Grant v. Oliver

Paterson, J. This is an action to recover the possession of eighty acres of land situated in the county of Alameda. The answer denies all the allegations of the complaint. Defendant filed a cross-complaint, setting forth that he settled on the lands in controversy, with his family, claiming the same under the pre-emption laws of the United States, prior to July 8, 1878, and continuously since that date has resided and made valuable improvements thereon. The defendant then proceeds to show that Thomas’s application for a homestead was filed at a time when the lands in controversy were not subject to sale under the land laws of the United States, because they were within the exterior boundaries of a Mexican grant; but notwithstanding this fact, the claim of Thomas, plaintiff’s grantor, was approved by the officers of the land department in violation of law. It is alleged that the name of Thomas was fraudulently used for the benefit of one Benson, and that the commissioner of the general land-office and the Secretary of the Interior, in violation of the legal and equitable claim of the defendant, neglected to read, examine, or weigh the evidence taken before them on appeal from the decision of the register and receiver awarding the land to Thomas, and, without an examination of the record, signed and filed written opinions adverse to the claim of defendant, which had been compiled and fabricated by clerks and subordinates. It is further alleged that Thomas never executed any power of attorney to Dey, who, as attorney in fact, executed and delivered to the plaintiff the deed upon which he relies. The prayer is, that plaintiff take nothing by this action; that the patent from the United States to Thomas be declared void; and that upon defendant making payment to the receiver of two hundred dollars, the purchase price of the land in controversy, the President of the United States be required to issue and deliver to him a patent for the land.

There is no merit in the cross-complaint, and the plaintiff’s demurrer to the same was properly sustained. There is nothing in the cross-complaint which takes the [161]case out of the general rule that the action of the land department, acting within the scope of its authority, is binding. The land in controversy was within the jurisdiction of the land-officers; the merits of the defendant’s claim were presented to the commissioner of the general land-office on appeal from the decision of the register and receiver awarding the lands to Thomas, and to the' Secretary of the Interior on appeal from the decision qf the commissioner, and both of those officers decided adversely to the claim. On July 8,1878, the official plat of the township was filed in the land-office of the district in which the lands were situated; and on that day the application of Thomas for an additional homestead was filed with the register and receiver. Defendant’s' pre-emption claim was filed July 12, 1878. It is alleged that the lands were not subject to sale under the laws of the United States when Thomas’s application was filed, because they were “ within the granted and confirmed exterior boundaries of the well-known private Mexican grant Laguna de los Palos Colorados”; but subsequent allegations show that on appeal to the circuit court from the decree of confirmation entered in the district court, the grant was held to be a float of three square leagues, and no more, and that it did not attach to any specific land until it was located by the surveyor within^ the exterior boundaries of the larger tract described, and the survey was finally approved by the officers of the land department. The decree of the circuit court was entered December 4, 1874, and the field-notes and plat of the survey were approved by the commissioner of the general land-office in April, 1878, and by the Secretary of the Interior on August 10,1878. The land in controversy was excluded from the survey. The grant being a float, only the quantity actually granted was reserved during the examination as . to the validity of the grant; “ the remainder was at the disposal of the government as part of the public domain.” (United States v. McLaughlin, 127 U. S. 428.) .