and assigned his possessory rights and improvements to L. M. Rhodes, and thereafter, Rhodes having failed to make payment therefor, the property was assigned to the plaintiff Powers, who settled thereon in 1881 with the expectation and intention of purchasing the lands or a portion thereof from the railroad company. Soon after such settlement Powers offered to purchase lots 2, 7, 10, and 15 from the company, and at the same time John G. Powers, a brother of the plaintiff, offered to purchase lots 3, 6, 11, and 14 from the company. Thereafter, as above stated, the plaintiff William L. Powers purchased the lands from the railroad company, having prior thereto taken a relinquishment from his brother of all interest in and to lots 2, 7, 10, and 15. was transmitted with your letter of July 10th, 1889, on appeal by Jacob Slaght and said railroad company from your decision in favor of William L. Powers, intervener. The land is within the limits of the withdrawal upon the line of the amended general route of said road, the map showing which was filed February 21st, 1872, and upon the definite location of the road it fell within the indemnity limits, the order for the withdrawal of which was received at the local office November 30th, 1880. These withdrawals have been held by the Department to be without authority of law and of no effect. 17 Land Dec. 8, and 19 Land Dec. 87. On December 17th, 1883, the company selected the land in question under act of July 2d, 1864 (13 Stat. at L. 365, chap. 217), per list No. On or about March 1st, 1883, the defend-1, and on the same day said company selected ant Slaght rented and leased lot 10 of the plaintiff Powers, and received and took possession of the same. He paid rental therefor, as agreed, from the date upon which he took possession of the premises until the 31st day of October, 1887. On the last-named day Slaght presented an application at the United States district land office for the district in which the land was situated, to enter lots 10, 11, 14, and 15 as public lands of the United States, under the act of Congress approved May 20th, 1862 (12 Stat. at L. 392, chap. 75), entitled "An Act to Secure Homesteads to Actual Settlers on the Public Domain," alleging in his application that he had settled and established his actual residence upon those lands March 4th, 1883, that such residence had been thereafter continuous, and that he had built a house on the land and improved the same. In the complaint in this case the plaintiffs averred that the settlement, occupation, and improvement by Slaght were under and in pursuance of the renting and leasing of and from Powers, as above set forth, and not otherwise. The Northern Pacific Railroad Company, having been notified of the application of Slaght to enter the land, filed its objections against the allowance thereof on or about December 2d, 1887. A hearing was ordered by the United States district land officers for the district in which the land was situate, to determine the rights thereto of the railroad [176]company and *Slaght, and such proceedings were had in the contest that the district land officers, in July, 1889, held the land to be excepted from the operation of the selection of the railroad company by reason of the settlement of the plaintiff Powers, and that the defendant Slaght had settled upon the land as the tenant of Powers. The railroad company appealed from the decision of the district land officers to the Commissioner of the General Land Office. On April 13th, 1895, the Commissioner rendered the following decision, directed to the register and receiver of the district land of fice at Walla Walla: "I have considered the contest of Jacob Slaght v. Northern Pacific Railroad Company and William L. Powers, Intervener, involving lots 10, 11, 14, 15, sec. 1, T. 16 N., R. 45 east, the record in which On the land under acts of July 2d, 1864 (13 Stat. at L. 365, chap. 217), and May 31st, 1870 (16 Stat. at L. 378), for indemnity purposes per amendatory list No. 2. October 31st, 1887, Jacob Slaght presented an application to make homestead entry for this land, and alleged that he settled and established his actual residence thereon March 4th, 1883, and the same has been continuous; that he built a house 12x14 feet, a kitchen 10x12 feet, a stable, dug a cellar, and broke a garden spot, and built a half mile of fence, and that his improvements are worth about $275. The company was duly notified of said application and filed its objections against the acceptance of the same December 2d, 1887. Upon the issuance of notice to the parties in interest, a hearing in the[177] case was had and concluded April 4th, 1889, at which all parties were represented. The testimony adduced at the hearing on behalf of Slaght shows that he established his actual residence on the land in March, 1883; that he broke and planted a garden; that within a few days after moving in the log house on the land he built an addition thereto; that in September, 1883, he built a house 12x14 feet, a kitchen, a stable, a chicken house, dug a cellar, and fenced about 80 acres; that his residence on the above-described tracts of land has been continuous since March 1st, 1883, and that his improve. ments are worth $400, and that he is a qualified settler." After stating the substance of the evidence. adduced, the Commissioner proceeded : "Therefore, in view of this showing, your decision in favor of William L. Powers is hereby reversed; likewise your decision adverse to Jacob Slaght. Your opinion that said company's selection as to this land was improperly allowed, and that the company had no right to the land prior to its selection, and as the same was occupied and improved as the home of a settler, Slaght's, at the date of selection, that such selection as to the land in question should be canceled, was in accordance with the uniform practice of the Department, and I concur therein. Accordingly, said amendatory list No. 2 of selections of December 17th, 1883, by said company is hereby held for cancelation as to said lots 10, 11, 14, and 15, sec. 1, twp. 16 N., R. 45 E. The usual time, sixty days after notice, will be allowed the railroad company and William L. Powers within which to appeal to the honorable Secretary of the Interior. Should this decision become final, Slaght will be permitted to make homestead entry for this land. You will advise him of this action." From the decision of the Commissioner the Northern Pacific Railroad Company appealed to the Secretary of the Interior, who, in 1896, affirmed the action of the Commissioner. In 1897 Slaght received from the Interior Department letters patent of the United States conveying to him lots 10, 11, 14, and 15. The plaintiffs averred that the letters patent were issued to Slaght under a misconstruc. [178]tion and misinterpretation of the *law; that long prior to the settlement upon the land by Slaght the lands and each and all of them had been reserved for the use and benefit of the railroad company; that the plaintiff Powers had settled upon the lands with the intention of purchasing them from the company; that the lands were subject to selection by the company, and by its selection thereof it acquired the title in and to the same; that at the time Slaght applied to enter the land, and at the date of the hearings in the contest above referred to, and at the date of the issuing of the letters patent to him, the land was not, nor was it at any of those times, public land subject to settlement or entry under the land laws of the United States other than the act of Congress approved July 2d, 1864, above referred to, granting lands to the railroad company; and that the officers of the Interior Department were without authority to issue letters patent purporting to convey the land to Slaght, because the United States had, long prior to the issuing of those letters, parted with the title to the railroad company. would also without suit forcibly enter the[179] The plaintiff therefore prayed, among other things, that the letters patent issued to Slaght be declared to have been issued under a misconstruction of the law and to be void and to constitute clouds upon the titles of the plaintiffs and of the various persons to whom the plaintiff Powers had conveyed any portion of the land in dispute; that Slaght be decreed to be a trustee holding such right, title, and interest in and to those lands as he acquired under and by virtue of such letters patent, if any, for the benefit of the plaintiff Powers and his grantees, both direct and through mesne conveyances, and that Slaght be required to convey such right, title, and interest, if any, to the plaintiff Powers and his grantees. The plaintiffs also prayed for such other and further relief as was equitable and just. A demurrer to the amended complaint was sustained, and the plaintiffs electing not to plead further, the action was dismissed. The judgment of dismissal was affirmed by the supreme court of the state of Washington upon the authority of the decision of that court in Moore v. Cormode, 20 Wash. 305, 713, 55 Pac. 217, 1103, just decided upon appeal to this court. Messrs. C. W. Bunn and James B. Kerr argued the cause and filed a brief for plaintiffs in error. For contentions of these counsel, see their brief as reported in Hewitt v. Schultz, ante, 463. Mr. U. L. Ettinger submitted the cause for defendant in error. Messrs. Charles M. Wyman and Thomas Neill were with him on the brief: The complaint stated that the other of the above-named plaintiffs in this cause asserted and claimed title to certain portions of the lands in dispute under and by virtue of conveyances from Powers and his grantees. The lands embraced within the terms of It was also averred that the plaintiff Pow-section 6 of the grant are withdrawn by ers had conveyed to various parties, with force of the statute. The lands in controwarranty to defend the title thereof, certain versy were not within the 40-mile strip, and other portions of the land; that the ques- were not, therefore, withdrawn by the terms tions involved and to be determined in this of the statute. action were of common and general interest to many persons, who were so numerous that it was impracticable to bring them into court; that the plaintiffs and such other persons were the owners in fee simple, and had an indefeasible title, and were in possession of the lots named, and the defendant claimed an interest or estate therein adverse to the plaintiffs, but that defendant had no estate, right, title, or interest whatever in the same or to any part thereof; that the defendant was threatening to commence divers suits in ejectment, and without suit forcibly to dispossess and eject plaintiffs and the other numerous parties of and from the premises or a portion thereof, and unless restrained by an order of court would bring such suits, and United States v. Oregon & C. R. Co. 176 U. S. 28, 44 L. ed. 358, 20 Sup. Ct. Rep. 26; United States v. Missouri, K. & T. R. Co. 141 U. S. 358, 35 L. ed. 766, 12 Sup. Ct. Rep. 13; Kansas P. R. Co. v. Atchison, T. & S. F. R. Co. 112 U. S. 414, 28 L. ed. 794, 5 Sup. Ct. Rep. 208; Wisconsin C. R. Co. v. Price County, 133 U. S. 496, 33 L. ed. 687, 10 Sup. Ct. Rep. 341; Buttz v. Northern P. R. Co. 119 U. S. 55, 30 L. ed. 330, 7 Sup. Ct. Rep. 100: St. Paul & P. R. Co. v. Northern P. R. Co. 139 U. S. 1, 35 L. ed. 77, 11 Sup. Ct. Rep. 389; United States v. Southern P. R. Co. 146 U. S. 570, 36 L. ed. 1091, 13 Sup. Ct. Rep. 152; Northern P. R. Co. v. MusserSauntry Land, Logging, & Mfg. Co. 168 U. S. 004, 42 L. ed. 596, 18 Sup. Ct. Rep. 205; Burfenning v. Chicago, St. P. M. & O. R. Co. | Land, Logging, & Mfg. Co. 168 U. S. 605, 42 163 U. S. 321, 41 L. ed. 175, 16 Sup. Ct. Rep. L. ed. 597, 18 Sup. Ct. Rep. 205; Northern 1018; Northern P. R. Co. v. Miller, 7 Land P. R. Co. v. De Lacey, 174 U. S. 622, 43 L. ed. Dec. 104; United States v. Oregon & C. R. Co. 1111, 19 Sup. Ct. Rep. 791; Atlantic & P. R. 176 U. S. 51, 44 L. ed. 368, 20 Sup. Ct. Rep. Co. 8 Land Dec. 373; Northern P. R. Co. v. 269; United States v. Moore, 95 U. S. 760, Miller, 11 Land Dec. 1, 428; Southern Min24 L. ed. 588; Atlantic & P. R. Co. 6 Land nesota R. Extension Co. 12 Land Dec. 518; Dec. 77; Cole v. Northern P. R. Co. 17 Land Floridu C. & P. R. Co. 15 Land Dec. 529; Dec. 8; Florida C. & P. R. Co. 15 Land Dec. Wood v. Burlington & M. River R. Co. 104 529; Missouri, K. & T. R. Co. v. Troxel, 17 U. S. 329, 26 L. ed. 772; Willey v. Northern Land Dec. 122; Northern P. R. Co. v. Lille-P. R. Co. 22 Land Dec. 606; La Bar v. Norththun, 21 Land Dec. 487; Northern P. R. Co. v. Davis, 19 Land Dec. 87; Southern P. R. Co. v. Kanawyer, 23 Land Dec. 500; Grunewald v. Northern P. R. Co. 24 Land Dec. 195; Northern P. R. Co. v. St. Paul, M. & M. R. Co. 25 Land Dec. 67; Northern P. R. Co. v. Streid, 26 Land Dec. 589; Stuart v. Southern P. R. Co. 22 Land Dec. 61; Elling v. Thexton, 7 Mont. 330, 16 Pac. 931; Grandin v. La Bar, 3 N. D. 446, 57 N. W. 243; Moore v. Cormode, 20 Wash. 305, 55 Pac. 217; Van Wyck v. Knevals, 106 U. S. 366, 27 L. ed. 201, 1 Sup. Ct. Rep. 336. The order of the department directing the withdrawal of lands beyond the 40-mile strip conveyed no interest in the lands to the coinpany and was revocable. R. Co. v. Lynch, 22 Land Dec. 609; Southern v. Winona & St. P. R. Co. 112 U. S. 720, 28 Atlantic & P. R. Co. 6 Land Dec. 77-93; Wood v. Bcach, 156 U. S. 548, 39 L. ed. 528, 15 Sup. Ct. Rep. 410; Riley v. Welles, 154 U. S. 578, and 19 L. ed. 648, 14 Sup. Ct. Rep. 1166; Wolcott v. Des Moines Nav. & R. Co. 5 Wall. 681, 18 L. ed. 689; Burfenning v. Chicago, St. P. M. & O. R. Co. 163 U. S. 321, 41 L. ed. 175, 16 Sup. Ct. Rep. 1018; Wolsey v. Chapman, 101 U. S. 755, 25 L. ed. 915; Northern P. R. Co. 2 Land Dec. 516; Southern P. R. Co. 18 Land Dec. 315; Southern P. R. Co. v. McWharter, 14 Land Dec. 612; Southern P. R. Co. v. Meyer, 9 Land Dec. The issue as to the validity of the order 250; Northern P. R. Co. v. Miller, 7 Land of withdrawal made by direction of the SecDec. 100; United States v. Moore, 95 U. S. retary of the Interior of lands within the *in-[180] 760, 24 L. ed. 588; Knight v. United Landdemnity limits of the Northern Pacific RailAsso. 142 U. S. 161, 35 L. ed. 974, 12 Sup. Ct. Rep. 258; Catholic Bishop of Nesqually v. Gibbon, 158 U. S. 155, 39 L. ed. 931, 15 Sup. Ct. Rep. 779. The alleged selections preceding the entry were not approved by the Secretary of the Interior, and were insufficient to defeat the entry of the defendant in error. *Mr. Justice Harlan, after stating the [179] facts as above reported, delivered the opinion of the court: road Company, as indicated by the company's accepted map of definite location, presents the controlling question in this case. Unless such order be sustained as a valid exercise of power by that officer, there is no ground upon which a decree could be rendered against Slaght. For the reasons stated in Hewitt v. Lec v. Johnson, 116 U. S. 48, 29 L. ed. 570, Schultz, 180 U. S. 139, ante, 463, 21 Sup. Ct. 6 Sup. Ct. Rep. 249; Johnson v. Towsley, 13 Rep. 309, just decided, we hold, in conformity Wall. 72, 20 L. ed. 485; Shepley v. Cowan, with the long-established practice in the Land 91 U. S. 330, 23 L. ed. 424; Moore v. Robbins, Department, that that order of withdrawal 96 U. S. 530, 24 L. ed. 848; Marquez v. Fris- must be regarded as inconsistent with the bic, 101 U. S. 473, 25 L. ed. 800; Vance v. true construction of the act of Congress of Burbank, 101 U. S. 514, 25 L. ed. 929; San-July 2d, 1864. The judgment of the Suferd v. Sanford, 139 U. S. 642, 35 L. ed. 290, preme Court of Washington is, accordingly, 11 Sup. Ct. Rep. 666; Northern P. R. Co. v. affirmed. Colburn, 164 U. S. 383, 41 L. ed. 479, 17 Sup. Ct. Rep. 98; Northern P. R. Co. v. Miller, 7 Land Dec. 123; Northern P. R. Co. 25 Land Dec. 512; Northern P. R. Co. v. Sanders, 166 U. S. 620, 41 L. ed. 1139, 17 Sup. Ct. Rep. Mr. Justice Brewer and Mr. Justice 671; Northern P. R. Co. v. Musser-Sauntry Shiras dissented. Mr. Justice White concurred in the result. J. M. MOORE, Plff. in Err., v. hearing in the matter was ordered to determine the condition of the land at the date of D. B. STONE, Ammvillis Allen, Alma May its selection, and the respective rights of the Stone, et al. (See S. C. Reporter's ed. 180-185.) defendant and the railroad company. At the hearing the officers of the district land office, in January, 1891, held that the settlement of the defendant and the application Railroad land grants-withdrawal of indem- to file the pre-emption declaratory statement nity lands. The Secretary of the Interior is not authorized by the act of July 2, 1864, to withdraw from sale or entry under the pre-emption and homestead laws of the United States the oddnumbered sections of land within the indemnity limits of the Northern Pacific Rail road Company as defined by its map of defi. nite location, in advance of any selection based on ascertained losses of distinct tracts In the place limits. [No. 48.] excepted the lands from the grant to the railroad company, and that therefore they were not subject to selection by it; and the selection made was recommended to be canceled. "The land is with Argued October 15, 16, 1900. Decided Jan- within the indemnity limits, the order for uary 7, 1901. I Washington ERROR to the Supreme Court of the affirming a judgment dismissing an action to establish a trust in lands held under patent from the United States. Affirmed. See same case below, 20 Wash. 713, 55 Pac. 1103. Statement by Mr. Justice Harlan: [180] On the 12th day of December, 1883, the Northern Pacific Railroad Company selected the northeast quarter of section 3, in township 13, north of range 42 east, Willamette meridian, in Garfield county, Washington, under the direction of the Secretary of the Interior, as indemnity in lieu of other lands. In making the selection it filed in the district land office at Walla Walla a list showing the tract selected, at the same time tendering to the officers of the district land office the fees required by law. The tract was selected as public land to which the United States had full title, not reserved, sold, [181 granted, or otherwise appropriated, and free from pre-emption or other claim or rights. The list was accepted, allowed, and approved by the officers named on January 5th, 1884, and transmitted to the Commissioner of the General Land Office. On October 26th, 1887, in compliance with and in pursuance of certain orders and directions subsequently made by the Secretary of the Interior, the railroad company designated the losses for which the above-described lands were selected as indemnity. The railroad company appealed to the Commissioner of the General Land Office. In a decision rendered April 30th, 1895, and directed to the register and receiver at Walla Walla, that officer said: in the limits of withdrawal upon the line of amended general route of said road, the map showing which was filed Feb. 21st, 1872, and upon the definite location of the road it fell withdrawal of which was received at the local office Nov. 30th, 1880. These withdrawals have been held by the Department to be 17 Land Dec. 8, and 19 Land Dec. 87. The testimony adduced at the hearing shows that Stone is a qualified settler, and established his actual residence with his family on the land about the middle of April, 1882, in a cabin he built upon the tract; that in the summer of 1882 he built a house 16 x 24 feet, one and a half *stories high, dug a well, [182] and cultivated a garden; that in 1883 he cropped 15 acres to grain, in 1884 and 1885, 15 acres, and in 1886 and 1887, 40 acres, in 1888, 45 acres, in 1889, 140 acres, and in 1890, 15 acres; that he has fenced the whole place, and that his improvements are worth from $700 to $800. You are of the opinion that Co.'s selection as to this land was improperly allowed, and that the Co. had no right to the tract prior to its selection, and that as the land was occupied and improved as the home of a qualified settler at the date of such selection, that such selection as to the land in question should be canceled, and Stone's application to make pre-emption should be overruled; your ruling is in accordance with the uniform practice of the Department, and I concur in same. fore your decision is sustained, and the amendatory list No. 1 of selection of Jan. 5th, 1884, by said Co. is hereby held for cancelation as to the above-described tract of land." There On July 2d, 1895, the railroad company, by general warranty deed and for a valuable On the 30th day of June, 1884, the defend- consideration, sold and conveyed the north ant, Dimon B. Stone, presented an applica- half of section 3, in the above-named towntion to make a pre-emption declaratory state-ship, to the plaintiff Moore. ment for the lands selected as above stated On May 20th, 1896, the Secretary of the by the railroad company, to the district land Interior sustained the above decision of the office at Walla Walla, alleging settlement Commissioner of the General Land Office. upon the land April 25th, 1882. His application was rejected, and on appeal to the Commissioner of the General Land Office a NOTE-On land grants to railroads see note to Kansas P. R. Co. v. Atchison, T. & 8. F. R. Co. 28 L. ed. U. 8. 794. The amended complaint of the plaintiff Moore, after setting out the foregoing facts, alleged that the above decisions by the officers of the Land Department and the Secretary of the Interior were made and rendered under a misapprehension and mistake of law and were contrary to law; that under the rules and practice of the Department of the Interior the decision of the Secretary finally closed and determined in that Department the controversy as to the tract of land, of which fact the parties received notice, the contest being closed July 10th, 1896; that thereafter the defendant made final proof and received a final receipt for the land, in which it was recited that he was entitled to a patent for the land from the United States; and that in 1897 a patent was issued to him. The plaintiff averred that the United States district land officers, the Commissioner of the General Land Office, and the Secre[183]tary of the Interior were wholly without jurisdiction to consider the application of the defendant Stone to make pre-emption entry of the land, for the reason that it was not public land of the United States subject to homestead entry, but at the time of the defendant's application had been withdrawn by order of the Secretary of the Interior from entry or sale under the settlement laws of the United States; that the railroad company was the owner in fee-simple of the premises and entitled to the legal title thereto and to a patent from the United States; that the patent issued to the defendant, or which, if not issued, would be issued to him, constituted the defendant a trustee holding the legal title for the benefit of the plaintiff, and cast a cloud upon his title. | and debarred from asserting any claim what [184] ever in or to the lands or any part thereof adverse to the plaintiff; that plaintiff have judgment quieting his title against defendants and each of them, and removing the cloud thereon created by the pretended claim or claims of defendants or either of them; that plaintiff be adjudged entitled to immediate and exclusive possession of the premises and the whole and every part thereof and be put into possession thereof by order of the court; and that plaintiff have such other or further relief as should seem meet, proper, and agreeable to equity. The amended complaint was demurred to. and the demurrer was sustained; and the plaintiff declining to plead further, the action was dismissed. The judgment of dismissal was affirmed in the supreme court of the state, on the authority of Moore v. Cormode, 20 Wash. 305, 713, 55 Pac. 217, 1103. Messrs. C. W. Bunn and James B. Herr argued the cause and filed a brief for plaintiff in error. For contentions of these counsel, see their brief as reported in Hewitt v. Schultz, ante, 463. Mr. George H. Patrick argued the cause and, with Mr. George Turner, filed a brief for defendants in error. For contentions of these counsel, see their brief as reported in Moore v. Cormode, ante, 476. Messrs. J. H. McGowan, George Turner, and George H. Patrick filed an additional brief for defendants in error. Mr. Justice Harlan, after stating the facts as above reported, delivered the opin It was set out in the complaint that in 1898 the wife of the defendant Stone died intestate, "leaving as her heirs the defendants herein, who, excepting defendant D. B. Stone, are her children and the only children surviving her, and the only children which she has or ever had; that the premises and prop-ion of the court: erty herein described, if any right or interest was ever acquired by defendant D. B. Stone, was acquired after his marriage with the said deceased; that some of said children of said deceased are of age and some are minors; that the names of those who are minors are Sylvia S. Jenks, Orson Emer Stone, Harland Clifford Stone, and Orlie Otis Stone; that the said Ammvillis Allen and Sylvia S. Jenks are married; that said children and defendants other than D. B. Stone have no other rights except as heirs of the said deceased." The plaintiff therefore prayed that the defendants be declared trustees for the use and benefit of plaintiff; that by decree it be adjudged that defendants or either of them have no right, title, interest, or estate whatever in and to these lands and premises or any part thereof; that the title of plaintiff be decreed good, valid, and a fee-simple title; and that defendants be required to execute and deliver to plaintiff deed or deeds so as to vest in plaintiff a complete record title in and to the premises; that any and all pretended claims of defendants or either of them be held for naught and canceled; that the defendants and each of them be enjoined As in the other cases just decided, the plaintiff's right to recover depended upon the validity of the order made by the Secretary of the Interior directing the withdrawal from sale or entry under the pre-emption and homestead laws of the United States of the odd-numbered sections of land within the indemnity limits of the Northern Pacific Railroad Company as defined by its map of definite location. The order was based wholly upon the filing and acceptance of that map, and in advance of any selection based on ascertained losses of distinct tracts in the place limits. For the reasons stated in Hewitt v. Schultz, 180 U. S. 139, ante, 463, 21 Sup. Ct. Rep. 309, such order must be regarded as not authorized by the act of July 2d, 1864, under which the railroad company and its grantee claimed title; and upon that ground the [185] judgment of the Supreme Court of the State of Washington must be and is affirmed. Mr. Justice White concurred in the result. Mr. Justice Brewer and Mr. Justice Shiras dissented. |