrom all lands which at the date of the sale by the rail - way company were in the bona fide occupation of adverse claimants under the pre-emption or homestead laws of the United States. That clearly has no application. There is no suggestion of any such adverse occupation.

The other proviso is that the “section shall not apply' to lands settled upon subsequent to the 1st da,y of December, 1882, by persons claiming to enter the same under the settlement laws of the United States.” But plaintiff had not settled upon the land. Ho certainly does not come, therefore, within the letter of this proviso. He had not even entered the land.

His contention is, however, that he had tried to enter the land, had a right to enter it; that his application was erroneously' refused by the local land officers; that he had sought to settle upon the land, and had been prevented therefrom by the wrongful acts of one of the defendants; that all this took place before the passage of the act of 1887; and that thereby he had acquired a vested right in the land, which, even congress could not take away. He refers to Ard v. Brandon, 156 U. S. 537, 15 Sup.

Ct. 406, as authority for the proposition that he could not be deprived of any rights by the wrongful acts of the local land officers, and insists that therefore the case must be treated as though he had actually made a homestead entry, and had acquired such a right in the land as was beyond the reach of congress to disiurb by subsequent legislation; and‘-concludes therefrom that the act of 1887 has no api>lication to Ms case. We are unable to agree with this contention. He is in no better position than if he had been allowed by the local land office to make the entry.

Such an entry creates no vested rights as against the United States, and does not interfere with the power of congress by subsequent legislation to dispose of the land. Frisbie v. Whitney, 9 Wall. 187; The Yosemite Valley Case, 15 Wall. 77; Buxton v. Traver, 130 U. S. 232, 9 Sup. Ct. 509; Campbell v. Wade, 132 U. S. 34, 10 Sup. Ct. 9. See, also, Winona & St. P. R. Co. v. U. S., 165 U. S. 463, 17 Sup. Ct. 381. The decree of the circuit court was right, and it is affirmed.