Thornton, J., dissenting: I cannot concur with my associates in their judgment in this case. Since reading the opinion of the Court, I have re-exam-[279]hied the case fully, and that re-examination satisfies me that the conclusion reached in the former opinion is correct, and that my associates have fallen into errors which will result in great injury to the rights of litigants, and that the conclusions reached by them are contrary, to all the decisions of Courts in such cases, so far as any have been cited to us, or that I have been able to find.
The rule upon which one of the points was decided in the former opinion is this: That when the officers of the United States land department decide controverted questions of fact, in the absence of fraud, or imposition, or mistalce, their decisions on such questions are final, except as they may be reversed on appeal in that department; but that where, on the application of the facts as found by such officers, they, by misconstruction of the law, take from a party that to which he has acquired a legal right under the sanction of the law, a court of equity can give relief.
This rule is taken almost verbatim from the opinion of the Court by Miller, J., in Johnson v. Towsley, 13 Wall. 86. This case was a re-examination of the former cases on the subj set. It is so stated by the able jurist who drew up the opinion in the case cited.
It is thus stated: “ The contest arises out of rival claims to the right of pre-emption of the land in controversy. The register and receiver, after hearing these claims, decided in favor of Towsley, the complainant, and allowed him to enter the land, received his money, and gave him a patent certificate. On appeal to the commissioner of the land office, their action ivas affirmed, but on a further appeal to the Secretary of the Interior, the action of these officers was reversed, on a construction of an Act of Congress in which the Secretary differed from them, and under that decision the patent was issued to Johnson.
“It will be seen by this short statement of the case, that the rights asserted by complainant, and recognized and established by the Nebraska Courts, were the same which were passed upon by the register and receiver, by the commissioner, and by the Secretary of the Interior; and we are met at the threshold of this investigation with the proposition that the action of the latter officer, terminating in the delivery to the defendant of a [280]patent for the land, is conclusive of the rights of the parties, not only in the land department, but in the Courts, and everywhere else.
“ This proposition is not a new one in this Court in this class of cases, hut it is maintained, that none of the cases heretofore decided extend, in principle, to the one before us; and the question being pressed upon our attention with an earnestness and fullness of argument which it has not perhaps before received, and with reference to statutes not heretofore considered by the Court, we deem the occasion an appropriate one to re-examine the whole subject.” (13 Wall. 81.)
Two points were then discussed. The first is based on the Acts of Congress in relation to proceedings in the land department ; the second, on the general doctrine, “ that when the law has confided to a special tribunal the authority to hear and determine certain matters arising in the course of its duties, the decision of that tribunal, within the scope of its authority, is conclusive upon all others.”
The point first mentioned above was, that, by virtue of the provisions of the 10th section of the Act of June 12th, 1858 (11 Stats, at Large, 326), amending the 11th section of the general pre-emption law of 1841, the decision of the commissioner of the general land office, on appeals in cases of contest between different settlers for the right of pre-emption, shall be final, unless an appeal he taken therefrom to the Secretary of the Interior. After examining the various Acts of Congress bearing thereon, the conclusion reached is thus stated: “ In the use of the word “ final,” we think nothing more was intended than to say that, with the single exception of an appeal to his superior, the Secretary of the Interior, his decision should exclude further inquiry in that department. But we do not see, in the language used in this connection, any intention to give to the final decision of the Department of the Interior, to which the control of the land system of the Government had been transferred, any more conclusive effect than what belonged to it without its aid.” (13 Wall. 83.)
After stating that the Court finds no support to the proposition of the counsel for the plaintiff in error in the special prolusions of the statute relied on (which has been just above [281]stated), the Court proceeds to discuss the second proposition, and concludes that the argument is much stronger when based on the general doctrine expressed in it. Admitting, under the principle above set forth, that the action of the land office in issuing a patent for any of the public land, subject to sale by pre-emption or otherwise, is conclusive of the legal title, and in all Courts and in all forms of judicial proceedings, where the legal title must control, either by reason of the limited powers of the Court, or the essential character of the proceeding, no inquiry can be permitted into the circumstances under which it was obtained, the learned jurist proceeds thus i
66 On the other hand, there has always existed in the courts of equity the power in certain classes of cases to inquire into and correct mistakes, injustice, and wrong in both judicial and executive action, however solemn the form which the result of that action may assume, when it invades private rights ; and by virtue of this power the final judgments of courts of law have been annulled or modified, and patents and other important instruments issuing from the crown, or other executive branch of the Government, have been corrected or declared void, or other relief granted. Ho reason is perceived why the action of the land office should constitute an exception to this principle.” (13 Wall. 84.)
The opinion then proceeds to show particularly why such rules should apply to the United States land department, in these words:
“ In dealing with the public domain under the system of laws enacted by Congress for their management and sale, that tribunal decides upon private rights of great value, and very often, from the nature of its functions, this is by a proceeding essentially ex parte, and peculiarly liable to the influence of frauds, false swearing, and mistakes. These are among the most ancient and well-established grounds of the special jurisdiction of courts of equity just referred to, and the necessity and value of that jurisdiction are nowhere better exemplified than in its application to cases arising in the land office. It is very well known that these officers do not confine themselves to determining, before a patent issues, who is entitled to receive it; but they frequently assume the right, long after a patent has issued and the legal [282]title passed out of the United States, to recall or set aside the patent, and issue one to some other party, and if the holder of the first patent refuses to surrender it, they issue a second. In such a case as this, have the Courts no jurisdiction? If they have not, who shall decide the conflicting claims to.the land? If the land officers can do this a few weeks or a few months after the first patent has issued, what limit is there to their power over private rights? Sucli is the case of Stark v. Starrs, 6 Wall, 402, in which the patent was issued to one party one day, and to the other the day after, for the same land. They are also in the habit of issuing patents to different parties for the same land, containing in each instrument thus issued a reservation of the rights of the other party. How are those rights to be determined, except by a court of equity ? Which patent shall prevail, and what conclusiveness, or inflexible finality, can be attached to a tribunal whose acts are in their nature so inconclusive? So, also, the register and receiver, to whom the law primarily confides these duties, often hears the application of a party to enter land as a pre-emptor or otherwise, decides in favor of his right, receives his money, and gives him a certificate that he is entitled to a patent. Undoubtedly this constitutes a vested right, and it can only be divested according to law. In every such case, where the land office afterwards sets aside this certificate, and grants the land just sold to another person, it is of the very essence of judicial authority’ to inquire whether this has been done in violation of law, and if it has, to give appropriate remedy.” (13 Wall, 85.) And then proceeds to state the general rule as follows: “ And so, if for any other reason recognized by courts of 'equity, as a ground of interference in such cases, the legal title has passed from the United States to one party, when, in equity and good conscience, and by the laws which Congress has made on the subject, it ought to go to another, ‘ a court of equity will,’ in the language of this Court in the case of Stark v. Starrs, just cited, 1 convert him into a trustee of the true owner, and compel him to convey the legal title.’ In numerous cases, this has been announced to be the settled doctrine of this Court in reference to the action of the land office. (Lytle v. Arkansas, 22 How. 192; Garland v. Wynn, 20 id. 8; Lindsey v. Hawes, 2 Black, 559.)” (13 Wall, 85.)
[283]After stating with a reference to cases that the same doctrine had been applied in Kentucky, Virginia, and Pennsylvania, which States had a system of laud sales, and that several of the Kentucky cases cited had come to the United States Supreme Court, where the principle had been uniformly upheld, the learned Judge remarks, that “it is said that the present case does not come within any of the adjudicated cases on the subject ; that in all of them there has been some element of fraud or mistake, on which the cases rested.” (13 Wall. 86.)
We think it proper to say here, that this point was urged and this concession made by a learned lawyer and jurist, Judge Lyman Trumbull of Illinois. It is hardly to be supposed that so eminent a lawyer as Judge Trumbull would have made such concession unless it was in conformity with the acknowledged adjudications of the Courts, or it was manifest on principle.
The opinion then proceeds in relation to the point thus stated, and the concession of the advocate, and states the rule we have referred to:
“ Undoubtedly there has been in all of them some special ground for the exercise of the equitable jurisdiction ; for this Court does not, and never has, asserted that all the matters passed upon by the land office are open to review in the Courts. On the contrary, it is fully conceded, that, when those officers decide controverted questions of fact, in the absence of fraud or impositions or mistake, their decision on those questions is final, except as they may be reversed on appeal in that department. But we are not prepared to concede, that when, in the application of the facts as found by them, they, by misconstruction of the law, take from a party that to which he has acquired a legal right under the sanction of those laws, the Courts are without power to give any relief. (13 Wall. 86.)
It' will thus be seen that the learned counsel for the plaintiff in error, and the able and distinguished Court, speaking through Mr. Justice Miller, concede the point as correct, laid down in the opinion of Department Two, in regard to fraud or imposition or mistake in relation to controverted questions of fact, and cites two of the cases referred to in that opinion, and adds another, from 2nd Black. The case of Johnson v. Toiosley turned upon a question of law held to be improperly decided by the Secretary of the [284]Interior in awarding the land to J ohnson, reversing the decisions of the register and receiver and the commissioner of the general land office. It is stated in the opinion, that this very point had been decided (that the Courts would correct mistakes of law by the officers of the land department) in Minnesota v. Bachelder, 1 Wall. 109, and Silver v. Ladd, 7 id. 219; and states the facts in Silver v. Ladd, and the decision of the Court, and then proceeds, as to the respective functions of the officers of the land department and the Courts, as follows:
“ This Court has at all times been careful to guard itself against an invasion of the functions confided by law to other departments of the Government ; and in reference to the proceedings before the officers intrusted with the charge of selling the public land, it has frequently and firmly refused to interfere with them in the discharge of their duties, either by mandamus or injunction, so long as the title remained in the United States, and the matter was rightfully before those officers for decision. On the other hand, it has constantly asserted the right of the proper Courts to inquire, after the title has passed from the Government, and the question became one of private right, whether, according to the established rules of equity and the Acts of Congress concerning the public lands, the party holding that title should hold absolutely as his own, or as trustee for another. And we are satisfied that the relations thus established between the Courts and- the land department are not only founded on a just view of the duties and powers of each, but are essential to the ends of justice, and to a sound administration of the law.” (13 Wall. 87.)
The opinion then continues in a discussion of the particular facts of the case before the Court, and affirms the judgment of the Court below in favor of Towsley, the complainant, on the ground that an error or mistake in law had been committed by the Secretary of the Interior in deciding in favor of J ohnson. J ohnson was thus held a trustee for Towsley, and ordered to convey to him. Clifford, J., dissented, and put his dissent on the distinct ground that the decision of the land officers was final, “except in cases of fraud or mistake not known at the time of the investigation by the land department.” (13 Wall. 91.) Davis, J., took no part in the decision. [285]It will thus be seen, that all the judges but one participated in the decision, and all agreed that, in cases of fraud, the ordinary courts of justice competent to try such questions of fraud had jurisdiction. The only difference of opinion was as to decisions on questions of law.
I cannot see how it can be controverted that such fraud or imposition or mistake relates to matters of fact. If that is not the meaning of the opinion in Johnson v. Towsleg, then a greater part of the opinion is meaningless.
This rule was held to be in accord with the judgments of the Court in cases formerly decided. (13 Wall, 81, 85—on latter page citing three cases.) It has been since repeatedly adhered to by the same Court in the cases following: Samson v. Smiley, 13 Wall. 911 Warren v. Van Brunt, 19 id. 653; Shepley v. Cowan, 91 U. S. R. 330; Moore v. Robbins, 96 id. 530; Marquez v. Frisbie, 101 id. 473. In relation to this rule, Field, J., delivering opinion of the Court in one of the above-cited cases, says: “ If the matter were open for our consideration, we might perhaps doubt as to the sufficiency of the proofs presented by the heirs of Chartrand to the officers of the land department to establish a right of pre-emption by virtue of the settlement and proceedings of their ancestor. Those proofs were, however, considered sufficient by the register of the local land office, by the commissioner of the general land office on appeal from the register, and by the Secretary of the Interior on appeal from the commissioner. There is no evidence of any fraud or imposition practiced upon them, or that they erred in the construction of any law applicable to the case. It is only contended that they erred in their deductions from the proofs presented; and for errors of that kind, where the parties interested had notice of the proceedings before the land departmemt, and, were permitted to contest the same, as in the present case, the Courts can furnish no remedy. The officers of the land department are specially designated by law to receive, consider, and pass upon proofs presented with respect to settlements upon the public lands with a view to secure rights of pre-emption. If they err in the construction of the law applicable to any case, or if fraud is practiced upon them, or they themseloes are chargeable with fraudulent practices, their rulings may be reviewed and annulled by the [286]Courts when a controversy arises between private parties, founded upon their decisions; but, for mere errors of judgment upon the weight of evidence in a contested case before them, the only remedy is by appeal from one officer to another of the department, and perhaps, under special circumstances, to the President. It may also be, and probably is, true that .the courts may furnish, in proper cases, relief to a party where new evidence is discovered, which, if possessed and presented at the time, would have changed the action of the land officers; but, except in such cases, the ruling of the department on disputed questions of fact made in a contested case must be taken, when that ruling is collaterally assailed, as conclusive.” (91 U. S. R. 339-340.)
This was said in regard to the facts—“ the sufficiency of the proofs.” In Warren v. Van Brunt (opinion by Waite, C. J., whole court concurring), the rule is stated with regard to the facts: The record did not disclose the facts found by the officers. The Court, however, considered the facts as found by the Court. This was done, no doubt, to see whether there was any error of law by the Court, as the Court found there was no fraud or unfairness or misconduct. (19 Wall. 652, 653.) Moore v. Robbins came before the Court on a writ of error to the Supreme Court of Illinois. That Court held the decision of the land department conclusive on the Courts. Their judgment was reversed, and the rule is stated as appears above. It is expressly stated in laying down the rule, that, “ as to the facts on which their decision is based (referring to the decision of the land department) in the absence of fraud or mistalce, that decision is conclusive,” etc.—which is no doubt the same as saying that where there is fraud or mistalce as to the facts, their decision is not conclusive. It is further stated, that in such cases courts of equity have “ jurisdiction to correct mistalces, to relieve against frauds and impositions,” etc. (96 U. S. Rep. 535.) In Marquez v. Frisbie, the jurisdiction of the Court was admitted, but it was decided on the grounds that there was no sufficient allegation of mistake in law, or of fraud and imposition. The cause was tried in the Court below on a demurrer to the complaint, which was sustained, and the plaintiff declining to amend, judgment was rendered for defendant. [287]The cause came before the United States Supreme Court on a writ of error to the Supreme Court of this State, which Court had affirmed the judgment thus rendered on demurrer. The jurisdiction was invoked,' both on the ground of mistake in law and fraud and imposition as to the facts, and the jurisdiction of the Court was admitted, but held not to have erred in refusing to exercise it, on account of the defects in the averments in the complaint.
The cases before Johnson v. Towsley are numerous: Comegys v. Vasse, 1 Peters, 212; Lytle v. State of Arkansas, 9 How. 328; Cunningham v. Ashley, 14 id. 377; Barnard v. Ashley, 18 id. 44; Garland v. Wynn, 20 id. 6; Lytle v. Arkansas, 22 id. 192; Lindsey v. Hawes, 2 Black, 554; O’Brien v. Perry, 1 id. 139; Minnesota v. Bachelder, 1 Wall. 109; Stark v. Starrs, 6 id. 402; Silver v. Ladd, 7 id. 219. In the opinion of Miller, el., in Johnson v. Towsley, it is twice expressly or by implication stated, that the judgments in these cases are not departed from in the ruling in that. (13 Wall. 81-85.) ‘
We have cited above seventeen cases in all from the United States Supreme Court, with the rulings in which the opinion of the department in this case accords. It is unnecessary to refer to the opinions in the Circuit Courts which are in like accord.
Hosmer v. Wallace, 47 Cal. 461, states the rule as above, and cites Johnson v. Towsley. The rule is twice stated approvingly, in the opinion of the Court, on page 471, and again on page 473. The same rule was stated as law in Hess v. Bolinger, 48 Cal. 353, and in Burrell v. Haw, id. 225. In Rutledge v. Murphy, 51 Cal. 391, the Court was asked to review Hosmer v. Wallace, as unsupported by reason or authority, and in conflict with Warren v. Van Brunt, 19 Wall. 646. The Court did not do so, stating that the judgment must be affirmed on other grounds, saying: “ But we'arc not to be understood as admitting by implication the incorrectness of that decision, which was founded on the authority of Johnson v. Towsley.” (Rutledge v. Murphy, 51 Cal. 391.)
In Dilla v. Bohall, 53 Cal. 710, no question of fraud or imposition was involved, but a mere question of law. The same may be said of Powers v. Leith, 53 Cal. 712. The defendant’s [288]entry (No. 304) on which he succeeded, was not attacked for fraud. If the Court intend to hold in the two cases last cited, that the decisions of the land department on questions of fact, where they are properly alleged to be false and fraudulent and to have imposed on the officers of that department in making their decisions, are not subject to review by the courts, they are opposed to the rulings in Hosmer v. Wallace, and Hesse v. Bolinger, and the numerous decisions of the United States Supreme Court above cited. This I do not think they intended to do.
In the complaint in this case the defendant alleges fraud and imposition upon the officers of the land department by the parties under whom the plaintiff claims, and makes all other necessary averments to make out his case. They are fully stated in the opinion of the department, and it is unnecessary to repeat them here. Does he not also allege an error in law by the same officers, in setting out that the land was within the limits of the Mexican grant when Hollingsworth’s settlement was made, and that the land was not then subject to pre-emption, and was not so subject until the final survey of the grant was approved in 1866? It may be added here, that the demurrer to the amended answer and cross-complaint was overruled.
The cross-complaint shows clearly that the defendant is in equity entitled to a conveyance from the plaintiff. The error of the Court below was in not allowing him to establish the averments of the cross-complaint. The offers to prove the allegations were competent under the pleadings. They were excluded, and those rulings are the errors assigned. To hold that because a contest was pending between other parties for the land, and therefore the defendant should not be allowed to bring his case before the proper officers, would be as reasonable as to sustain the action of a court who had held that a party could not sue to recover a tract of land on the ground that an action was then pending in the court between other parties for the same land.
The register and receiver refused to allow the defendant to file his declaratory statement and make proof and payment (all of which he offered to do), on the ground “ that the rules of the [289]land department at that time required that no such statement should be filed or received after the commencement of a contest between other parties for the same land”; and there was then pending in the land office such a contest in which the testimony had been partly taken'.
It is not contended that the defendant did not have a right to file his statement, except for the reason just above stated. lie did, in fact, bring himself within the law. (See Act of Congress of 1841, in relation to pre-emptions, 5 U. S. Stats. §§ 10 —15, and Act of 1853, extending the provisions of this act in relation to pre-emptions to State of California.)
The 10th section of the-Act of September 4th, 1841, provides, that from and after the passage of that act, that such a person as the plaintiff is admitted to be, who has made a settlement on the public lands which have been surveyed, and who shall inhabit and improve the same and erect a dwelling-house thereon, is authorized to enter with the register of the proper land office, by legal subdivisions, any number of acres not exceeding one hundred and sixty. .The provisions of the 12th section will be found below in this opinion, and need not be inserted here. The 13th section prescribes an oath to be taken by a person claiming the benefit of the act, to the effect that he has never had the benefit of any right of pre-emption under the act, that he is not the owner of three hundred and twenty acres of land in any State or Territory, etc. This oath is admitted to have been taken. Ho question is made concerning it, and therefore no further reference need be made to it. By the 15th section of the same act, it is provided, that, whenever any person shall settle and improve a tract of land, subject at the time of settlement to private entry, and shall intend to purchase the same under the provisions of this act, such person shall, within thirty days next after the date of such settlement, file with the register of the proper land district a written statement describing the land settled on, and declaring his intention to claim the same under the provisions of this act; and shall, where such settlement is made after the passage of the act, within twelve months after the date of such settlement, make the proof, affidavit, and payment required by the act, and if he fails to file the statement referred to, or make proof and payment within the time pre[290]scribed as to each, the tract of land so settled on and improved shall be subject to the entry of any other purchaser.
Where the settlement is on land not subject to private entry, the declaratory statement is required by the fifth section of the ' Act of March 3rd, 1843 (see 5 U. S. Stats, at Large), within three months from the time of settlement, where such settlement is made after the passage of the act. (See on construction of the Acts of Congress on this point, Johnson v. Towsley, 13 Wall. 88, 89.)
These sections are referred to to show that the right to enter is personal to the settler (10th section), as is the right to make proof (12th section), and the right to file the declaratory statement (§ 15). The 12th section requires expressly, that, prior to any entries being made under and by virtue of the provisions of this act, proof of the settlement and improvement thereby required shall be made, etc. Here the settler is required to make proof, and by the 15th section to make it within twelve months after settlement. Can any officer, whether register and receiver, or commissioner, or Secretary of the Interior, make any rule or regulation which would debar a settler of a right thus vested in him by Act of Congress ? Would not such a rule or regulation be repugnant to the Acts- of Congress above mentioned ? The mere statement of the question furnishes the answer, and demonstrates that such rule or regulation would be of no force.
It would be surprising to find in the slate of the law as above set forth, that any officer of the United States was invested with a power to deny a party a hearing upon a claim presented by him, as prescribed by Congressional enactment. After a hearing, such officer might decide adversely to the claim set up, but certainly he could not deny a hearing. This has been done here, and it is sanctioned by the judgment of this Court. There is a limitation of the power to make rules and regulations, defined in the Acts of Congress. The power comes primarily from the twelfth section of the statute <of 1841, in relation to preemption rights (see 5 U. S. Stats, at Large, 456; Lester’s Land Laws, 62), which is in these words: “ That prior to any entries being made under and by virtue of the provisions of this act, proof of the settlement and improvement thereby required [291]shall be made to the satisfaction of the register and receiver of the land district in which such lands may lie, agreeably to such rules as may be prescribed by the Secretary of the Treasury, who shall each be -entitled to receive fifty cents from each applicant for his services, to be rendered as aforesaid, and all assignments and transfers of the right hereby secured, prior to the issuing of the patent, shall be null and void.”
By the Act of Congress of 3rd of March, 1819, establishing the Home Department (Interior), the duties then discharged by the Secretary of the Treasury in relation to the general land office were assigned to the Secretary of the Interior. (See 3rd section of this act, Lester’s Land Laws, 151.)
The rules and regulations referred to in the Act of 1841 (12th section) were, after the passage of the act of 1849, framed by the Secretary of the Interior, instead of the Secretary of the Treasury. Though in fact framed by the commissioner of the general land office, they are in law framed by the Secretary of the Interior, as they are made in his department and under his supervision.
By the Act of July 4th, 1836, it was provided (see 1st section of act, 5 U. S. Stats, at Large, 107), that from and after the passage of that act, the executive duties now prescribed or which hereafter may be prescribed by law, appertaining to the surveying and sale of the public lands of the United States, or in any wise respecting such lands, and also such as relate to private claims of land, and the issuing of patents for all grants of land under the authority of the United States, shall be subject to the supervision and control of the commissioner of the general land office, under the direction of the President of the United States. The Act of 1849, above referred to, substituting the Secretary of the Interior in place of the Secretary of the Treasury, in all matters connected with the Federal Land Department, gave the former officer a supervision and control over the commissioner above mentioned—the Secretary being under the supervision and control of the President.
But the limitation in the 12th section of the Act of 1841, as to the rules applied to all of the officers above named, whether commissioner or secretary or president, and this must be so, since the whole power as to the public lands is in Congress, and it [292]alone is vested with authority to make all needful rules and regulations concerning them. (Const. U. S. art. iv, § 3; Parker v. Duff, 47 Cal. 561, 562, et scq., and cases cited. Wilcox v. Jackson, 13 Peters, 516; U. S. v. Fitzgerald, 15 id. 421; Frisbie v. Whitney, 9 Wall. 192.)
The language of the provision of the Constitution of the United States referred to is this: “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”
Now what is the authority given by Congress ? It is comprised in the words used in the 12th section of the Act of 1841, above cited, “ that prior to any entries being made under and by virtue of the qirovisions of this act, proof of the settlement and improvement,” etc., “ shall be made to the satisfaction of the register and receiver,” * * * “ agreeably to such rules as shall be prescribed ” by the Secretary of the Interior. The section then proceeds to fix the compensation to the register and receiver for the services rendered in regard to such proof.
The limitation referred to in regard to such rules and regulations to be prescribed, is -as to the proof, not to the refusal to allow such proof. The proof is to be made under such rides and regulations, and nowhere is any officer of the United States authorized to make rules denying a party the right to make such proof prior to the entry of the land. As was said by Attorney-General Butler on this subject, “The commissioner is merely to prescribe rules conformably to which the proof is to be made; the proof itself is indispensable.” (3rd Opinions of Attorneys-General, p. 127.) It may be that such rules and regulations may be made disallowing such proof after an entry has been regularly made. But this question is not before us, as the application here was made before any entry was made or could be made.
The rules and regulations having to be made as to the proof, it does not apply to filing the declaratory statement. This statement is filed under a right allowed by the Acts of Congress, and no officer is authorized to decline to receive it, at any rate, before entry. The right to file such statement is given by the acts referred to, and the officers of the land department could no more [293]refuse to receive it than the hoard of commissioners could refuse to receive a claim for a grant from the Mexican authorities under the Act of 1851, when presented within the period fixed by law. In fact, the declaratory statement is but the filing of a claim. It determines nothing, and is of no avail until established by the proof required by law.
If, then, a party has a right to file his claim, he has a right to make proof. The one is a consequence of the other. It is a matter of no consequence that other parties have commenced to make proof. The authority given by the 12th section of the Act of 1841 applies to each person who presents his claim. That person has such right. It is given to him by law. To hold that this right is cut off or can be cut off by a rule that, the claim cannot be presented, or proof made after some evidence has been taken in a contest between other parties, is in derogation of the Acts of Congress, and is a denial of a right given by such acts. Such ruling concedes to the officers the right to dispense with the law ; in other words, to legislate. This power cannot be exercised by officers of the executive department.
The officers of the land department arc nowhere allowed to deny a party the right to present his claim. These rules only refer to the proof, and not to the presentation of'the claim. Mor can they refuse to receive the proof. They can make rules, etc., as to the proof offered, but this power does not include the right to deny to a claimant the opportunity of offering it.
The settler upon public land, complying with the conditions of the law, has a right to file his declaratory statement until an entry has been made. (See opinion of Attorney-General Mason, 1 Lester’s Land Laws, etc., 380, of Secretary of the Interior, id. 395, 407, 415, 417.) In Danials v. Diggs, the acting secretary held that the law allowed a pre-emption claimant, thirty days from the date of his settlement, to file for offered land, and three months for unoffered land, and an entry thereof, before his application to file, if within the legal time, will not debar him of his right. (1 Lester’s Land Laws, 418, 419.)
The offer to file the declaratory statement, pay all fees and make proffer of payment, as was done by defendant, placed him in a condition to demand his rights here under the law. This is sustained by the decision of the Supreme Court of the United [294]States in Lytle v. State of Arkansas, 9 How. 333, and the Yosemite Valley case, 15 Wall. 91. The rule is thus stated: “ It is a well-established principle, that where an individual in the prosecution of a right does everything which the law requires him to do, and he fails to attain his right by the misconduct or neglect of a public officer, the law will protect him.” In this case, the pre-emption right of Cloyes having been proved, and an offer to pay the money for the land claimed by him under the act of 1830, nothing more could be done by him, and nothing more could be required of him under that act. And subsequently, when he paid the money to the receiver, under subsequent acts, the surveys being returned, he could do nothing more than to offer to enter the land, which the register would not permit him to do. This claim for pre-emption stands before us in a light not less favorable than it would if Cloyes dr his representatives had been permitted by the land officers to do what in this respect was offered to be done.” . (9 How. U. S. 333.)
Field, J., in the Yosemite case, commenting on what is above cited, said: “ There is no question about the correctness of the doctrine here announced; it is only a familiar principle which is stated, that where one offers to do everything upon which the acquisition of a right depends, and is prevented by fault of the other side, his right shall not be lost by his failure.” (15 Wall. 91.)
It is but an application of the principle embodied in the maxim, that equity considers that as done which ought to have been done.
The just interpretation of this rule is, that when a person has done all in his power to obtain what he is entitled to, and he is defeated by the wrong or neglect of a public officer, he is considered as holding the same position to have his rights determined as if all had been done. (Story’s Eq. Jur. § 64 g.)
The defendant does not seek here to enter the land, but asks to be permitted to show that another person has, by fraud and imposition, been allowed to enter it, and has procured that which he ought to have. He therefore asks the plaintiff be held a trustee for him, and be compelled to convey to him the title which he has thus unjustly acquired. It is no answer to the [295]application of the defendant to the Courts, that he has never made any proof in the land office of his right to enter the land. He could not make any: he was illegally deprived of his right to make proof. For that reason, he applies to a court of equity. This very circumstance gives him standing in Court. On this very point, in Johnson v. Towsley, this language is used as to the rulings of the Supreme Court of the United States: “It has constantly asserted the right of the proper Courts to inquire, after the title has passed from the Government, and the question become one of private right, whether, according to the established rules of equity and the Acts of Congress concerning the public lands, the party holding that title should hold absolutely as his own, or as trustee for another.” (13 Wall. 87.) The same doctrine is clearly laid down in Shepley v. Cowan, and Moore v. Robbins, above referred to. If the Courts have no jurisdiction in such a case as this, where the defendant has had no hearing at all, where is his remedy ? If the allegations of his complaint arc true, he is entitled to the land. He has had no hearing in the land office. If it is held that he has none in the Courts, what remedy has he? The Courts have no right to interfere while the matter is before the officers of the land department, and those officers are discharging their duties, in any way whatever, so long as the title remains in the United States. But when the title has passed from the Government, the aid of Courts can be invoked, as we have above pointed out. (13 Wall. 87.) The defendant has sought his remedy in the proper quarter, by seeking redress from the Courts. If he is denied a hearing in the Courts, his cause is decided against him without any hearing at all.
The case under consideration is the same as that presented in. Hollingshead v. Simms, 51 Cal. 159. In that case, the register and receiver refused to allow Simms to file his declaratory statement because the land had been certified over to the State. Simms made no proof in the land office. The grantor of Hollín gshead had procured a patent from the State, to which the land has been listed as University land. This Court reversed the judgment of the Court below, and ordered a conveyance to be made by Hollingshead to Simms, on the ground, that by fraud and perjury Simms had been deprived of that to which [296]lie was in equity entitled. It does not appear that it ever occurred to counsel or Court that Simms must adduce proof of some kind before the land officers, and that in case he did not, the Courts could afford him no relief.
In this case, where the defendant has done all that it was in his power to do, this Court holds that he is bound by a determination, where he was not a party and not allowed to be a party, nor in privity with either party. His claim is not investigated ; and though he may have the title, his rights are determined adversely to him, without a hearing. In reality, it is held, that, though he may have the better right to the land in question, and has done all he could to assert it, he is concluded without any hearing whatever by any tribunal.
The proceedings before the land department were entirely ex parte, and therefore the authorities above cited apply with the greater force. The defendant was not heard at all. The determination of the land officers cannot, therefore, be held in any way conclusive as to the rights of the defendant. There is no determination binding on defendant on any question of fact or law. Though the officers referred to did hold in the case before them that the land in controversy was, at the time (1853) of the alleged settlement of Hollingsworth, public land, and not a part of the rancho Laguna de Merced, this determination was had in the absence of the defendant, and should not be regarded as in the least affecting him. If the land sued for was, in 1853, a part of the rancho Laguna de Merced, when the settlement of Hollingsworth was alleged and is found to have been made, as the claim for it was then pending before the tribunals of the United States for adjudication, it was not subject to pre-emption, and the heirs of Hollingsworth could derive no benefit from such settlement. (Trenouth v. San Francisco, 100 U. S. Rep. 251; Page v. Fowler, 37 Cal. 105.)
For the foregoing reasons, I am of opinion that the Court below erred in excluding the testimony offered as to the rancho Laguna de Merced, and the offer to make proof by ICnowIcs that Hollingsworth never made any settlement on the land in question; that the conclusions reached by Department Two are correct, and that the judgment should be reversed, and the cause remanded for a new trial.