630 1
(C'irettft
court,
W. D. Wa,71tngton. August 20,1890.)
lanqs in California other !'acUlo coast, states, lands whioh. had been offered at public sale, but, not sold br. the United States, and which were thereafter with· from saillbecause tHttiated within tHe limits of the land grontto the North. er\! I'l!.clfic Railroad belong to the class of unoffered4'Ilds, and may be lawful1y sold I!.S timher.Jandsunder said act. ' & SAME. ' , " The billy stony land, covered with flrAAd,Qedar forest trees, common In the westpah 01 this state, are chiefly vl!.luable for timber, and unfit for cultivation. W.ithini,t.,b.ll meaning 0.fs8I,d'act, 81thGu g h the SO.iI is no.t barren, and may be made. to . yield,l{ooo cro,ps after. removal of and stumps. The true interpretation of tbe 'aetdoes not require the substitution of tbll, word "solely" for the "chiefly, ",nor, do the words "unflt for cultivation" mean" notcapable of being made tor AUl,tivation. n :" , , I
2.. SAME-'-SALE oF1'IMllER.LAND;. ',' " .Within thE! :U\eaningofthe act of JuneS, ,1878, providing for the, sale of timber.
. When thegoverl'ltileri"t olthe applies for equitable relief, it must, :. like au Indlvidu&! sUitor, do equity on itlfpa:rt; In a suit to cancela patent for land on the ground 'f,n iSSUing it,when thepatenteeJs not guilty of fraud, it is essentiaUor the to to ,.
ern
'" BAME-IMfROVEMENTS.
",
The' 'Word "improvement8, "as' used in' iald act, meantl valuable improvemeuts. An and dilapidate4 cabin !:Lndremnant of ana.bandoned fence, which are of no,use,,,renotsuch improvements.', . '
5. BAMB.:....hAUD.'
a paten tal! oithe United States having conveyed the land within one of his patent to montb',after enterlngU in. the, iand-office. and prior to the 'a vendee, ':OVhp llt about tbe time of saId transaction also purchased other lands from, a,numbeulf pel'80nS, who witbin areeent'periGld entered the'lands so conveyed by is not a 9ircumstance from whicn all. inference, much less a conclusfQn. CB,n be faIrly drawn that there was an, , ,said ,patJentee aM his vendee, made prior to ,the entry, whereby .tb,e to be.a9Qulred shOllld inure and. being no eViqence tend. ing to connllct with any conspIracy, no mference unfavorable to him .. ,cau be,drawn from evidence ,tending til prove 'that his vendee had receIved conveyfrolJl pursuant to agreements I!.Dtedating ances of . entry . ',' " .. . ' ,," ,'I
8. 'BAtoiE=-tl.IGiITS 01" PATENTED.
,A.p,urcbaserfrom the,United tbeact above referred to, is not re'quirea ,to retain the land. ,After perfecting his rigbt tO,it In good faith, tbe jlls dds- , \pmwmdi immediately becomes' vested in him, and, in a suit to' cancel a patent on the !. g;roiJIjdof frAU,,d, Wi,thO\l.t',nce' 0.1 t'r· . au,d, on t.he part of the patentee Other than above iuaicate4, the prayer of the biU will be denied. " · (SyUablJj'ZriI'thllCou,rt.), ".,',. .
In Equity. , P. JI.,WinBtont,UI S. AttY.,'tlndP.;O'Sullivan, Asst. U.S. Atty. B. Ji'. 'DCltnwonal1dRaleigh Stott,fordefenuants. , . . , HANFoRD,I. The I;lefendant' David· E. Budd acquired title by a patent from the United States to a tract o,f,li:ttld described aathe S. E. 1-of township' 9-NJ; range 1 Willamette meridian, situated in Cowlitz. county,; in, thUletate. and; by :direction iflfthe attorney general this suit to cancel snid patent was commenced in the district court of the second judicial district of Washington Territory, holding terms at Vancouver, in which court the issues were made up, a trial was had, and a decree for the defendant was rendered. The cause was then removed
"
·UNITED.
V. BUPD.
631
by an appeal to the court. of the territory ofWashington , and was pel.lding in the last-mentioned conrt and undetermined at the time -of the admission of the state of Washington into the Union, whereby it was transferred to this court'. 'The testimony introduced upon the trial in the ,territbrial district. court. was stenographicfllly reported, and, together with all the exhibits and documentary evidence,has been duly certified, amps now on file in this court. It ,is aSsumed by the court, because conceded by. all the parties, that the case is now properly before the court for trial de:novouponthetestimonyand proOfs appeanl'1g in tHe record, precisely 'Would have been int:he supreme coutt ofthe terrifory ifthe existence',of that court had continued long enough for a hearing to have,beenhaq and a decision of thecllse to, ha\fe been \ rendered thereiQ. The patent which the govemmentis here asking the ,court to cancel was· issued under the provisions of the .act of' J une3, .187S., providing for the sale oftimber-landsinCalifornia,Nevada, OrE(gOll, and Washington Territory.. , Supp'. Rev. St. 328. The, first three sections of this act contain the 'provisions which are()f. importance in this CRse. They are.as follows: . . . . . "sec'UQn 1. That survllyed,public .Iands of the United.States;within the
states of and .in Washington Territory,not ,included within militar)'i, Indian.. 0.1' otherr,eservations, of the United States, vall¥J,ple chil;ltly· 1'0/" but unfit for,cultivation,ahd which have not been offered at publicl;lale aecording to law, may. be Bold to eitizensof the or pe/:son/'l who haVe declared their intentions to, become such, not one hundred awll;lixty acres to ,any person, 'or as8\¥1iation of persons. ;a,t,theminim.um price 'Of two dollars and fifty :cents per ,acre; alld lands valuable clJietly ;for. stone may ,be sold on the same terms8S prov\doo, tlJat herein. contained shall defeat or impaIr anybfma :fide claim.llnd!3r any law of the U oited States, 'or au thorizetltl? sale .of anY,mining'cll'im, or the improvamenta 'of any bonafldesettlt>r,etr lands gqld, cinul!-bar, copper. OI'coal,. or lands selected by the'said states under any law of the United States donating lands for internal improvements. ednci\tion, or other purposes: and prOVided" further, none of the rights conferred by the act approved JUly 26, 1866, entitled (I) · An act granting the'right of way to and canlll owners over the public lands, and for other' purposes,' sllall 'be abrogated by this act. AM all patents shatlbe subject to any vested and accrfted water-rights, or'rights to ditches and reservoirs used in connection with sucbwater-rightsj as may have beenll-cquired undel' and by the provisions of said act; and such rights shall be expressly reserved in anY. patent issued;underthis act. Sec. 2. 'fhat any person desiring,to avail himself of the provisions of .this act slJall file with the regieter of the proper district a written In duplicate, one of wbicbis to be tl'ansmitted tothegeneralland-office, designating by legal subdivisions the particular tract of land he desires to purchase; setting forth that ,the same is unlit for cultivation, and. valuable chiefly for'its timberotstone; that it is uninhabited, COntains no mining or other improvements, except for ditch or canal purposes, where anr snch do exist, save such as were made by or belortg tathe applicant, nor, .as depoqent verily believes. any :valuable deposit of goold, silver, cinnabar, cOpper, or coal; that deponent hI'S malle no other application under this act; that he dol's not apPlY to purchase the same 'on: speculation, but in· 'good i'aith to appropriate it to. his 'own exC'lusi va use and benefit; and that he has not, direcUy or'llldirectly, made any agreement or contrach i.D an,y way prml\,nner. Wlhatsoever.
632
FEDEItAL :REPORTER,
vol. 43.
by which the title which he might acquire from the government of the United Stlltes should inure, in whole or in part. to the benefit of any persoll except himself.-which statement must be verified by the oath of the applicant before the register or the recei of the land-office within the district wherein the land is situated. .A,nd if any person' taking such oath shall swear falsely in the premises, he shall be SUbject to all the pains and penalties of perjury, and shall forfeit the money which he may have paid for said lands, and all right and title to th6samt'; and any grant'or conveyance which he may have made, eXclilpt in the hands of bonajidepul'chasers, shall be null and void. Sec. 3. that. uppnthefiling of said statelnents, as provided in the second section of the regh,terof the land-office shall post a notice of such application. embracing a description of the land by legal subdivisions, in his office for a pel'iod:1of sixty d'ays, and shall furnish the applicant a copy of the same fpr 'publication. at of such !lpplicant. in a newspaper published nearest 'tile location ot the premises. for a: like periodof time'. And after the expitaof the said sixty ,days. if no adverse claim shall have been filed. the per$on, desiring topllrchase,shall furnish to the r.egister of the lann-office satisFirst,that said notice of the application. prepared by tlleregister as afot'esaid; was. duly published in a newspaper, as herein required; s!econdly. that the land is of the character contemplated in thl's act, unoccupied. and without improvements other than those excepted, either mining or agricultural. and that it apparently contains no valuable deposits of gold, silver, cinnabar, copper. or' eGal. And. upon payment to the pl'operofficflr cif the purchase money of said land, together, with the fees of the register and the receiver. 8S pmvided for in case of claims in the twelfth section (2) .of the act ,approved. May 10.1872, the applicant may be permitted to enter said tl'a.ct, and, 011 the transmission to the general land-office of the papers and testimony in the ease. a patent shall issue thereon: provided. that any person havJng a valid claim to any portion of the land may object in writing to the issuance of a patent to lands 80 hald by him, stating the nature of his claim thereto; alid evidence shall be taken, and the merits of said objection shall be determined, by the officers oithe land-office, subject to appeal as in other land caseS. Effect shall be given to the foregoing provisions of this act by regulations to be prescribed by the commissioner of the genel'alland-office.·J , An examination of this statute shows that it was framed with great clire, and thatconl-{ress intended by it80wn provisions, a,nd the regulations which it authorizes the secretary of the interior to make,Jo insure such publicity of all proceedings, and such delays and opportunities for investigation and deliberation, as to render frauds and evasions of its provisions certain of exposure before the acquisition of dtitle to any tract ofland could be tinally completed under it by the issuance of apatent. It was after the affidavit required by the second section of the act had been made and filed by the Budd, and after he had given the :notio.e, furnished the proofs, made the payments, and suffered the delays ,required by the act, that the officers of the government issued to him this patent as evidence of a complete and perfect title. This court has 'the right, and it is itsdutr, to undo what has been done by theexecutive branch of the government by a cancellation of this solemn 'instrument, subscribed, as,.it is, by'the name of the president, if suffi:cientgrounds' for so' are shown toexistj but only for good and sufficient reasons, alleged and clearly proven. ' The alleged gropnds,foJ1ctlnceling this patent are 'as follows:
UNITED STATES l7. BUDD.
633
(1) The land had been, at a time prior to the date of the statute, offered for sale;.therefore the patent was issued unlawfully, as this statute only authorizes the sale of land which had not been, prior to its passage, offered for sale. (2) The land is not of the description to which this act applies, because not chiefly valuable for timber or stone, and unfit for cultivation, but is valuable for agricultural purposes;. and the defendant Budd, in making his proof in the land-office,prol'ured the giving of· false testimony as to the character of the land in this respect. (3) The land was not subject to sale under this statute, because at the time of Budd's application to enter it tbere were valuable improvements upon it,. not made by him, and he was guilty of procuring false testimony in this particular. (4) The defendant Budd, before he applied to purchase the land, had made an agreement with bis co-defendant, Montgomery, to transfer to the latter the title which he should obtain, and be did 1I0t apply to purchase the land for bis own use; and the affidavit which he made to the effect that he had not made any agreement or contract wbereby tbe title which he should obtain should inure, directly or indirectly, to any person or persons otber than himself was in these particulars false and forsworn. . It is a conceded fact that the township containing the particular quarter section of land now in dispute was surveyed by the government in 1863, and all of said township not claimed by actual setUers and filed upon was thereafter offered at public sale, under the land laws ofothe United States, and remained as offered laud, subject to private entry at the minimum price of $1.25 per acre, until the 13th day of August, 1870, at which time it was withdrawn from sale in consequence of being .situated within the limits of the grant to the Northern Pacific Railroad Company. It is also a conceded fact that a small portion of this particular quarter section, to-wit, about 15 or 20 acres, is prairie, and all the balaoce.·of it is forest, being covered with fir, cedar, and hemlock timber, and, an undergrowth of vine, maple, sallal bushes, and all the various shrubs .and plants usually found in the forests oithe western part of this state; and it is further conceded that, at a time prior to the application to purchase this land. by the defendant Budd, it had been settled upon by a man named Doherty, who constructed a small cabin for his habitation, anc} made some attempt to cultivate the small prairie above referred to, And the record shows that it is conceded that Budd's application tv enter this land was made on the 23d day of August, 1882, and he made his proofs and paid for the landjand a receiver's receipt was issued to him, on the 10th day of November, 1882; and that on the 8th day of December, 1882, he executed and delivered a deed of the land to the defendant Montgomery, and the patent conveying the title to Budd was issued on the 5th day of May, 1883. I have now stated the premises from which the necessary conclusions of fact and law are to be reached which shall determine the rights of the parties here involved, and will now proceed to cunsider severally, and in the order above set forth, the several grounds upon which the court is asked to do equity, and, as a matter of justice, to cancel this patent. In considering the merits of the first of the several grounds for canceling the patent, it is important to keep ·in mind thatthis is not likeapra:'Ceeding.-to'rescind a contract.. The gove:mment has not offered.
63:4' itreceiV'edfor the land;llnd, ,while it seeks to be restored pray t? have the parties on th'ey occupIed before Its officers o,p4 the land under this statute,alld: accepted his money. The .case is prosecuted to secure an absolute forfeiture of all the defendants' interests in the land, as well as the money 'pliid' 'for it, and proceeded under the theory that whatever is ilieg!ilalld wrohg in the tranl!action is chargeable solely to the defendants. Now', ,if)Jl thl!-t is 'as constituting the first gr(>UQd for canceling the patent, both as matter of fact and of law, were concllded, the courtw:ould be unable tt) find any such fraud intended, or misconduct on the part .of the defendants, as would afford either legal or eqUitable for the confiscation ·of their property.. At most it is only claimed that'ihis particular land, by reason of having been once offered at public sale,isexcluded from sale under the act of June 3, 1878. If this is SO, the sale of it to Budd under that statute was an error, but only an error, and one for 'which 'the officers and agents of the governi'n i a're chiefly responsible; for upon them is cast, the duty of adnt ministeribgthelaw according to its provisions, and of holding all persons seeking to obtain title to lands from the government to a compliance with the iJawS' lind regulations prescribed for the determination of their rights. When: the goV'erl'llnent of the United seeks relief from a Oouit'o£ equity, it is as mU<lh bounden as anyimlividual suitor by the rulesohquity.It can obtain such relief only when entitled to it upon principles ofAquity and good consci!3oce. U. S. v. JVhite, 17 Fed. Rep. 561:; Tin Co., 23 Fed. Rep. 279, and the same case 125 U. S. 27-3, 8 Sup. Ct;. Rep. 850. It ('annot, to correct a mere error in a transaetion not tainted with crime or fraud, perpetrate a wrong on its part as to deprive its adversary of valuable property or a sum of money without any compensation or equivalent therefor. If this were Ils11itbetiveen two private individuals, the plaintiff would not be equitably'ebtitloo: to a rescission of his confract and restoration of his title to iheland without first on· his part repaying the purchase money which be:ha:dreceivedj and by the same rules of equity and justice the right of the<g-Qvernnient torecover this land, and also to hold the purchase money paid it; must be denied,unless a forfeiture of the defendant's rights on the grmindof fraud or willful misconduct can be shown. , .· ;In addition to the above considerations; I hold that there was in fact no such errorl:l6mmitted in allowing Budd's application under this statute as counsel for the government have claimed. I think a rreasonable construction' of the statute would limit the application of the words, "and 'Which have, not been ofl'ereu at public sale according to law," to lands which, at the date of the aot :belonged' to! the class of unofl'ered lands, as ,*,ntl'adistinguislted froDlwhnt. in thepmctice of the land department, iti knownaa,1f offered" lands; that is,lands which are,fmbject to private £Ilsh etltryait tbe minimum price. .By the insertiOli of this clause in the statuten<hhorewas intended thal1tOlavoid the absurdity of making a ll'lw; providing for the· sale of land .Il.t the price of $2.50 .per acre, under
for
·eTA-TES" tI. I3li"DD,
635
prescribed liU1itations and restrictions, which, under existing laws, were already subject to sale at one-half that price, without the limitations and restrictions. St>\liewing the statute, lij!l this particular tract of landha<i been withdrawn from .sale at a time prior to the date of the statute, it;s status was at the date of that actthat of uD,offered lands; and if otherwise statof the character described in section 1wa!! subject to,sale ute, and the sale olit to Budd was lawful· .Most of the testimony introduced on the part of the directed to support the secondproposition,-that is,.as to the of the land, whether it is in fact unfit for cultivation,and able for timber; and the efforts of counsel in the argument were mainly directed towards this branch of the case. In. the argument it has been contended that a proper interpretation of the statute would exclude from entry and sale, under its provisions, aUlanda capable of being improved or .redeemed from their natural unfitness for cultivation, and rendered capable of yjelding crops of vegetation, grain, and fruit, and which have any element of value other than timber or stone; in other words, the court is asked to judicially determine that congresll, J)y the use of the words "valuable chiefly for timber, but :unfit for cultivation," in the first section of the act, and the words "unfit for cultivation, and valuable chiefly fof its timber or stone," in the second section, failed to express the meaning intended, and that the reading of the act to express its true intent and meaning requires the rejection of those words, and the substitution in their plooe of such words as the following: "Unfit and incapable of beingrnade fit for cultivation, and of no value except for timber or stone." In support of this contention, the opinion of Mr. Secretary 'feller, in the case of Spithill Gowen, 2 Dec. Dep. Int. 631, has been cited, in which heaays: "This act contemplates such timber-lands as are found in broken. rug*ed. or mounlamolla regions. where the soil, when the timber is cleared oU. ia unfit for cultivation. and not lands. though heavily timbered. where the soil Is suscevtible to cultlvation." The act in terms makes no reference to broken, rugged. or mountainous regions, and does not aUude to the condition of the soil, after the removal of the timber; fl,nd I am not aware of any rule or reason requiring the court to so construe the statute as to enlarge the limitation which it imposes, or narrow its application so as to .exclude all lands in the states and territory named, except the inaccessible portions in the broken and mountainous regions. For the production of valuable timber, strength and fertility of the soil, and conditions favorable for the growth of vegetation, are necessary, and there are no timber-lands in this state which will not, after the removal of the timber, yield crops of vegetation, grains, and fruit, .and there are no broken, rugged, or mountainous regions unfit for cultivation where valuable timqer can be found; and to give the statute the construction contended for makes it a self-contradiction; and impracticable, and thereby nullifies it. It is plain, also, upon that it should be underthe face of the statute that congress atood,according to the ordinary meaning of the worda and phrases used.
636
J'EDERAL REP()RTEB,
The introductory words in the first section are "that surveyed public lands of the United States * * * may be sold. * * *" This language of the· statUte -itself carries a directcontradictiOl). of the assertion made in the opinion of Mr. Secretary Teller, above cited, that the act contemplates such timber-lands as are found in broken, rugged, or mountainous regions. The act was made to go into immediate effect upon its passage, and by its terms it embraces aud authorizes the sale of surveyed lal1ds, which arAnot to be found in broken, rugged, or mountainous 'regions; for it isa matter of history in this country that and improvements usually precede the surveys, and it is a matter of continual complaint that the government fails to extend its surveys as rapidly as the agricultural, lumbering, and mining industrial enterprises of the country demand,and it is a matter of common know}edge that the remote and niGre inaccessible regions, where the hmd is ullfitfor cultivation, havanot been surveyed, and no provision for the survey thereof appears to have been contemplated. To fairly interpret this fltatute, the general descriptive features of the country to which it applies must be taken into account. In each of the states named there is a diversity of climate: timber, soils, and natural formations. This is especially true of Washington, which may be taken as representative of all, for the purpose of a more minute and particular description. Within this state are mountains, plains; hills, valleys, rivers, lakes, seas,forests, prairies, and mines of coal, iron, and almost every kind of minerals. It is divided by the Cascade range of mountains, running north and 'sotitlni6l'osS its entire breadth. East of the mountains the country is 'gEmerally timberless, and the land is good, and easily brought under cuI'twation; , However, it is'l1ot all of this description. There are in this part of the state small areas of timber of good quality, and the land is ofinferiO'l"quality for agricultural purposes, though not barren. Thtlse iimbere8 tracts answer thitJ'descripti6h in the statute of lands, unfit for culti'vlition, andchieflyviiluabla'for timber, and they are within the limits of the public surveys, made and being made as rapidly as appro:. priationscan be obtained. for the purpose. All ()f the state west ofthe mountains' is atimbered;regioll, though there are a few small prairies, The river bottoms and valley lands, having a rich alluvial soil, is considered good farming land,lIlthough in its natural state it is covered by 'a dense growth of alder, ash, cottonwood, and maple timber, which is useful and valuable for fuel and many other purposes. The stum ps and roots of this timber soon decay after the trees are cut down, and in two 01' three years'time they caii be easily and cheaply removed and the land then yields bountiful crops of vegetables, grass, hops, grain, and ;fruits. 'Fortunes have been made out of the produce of comparatively small farms of this quality of land by men who,'without capital,.took 'the land in thel'ough, and by their own hands improved and cultivated it. This class ofland, although valuahlefor timber, is not chiefly so, 'and is ilofunfit for cultivation, because it can be profitably cleared, improved, and cultivated. The most valuable timber, however, grows "upon hilly 'and soony'land. Fir and cedar· stumps· and roots will re-
UNITED STATES II. BUDD.
637
main many years without decaying, and cannot be got rid of without much labor or great expense; and the soil of such timber-lands is not so rich, and will not yield so abundantly, as that which I have previously described, yet will, when cultivated, produce the same kind of crops. After removal of the valuable timber, and while the stumps remain, it is readily convertible into. pastures, but is unfit for cultivation,because it cannot be at once made tillable without an expense greater than its value for agricultural purposes. Such land is chiefly valuable for its timber,'and vast areas of it are to be found within the limits of the surveys. It is the character of land contemplated by this statnte, and is as much subject to sale under its provision, if situated in near proximity to navigable water, or a farming community, ora city, or a railroad, as if it were in some remote, broken, rugged, and mountainous region. To a person acquainted with this country, this class of land is as readily distinguished from the alder bottom and valley lands, which are considered valuable for oultivation, as a forest is distinguished from a prairie. The evidence before me leaves no uncertainty or doubt as to which class the tract conveyed by the patent to Budd belongs. On the pad of the government, eight witnesses have testified, proving that the land can be CUltivated after the removal of the timber and stumps; that it is similar to other lands in the immediate vicinity, occupied by settlers, who each cultivate small tracts thereof; that in their opinion the land is valuable for agricultural purposes; and that the land is covered with a 'crust of leaf mould, which is an excellent fertilizer. And to confirm this testimony samples of the soH and specimens of the grain and grass grown by the settlers have been introduced. These witnesses show by their evidence that the tract, except about 15 acres, is timbered, and 'show ,nothing as to the value of the timber, except that there has not been any market or demand forit. This evidence is insufficient to warrant the cancellation of a patent. But the defendants have not been content to iaccept a Scotch verdict. They have met the issue with evidence of the· most conclusive character. Thirteen witnesses were called, who testified that the soil is stony and inferior for farming purposes; that it contains excellent fir and cedar timber, besides hemlock and an undergrowth of various shrubs and brush; that the trees are large, tall, and straight and sound, and will yield from 50,000 to 150,000 feet of the best quality of lumber per acre,-and this testimony and estimate is not controverted. The field-notes made by the government surveyor at the time of surveying the land, more than ,25 years ago, describe the land as being stony and second rate, and the timber as fir, cedar, and hemlock, and the most convincing testimony of all is a series of 12 photographs, taken near the centers of each legal subdivision of the tract. These pictures exhibit, with unerring certainty and faithfulness, magnificent trees, standing so near together as to force each other to grow 'straight and tall. They satisfy the court that this tract is valuable and desirable for the timber upon it, and also that no man would be willing to subjugate this piece of forest -for, the mere sake of cultivating it.
FEDERAL,\REli'ORTER,
vol..43.
Buti/few are neededto,diaposeofthe third proposition·. The 'evidenCe shows that there were· no valuable improvements'on the land at the time Mr. Buddplirchased it. ',;Mr; Doherty, who at onetime settled upon1and .attempted to improve'the land, soon became'discouraged and abaridoned lit; his cabin became .dilapidated and worthless, and all his other pimprovements, except the ;tlemnallts of a fence, disappeared long prior to Mr. Budd's entry. ' . The fourth reason alleged.for oonceling this patent also vanishes upon an examination .of the eviderice,.Ifdrthere is nothing to support the ,charge made in the bill, and .explicitlydel1iedin the answer, tHat prior to his application topurchase'this land.Budd entered into an agreement with Montgomery to acquire the·title,for him. If suchah agreement was made,the evidence certaInly; fails to show how, when, or where it was Tbere Is no direct evidence of such an agreement, .and the circumstances shown .lead only to a'suspIcion, not to a reasonable inference, much lesato a conclusIon.., These circumstances, briefly narrated, are as follows: (1) Mr. Budd gave a deed of the land to Montgomery within one month from the time of making final proof in the land-office and rethe receiver's receipt..' (2) About the time or this transaction Montgomery purchased a large uu mber of other tracts ofland in the vicinity of this one; from persons who entered it as timber.land, and he was known to beio the market as a bl1yer of timber-lands in that locality·. (3) A man named White spent a considerable timeprevioU's to these purchases . made in exploring the lands, and represented himself at the tiple ias being in Montgomery's employ, and he;acted as a witness for nearlyallrifthe parties who made entries of timber-lands, and afterwards sold them to Montgomery, and' he was also a witness for the defendant Budd in making his final proof as to this tract. These'are the only circU'1D8tanceBshownby legal evidence. within my opiniontending to prove the gravechrttge made against the defendant Budd of having falsely sworn, in his application to purchase this land, that he did not apply to purchase the sallle 011 speculation, but iii good faith to appropriate it to his own exclusive use and benefit; and that he had not. directly or indirectly, 'made any agreement or contraCt, in any way or manner, with any person or persons, by which the title which he might acquire from the government of the United States should inure, in whole or in part, to the benefit of any person except himself, when in fact he had previously contracted with Montgomery for a consideration to acquire the title for Ml;lntgomery's benefit, and that the deed executed subsequent to the final step in perfecting his right to the land was in fact given pursuant to an agreement made anterior to:the initiation of said.proceedings. Other testimony was introduced upon the trial, which was objected to .asincompetent and irrelevant, to the effect that Montgomery had at some time prior to Budd's entry of visited that part of the country, and while there had advised one settler in the neighborhood to take a timber claim,assuring him that the claim would be rea.dily salable, and that he could· make a bonus of at least $100 by the transaction; and that Mr. White, .above referred to, had promised another man a bonus of
STATES !I. BUDD.
689
$100, if he. would secure a timber claim, and sell it to Montgomery, and that this 'party acted upon thesug/l;estion, and did enter 160 acres of timber-land, and,ll.fter making his final proof, deeded it to Montgomery, and received therefor $100 from Montgomery, by a check, which was afterwards cashed at the bank, which sum 80. paid was in addition to the amount necessary to pay for the land in the land-office, the landoffice fees, and all expenses of acquiring the title, which Montgomery also paid. This evidence is immaterial, but I do not wish to rest my decision upon any mere rule of evidence or practice. I prefer to receive the evidence, and consider it for what it is worth, which is necessarily very little in this case. It was offered by the government npon the theory that it connected Montgomery with other translWtions which were in fact fraudulent and against the government, and similar in kind to what is charged against him in this case jand it is assumed that he may be found guilty of the specific offense here. charged upon evidence not proving, or tending to prove, the particular fact alleged, but going to prove the commission of other offenses of a similar kind. But, even if all this be true, this evidence proves nothing, and does not in any degree tend towards proving anything material as against the defendant Budd. There is no evidence connecting him with any conspiracy, so I do not see how it is possible to draw from the circumstances shown by this testimony any inference that Mr. Budd was guilty of any such fraudulent conduct as that of Mr. Searle, the self-impeached witness, who testified thatbe took ,a.. #mber claim for Montgomery at White's suggestion for a. bonus 0£$100. . material question involved is not whet4er Montgomery was contriving to acquire title to a large tract ofland by.evasion of the law I but it is whether the entrYlllan-that is, the defendant Budd-was guilty of evading the Jaw, or of perpetrating a fraud upon the United States, and whether he s'Y0re falsely in the affidavit which he filed upon applying to enter this land j for, if he acted in good faith up to the time of the issuance. of the receiver's receipt, his right to the Jand then became perfect, and from that time the jm was in him, and, as against him, it cannot be contended that evidence of the misconduct of other persons. Qot shown to hav:e to have been acting in concert with him, sufficient to justify any inference whatever. This statute does not, by its terms, assume to obligate a person who acquires a title to land under it to lteyp the land, orto control hifi use Or right to dispose of it for any period of time after he shall have complied with its in perfecting his right to it. It only requires good faith on the part of the purchaser. and it is intended to prevent the acquisition of land from the United States at a wholesale rate by individuals or corporations, by using individual persons, who do not acquire it of their personal volition, but simply as mediums for the transmission of titles from the government to land-grabbers j and to effect this object the law goes no further than to prohibit entries by persons who have, prior to the filing of their applications, bound themselves by contracts. Upon a careful examination of all the testimony, and in the light of
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640
FEDlllRALBEPORTER,
facts shown by the record, t conclude that there is !lin entire absenceof testimony of the commission of any fraud or evasion of the laws of the United States, or of any such wrong on the part of the defendants as to justify the court in granting the relief prayed for in this bill. Let there be a decree in favor of the defendants.
WALBR v. WOLF et ale (Oircuit Oourt, D. Minnesota. October 25, 1890.) PLEADING-COMPLAINT-DESCRIPTION 011' PLACE.
In an action for personal ipjudes reoeived by a ohUd while plapng with a detonating oap uSed to explode dynamite, an allegation in the oomplamtthat defendant deposited the oaps on the premises ofplaintiff's father, at a designated number and street, suffioiently describes the place, without stating specifically on what part of t.he uremises the oapswere deposited..
At Law. Motion for new trial. Erwin &; Wellington, for plaintiff. Davi8, Kellogg &; Severance, for defendant. NELSON, J. I find nothing in this case that would justify me in granting themot:on for a new trial. Defendants' negligence was found by the jury to be the proximate. cause of the injury QOPlplained of.. The defendant's 'could not been misled by the allegation in the complaint. It wa.snot necessary to aver any more specifically the place oli the premises of plaintiff's father where the fulminating <japs were piaced. Witnesses were introduced by defendants, and a map to show that the water-pipes were not piled up or located on the alleged premises. There was conflict of evidence, and the jury fonndagainst the.'defendants upon the weight of plaintiff's testimony. The case was fairly tried, and the law correctly 'given. The tenth request was properly modified; The newly-discovered evidence is cumulative, and not sufficient to warrant a new trial. It is true, as counsel states, that new t.rials are granted in the discretion of the court, but such discretion must be a legal one; and, when no satisfactory legal reason can be urged in favor of the motion for a new trial, it must be overruled. Such is my duty on' this application. Motion denied.
