MOSS v. DOWMAN, 88 F. 181

SHIRAS, District Judge, after stating the case as above, delivered the opinion of the court. In the brief filed by counsel for appellant, it is admitted that it is well settled that “all questions of fact presented and decided in a controverted proceeding, where both parties are heard, are concluded by the department decision, and are binding on the court.

But where the officers of the land department have, by a mistake of law, giren to one man the land which, upon the facts found, belongs to another, equity will grant relief by putting the title where of right it ought to be.” In this case it appears that a controverted proceeding was had between the parties before the secretary of the interior, in which it has been decided that at the time, to wit, October 24, 1890, when complainant made application to enter the land, Dowman was then a settler thereon in good faith, and, this being true as a matter of fact, the only question of law arising thereon is whether the complainant could make a homestead entry thereof Which would be effectual against the pre-existing actual occupancy of Dowman.

On behalf of appellant it is argued that Dowman cannot be permitted to take advantage of the entry and occupation by him initiated September 19, 1890, because the land was not then open to homestead entry by reason of the then pending application of Doran; that, the land being thus segregated from the public lands open to entry, the attempt of Dowman to obtain a settlement was illegal, and, the attempted entry being illegal, no rights can grow out thereof, on the principle that no person should be permitted to obtain an advantage by reason of his own wrong or illegal acts.

The action of Dow-man in going upon the land, for the purpose of making a homestead thereon, was not illegal or wrongful, within the meaning of the rule invoked. When Dowman’s entry was made no one was upon the land, and there was nothing to show that any one claimed it, except the entry of Doran’s application on the records of the land office at Duluth, some hundreds of miles distant.

If Doran’s application had ripened into a title, Dowman’s actual entry on and settlement of the land would have been ineffectual to defeat it, but it would be effectual and legal against all parties whose rights were acquired subsequent to the entry thus made. By the relinquishment of Doran’s claim, the land became again subject to entry, and Dowman’s actual possession and occupancy at once became effectual in his favor.

His action in taking possession in September, and continuing the same thereafter, might have been ineffectual as against Doran, but such action was not illegal and wrongful in such sense that he cannot claim the benefit thereof as against the appellant, whose entry .was not made until the 24th day of October, 1890. The facts show that Doran’s entry was relinquished on that day, and the land was then restored to the unappropriated public domain.

When this restoration of the land took place, Dowman was a settler thereon in good faith, living on the land, and his rights attached as soon as the land became subject to entry.

The facts, as found by the secretary of the interior, show that Dowman was in possession of the land, in good faith, for homestead purposes, during the whole of the 24th day of October, 1890; and, as a matter of fact, it is impossible for the appellant to show that, when she filed her application in the land office on that day, the land was not then in the possession of Dow-man, and she is of necessity driven to claim, as matter of law, that Dowman’s entry was illegal and wrongful, and that, as her application was filed in the land office at the same time she filed the Doran relinquishment, she becomes entitled to the benefit of the Doran entry, as against the effect of the existing possession by Dow-man.

The evidence shows that appellant paid Doran fl,000 to relinquish his entry, but by this payment she did not become the as-signee of Doran’s rights or entry. The payment was made in consideration of Doran relinquishing his entry, in order that thereby the land might be restored to the unappropriated public domain, and thus become open to other entries. It is not open to appellant to insist that she is, in any sense, the successor to, or assignee of, the Doran entry.

The payment to Doran of the sum named created no equity or right in favor of appellant as against Dowinan, and the only legal effect that can be given to the relinquishment executed by Doran is that thereby the land became again open to appropriation under the homestead act, and, being thus released from the effect of the Doran entry, the appellant made application at the land office to enter the land, which application is in law effectual from its date; but the fact, as found by the secretary of the interior, is that, when this application was made, the land was then occupied by a bona fide settler, and there is no legal or equitable ground for holding that the right conferred by such prior possession and occupancy must be postponed to the right created by the application filed in the land office.

Counsel for appellant claim that their position is sustained by the ruling of the supreme court in Wood v. Beach, 156 U. S. 548, 15 Sup. Ct. 410. In that case it appeared that Wood, in 1870, had occupied certain lands in Kansas, seeking to make a homestead thereof, which were within the indemnity limits of a railroad grant then existing, and under which the land had been withdrawn from sale or entry by proper orders of the land department, entered in 1867.

The final selection of thé laud under the railroad grant was made in 1872, and the deed from the state to which the title passed under the act of congress was made, in 1878, to the defendant Beach.

The supremo court held that the withdrawal orders in 1867 wure sufficient to defeat a settlement for homestead purposes taking effect while the orders were in force, because thereby the land was in fact withdrawn from sale or entry, and, as the railway company subsequently perfected its right to the land and made selection thereof, its rights could not be defeated by any supposed equities existing in favor o Wood, who made his homestead entry with full knowledge of (he facts.

This ease would be an authority in point, if the present contest was between Doran, claiming under his entry in the land office, and Dowman, claiming under an actual settlement made after the Doran entry had been filed; but it is not applicable to the question at issue between the present litigants.

In the brief submitted for appellant, counsel have cited many decisions of the land department for the purpose of showing that from 1859 to 1885 it was uniformly held “that no right upon cancellation of an entry inured by reason of a settlement made during its existence; that to hold otherwise would be to enable a trespasser to benefit by his own wrong;” and it is therefore claimed, under the rule of stare decisis, that the secretary made a mistake of law in not following the doctrine claimed to be established by the decisions cited; but counsel further show in their brief that, since 1885, modifications of the previous ruling, have been made, and recognition has been given to settlements made under circumstances similar to those existing in the present case, and that since August 20, 1890, the rulings of the department are to the effect that a settlement made in good faith and prior in time will be held good as against a filing or application tendered simultaneously with the relinquishment or cancellation of a pre-existing entry.

It thus appears that if the secretary in this case had held that Dowman’s entry and settlement, though made in good faith, were not available to him upon the relinquishment of Doran’s entry, such ruling would have been contrary to that established by the later decisions of the department; and certainly it cannot be said that, in following the later rulings, the secretary violated any recognized rule of law; and it is only when it is made plain that the officers of the land department have, by a mistake of law, deprived a party of land to which he is rightfully entitled that a court of equity is justified in setting aside the action of the department.

Moore v. Robbins, 96 U. S. 530; Marquez v. Frisbie, 101 U. S. 473; Quinby v. Conlan, 104 U. S. 420. Being of the opinion that the facts set forth in the bill herein filed do not make a case for. the intervention of a court of equity, within the rule laid down in the cases cited, it follows that the trial court did not err in dismissing the bill on the merits, and the decree to that effect is affirmed.