VILAS et ux. v. ALGAR et al., 109 F. 519

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court. The appellants contend that the instrument executed and delivered by W. C. Hill to A. S. Moore and his associates conveyed to the latter an equitable interest in the land, which was not affected by the judgment which was rendered for the plaintiff in the suit of Alger v. Hill and others, and that the circuit court erred in ruling that Minniek, by virtue of his pre-emption entry and settlement upon the land in controversy, acquired an equitable title thereto superior to the rights of the appellants.

The statute of March 3, 1877 (19 Stat. 392), entitled “An act respecting the limits of reservations for townsites upon the public domain,” provided in

section 1— “That the existence or incorporation of any town upon the public lands of tbe United States shall not be held to exclude from pre-emption or homestead entry a greater quantity than twenty-five hundred and sixty acres of land, * * * unless the entire tract claimed or incorporated as such toivnsite shall. Including and in excess of the area above specified, be actually settled upon, inhabited, improved, and used for business and municipal purposes.” Provision was made in

section 3 authorizing the commissioner of the general land office to require the authorities of any town on thé public domain whose corporate limits included lands in excess of the maximum area specified in

section 1 to elect what portion should be withheld from pre-emption and homestead entry, and declared that thereafter the residue of such lands should be open to disposal under the homestead and pre-emption laws.

Section 2 contains the provisions which we are called upon to construe in the present case.

It provides as follows: “That where entries have been heretofore allowed upon lands afterwards ascertained to have been embraced in the corporate limits of any town, but which entries are or shall be shown, to the satisfaction of the commissioner of the general land office, to include only vacant unoccupied lands of the United States, not settled upon or nsed for municipal purposes, nor devoted to any public use of such town, said entries, if regular in all respects, are hereby confirmed and may be carried into patent.” The act was intended to apply to and remedy a state of facts that existed in many Western towns, where the corporate limits included large tracts of public land, unoccupied and unimproved, and not .used for business or municipal purposes.

It was evidently the purpose of the act to establish a limitation upon such reservations for town sites on the public domain, and to open to settlement under the public land laws the unoccupied lands that were not used or required for municipal purposes. It is stipulated in the present case that at the time when Frederick A.

Minnick filed his declaratory statement the land in controversy was public land of the United States, and was not settled upon or used for any municipal purpose, or devoted to auy public use of any town or city, and was not actually settled upon or occupied for the purpose of trade or business, and that there was no map or plat in the office of the register and receiver showing the corporate limits of the city of Seattle, and the said limits did not appear at that time upon any of the official township plats prepared by the surveyor general of the territory, and on lile in the office of the register and receiver.

There can be no doubt that the entry made by Minnick was one which had been theretofore “allowed,” as that term is used in

section 2 of the statute. At the time when the statute was enacted Minnick’s entry had been made, liis proofs of settlement and improvement had been presented to the satisfaction of the register and receiver, and he had paid the statutory pre-emption price for the land, which fact had been evidenced by tbe issuance of the receiver’s receipt and patent certificate.

Evidently it was to such a state of facts that congress intended to apply the words “where entries, have been heretofore allowed.” But it is contended that Minnick’s entry is excluded from the operation of the act of 1877 for the reason that it cannot be said to be an entry which, in the language of the statute, was “afterwards ascertained” to have been embraced within the corporate limits oí the town.

It is said that the record of proceedings in the land office shows that, at the time of making his entry and presenting his proofs, Minnick was aware that the land was within the corporate limits of the city of Seattle, and that he knew it to be land which by law was withheld from pre-emption or homestead entry. It is true that the secretary of the interior ruled in accordance with this contention.

His conclusion that Minnick knew the land in controversy to be within the corporate limits of the town was based not upon any direct proof to that effect, but was deduced by a course of reasoning from the fact that Minnick was the marshal of the town and had voted at a city election in 1874.

We discover nothing in the language of the act, or in the purpose intended thereby to be accomplished, or the circumstances under which it was enacted, to indicate that the relief which was thereby proposed to be afforded was intended to be limited to settlers who had made pre-emption or homestead entries in ignorance of the fact that the lands covered by their entries were within corporate limits. The statute was evidently intended for the guidance of the officers of the land department. It contained directions for their action in a case such as that which is here presented.

That public lands should lie within the limits of an incorporated town unoccupied by the city for municipal purposes, impossible of entry under the town-site act, and at the same time excluded from entry under the public land laws by individual settlers, was evidently regarded as undesirable. We discover nothing in the record, however, which impugns the good faith of Minnick’s entry.

A man who was marshal of a town for one year, and who voted at a city election, might still be ignorant of the corporate limits of a city which included within its boundaries unimproved, unoccupied agricultural or timber lands, or he might have, believed, as it appears that others believed, that the act of incorporation of 1809 was invalid, or he might have been ignorant of the law which excluded from entry lands within the boundaries of an incorporated town. Such a settler as Minnick, by pursuing the remedies afforded by,

section 3 of the act, and requiring the commissioner of the general land office to follow the course therein prescribed, might undoubtedly thereafter have made a valid entry under the pre-emption law upon the land in question. In such a case his knowledge or want of knowledge that the land was within the corporate limits of the town could have no relation to his right to make such entry. Congress evidently did not intend to discriminate between the rights of entrymen whose entries had been theretofore allowed and those who might afterwards make entry under the provision of

section 3. The entry which Minnick made was allowed in the office of the register and receiver, manifestly, for want of information in that office concerning the corporate limits of the city. His proofs of settlement and improvements and his purchase money were received in like ignorance on that subject. It w.as not until afterwards that it was “ascertained” in that office that the land was within the corporate limits. It was an entry which, so far as the record shows, was regular in all respects. By

section 2 of the statute it was confirmed and was authorized to be carried into patent. Alger v. Hill, 2 Wash. St. 344, 27 Pac. 922: Id., 6 Wash. 358, 33 Pac. 872. Entertaining tills view of the rights which Minnick acquired under Hie statute, we find it unnecessary to consider Hie other question which is presented on the appeal. The decree of the circuit court, is affirmed.