;U

.qpires;

I

.)

J'EI>:EB4:L. :U:POBTEB.

voL,;- 60. "

The itself :into a compla1nt that this claM is asseslJed, proportionately to its cash: .",alue, at a higher or.property. It is not within the p(rwerof the tocorreqt such inequaUty,nor is it practicable orde&ir.able thaUtshould be so. . The demUJ,'rer is sustained.

T. LOCKEY INV. CO. et 8L '(ClrcultCoUft, D. Montana. .November 6, 1893.'

·

· '., I ·

L PtrlflJrp lJAws-P A'l'ENTS....CONCLUSIVEJS"ESS1N CoURT. .. . . a patent for, Ilgrlcultura,l bas Issued to one who. entered It under'!additlonal hOD;lestead" scrip, the determinatlQn of the Iand,:depa'rtment that the landwlUl of the character described, and that was entitled to enter It under BUeb scr1p, la1lnal, and will by the courts. I. B,uQ-.,F'MUD-RIGW,rS OF ·Where such detertnln.atlon in favor pf the patentee Is procure!! by fraud, Buell frliUd 1s commItted against the .'OllhedSfates, whlchli.lone can corqplaIn'.:)t it; and hence a bill to quiet title, filed by one who claims mineral rlgbj:s to the land inquestlon,agllinst the patentee, on the ground ot. such fraud, Is bad on demurrer.

InEquity. On demurrer to bill. Bill by William H. H.Scott againlllt" Investment Company and Richard Lockey to quiettitle,' Demurrer sustained and bill dismissed. Toole&Wallace,for c'omplainant. George F. Shelton, Henry N. Blake, W. E. Oullen, and M. Bullard, for defendants.

KNqWLEs, District Judge. Complainant iD. this case has presented·." bill to quiet title to certain premises described as mining clalms. . It is alleged that defendants claim title to the same by Virtue of Ol'patent to. the'pJ;;emises from the United States. The pat· ent, it apMllrs, is to the premises as agricultural land. It is averred in the biU,that the Claim described in the first cause of aotion was located on the 18th day of March,. 1887; that the claim described in the second cause o.f action was lOCated on the 17th day of December, 1886. It appears tha,tthe patent bears, date June 13, 1889; that the entry wal;l made fn'"Septemberj 1888. When the application to enter the land was made, does not appear. The title of plaintiff, .it will thllsbe is derived froJI). a location of the premises as IIlinerallaIld;that of. virtue of a patent from the U,nited States, ... The pla.intiff has,therefore, only a possessory title, ,or easetqent, tllatisdifficultto The plaintiff asks to have the patent ,fJetaside, upon two grounds: the first is that the cbiim under and by V;iJ1;ue of conveyances from one Patterson patentee of said premises, as a ·Samuel part of lot 2; that the entrance of S¢d land was made with a piece ot."dditional soldiers' homestead, scrip, issued under certain acts .of resJ)e9pvely, as follows: 12 Stat 392; 13 Stat. 35; 14 Stat. 66; 11 St. 49; and Id. 333,-relating to soldiers'

SCOTTV. LOCKEY INV. CO.

35

homestead rights, and 'the homestead .·rights 'of minor children, heirs of deceased soldiers and sailors.· It is allegtd, as one of the grounds which make the patent void, that Samuel R. Patterson was not a 'minor heir of Samuel Patterson, deceased, at the time of the entry of said land, but was at that date over 25 years old, all of which was known to said Lockey at the date of entry; that Lockey was the real party in interest; that the said Samuel R. Patterson never saw the land, and it was not entered for his benefit. It is not averred that the said Samuel R. Patterson was not an heir of Samuel Patterson, deceased, but that he was not his minor heir. The second ground upon which it is claimed that the patent should be canceled is that the premises were known mineral land at the date of the entry of the land, and that Lockey never filed an affidavit of its nonmineral character. To the bill the defendants filed their general demurrer upon the ground that the bill did not state facts sufficient to constitute a cause of action. There is no objection as to the form in which these issues are pret!lented, or of the demurrer. As to the first ground, it may be stated that the land department was called upon to determine as to whether the said Patterson was a proper man to enter said land, and whether he had performed the necessary acls to. entitle him to make the same. In the case of Johnson v. Towsley, 13 Wall. 72, the supreme court said:
"That the action of the land office In Issuing a patent for any of the pubUc lands subject to saJe, by pre-emption or otherwise, Is conclusive of the legal title, must be admitted, under the principle above stated; and In all courts, and In all forms of judJIclaJ proceedings, when tlils title must control, either by reason of the Ilmlted powers ot the court, or the essential character of the proceedings, no InquIry can be permitted into the circumstances under which it was obtained."

In the case of Smelting Co. v. Kemp, 104: U. S. 640, the supreme court said:
"The execution and record of the patent are the final acts of the officers of the government for the transfer of Its title; and, as they can be lawfully performed only after certain steps have been taken, that instrument, dilly signed, countersigned, and seaJed, not merely operates to pass the title, but Is in the nature of an official declaration by that branch of the government to which the alienation of the public lands, under the law, Is Intrusted, that all the requirements preliminary to its issue have been compIled with."

In the case of Minter v. Crommelin, 18 How. 87, the supreme court, in speaking of patents, said:
"The rule being that the patent is evidence that all previous steps had been regularly taken to justify making of the patent."

It may be said, also, that if there was any fraud committed in the representation as to the character of Patterson, or in any representations he may have made in procuring the patent,--as to whether it was for himself, or otherwise,-they were representations to the government through its officers, and any fraud perpetrated thereby was upO'n the government, and not upon plaintiff. The government is the only one who can take advantag-e of such fraud. Vance v. Burbank, 101 U·.S. 514; U. So v. San Jacinto Tin Co., 125 U. S. 281, 8 Sup. Ct. 850.

FEDERAL REPORTER,

vol. 60.

ground presents a question of more difficulty, perhaps. :F.rAPJll"the fact that the land' was known to be mineral at the date of 4ccording to the ,statement in the bill, it is urged that the wlIiSreserved from .sale as agricultural land and could be sold onlYs,tspiineral laI\d. But the question arises, how and by whom is lan-41clal;lsed as mineral or agricultural? It' is held by the suo premecourt that the land department of the government is intrusted with the power of detel'$ining to what class wy piece of land for whiGhan application to enter is made belongs. In the case of Steel v. Co., 106 U. S. 447,,450,1 Sup. Ct. 389, the supreme court, this question,said::
"And' tlle'tnquiry thus presented must necessarily inVOlve a consideration of the charll,cter of the land to which title is sought,-whether it be mineral, for which,;a patent may iS8"e, or agrjcultural, for which a patent should be wdthheld,-and al!'() as to citizenship, ,of the applicant. · * · That departIl)ent,llS we said,', was estabHshed to supervise the V!1rious proceedings ,whereby a conveyance of the title from the United States to portions of thepubllc domain obtained, and to see that the requirements of different acts of congress are fully cq1Dplied with. Necessarily, therefore, it must consider and pass upon the qualifications of the, applicant, and the acts he has performed to secure the titl/!/the nature of the land, lj.nd whether it is of the <lla8S open to sale. Jts judgment is that of a special tribunal, and is unassailable, except by 'direct proceedings for its annulment or lim. itation."

In thee,aseo-fll'rench v. Fyan, 93 S.169, the supreme court held thllt t4e ,department AAd the right to determine whether or not land Wail swampland. ,This case should be distinguished from a case ,where, land is absolutely reserved from entry and sale, such as land included in a military reservation. Then there is no jurisdic. tion in tbe land department to make a sale or conveyance of the same. ButWht-n an application is made to enter a certain piece of land, wbich is not specially reserved from sale by a definite descrip" and the application ,is made to enter it as agricultural land, then the land department must, of a necessity,determine wbether or not it is agricultural land. It wolildcertainly be against public policy t() allow the land. to make a conveyance of a piece of land as agricultural, and leave it an open question, to be determined by a court, or a jury, as to whether or not the land was agricultural would be of little value to a patentee. land. Such a For this reason, I think it must be held that the land department conveyed to the grantor of defendants the legal title to the land, as far as that title was in the government. According to the bill, the plaintiff had a grant of a mining right, which entitled him to the possession of the premises. Under the decisions of the supreme court, it was held by this court in the case of .Black v. Mining Co., 49 Fed. 549, that it was difficult to class the title called a "mining claim i", that, under the statutes and de· cisions of the supreme court, it could be classed as a possessory title, carrying with it an interest in the estate. This· case came up for review in the circuit court of ap:peals for the ninth circuit. 3 C. C. A. 312, 52 Fed.'859. In that case,the court held that the locator of a mining claim does not possess such a title in his location as

BOARD OF ASSESSORS V. PULLMAN'S PALACE-CAR CO.

37

that the rights of dower can be predicated thereon, by virtue of. any statelegislation, as against the United States. In the case of Belk v. :Ueagher, 104 U. S. 279, 283, the supreme court held that congress had seen fit, in its legislation in regard to lands valuable for minerals, to make a possession thereof by virtue of a location sepa.rable from the fee, while the paramount title remained in the United States. Could the plaintiff, with this possessory mining right, maintain an action against the United States to quiet its title to this possessory right, even if it could sue the United States in such an action? The answer must he could not. How, then, can such an action be maintained against its grantor, who has only the title the United States possessed in the land,-that is, the paramount title in fee? A part of the prayer to this bill is "that the conveyance to defendant, and under which it held, may be annulled and canceled and set aside, and the "cloud upon plaintiff's title thereby removed." A private person cannot maintain an action to set aside and annul a patent from the United Stares for fraud committed on the United States. It was so held in the case of :Mowry v. Whitney, 14 Wall. 434. This doctrine was approved in U. S. v. San Jacinto Tin Co., 125 U. S. 274, 281, 8 Sup. Ct. 850, when the question of the title to land was involved. The matters of fraud here charged are committed, if at all, against the United States. For these reasons, I think the demUlTer should be sustained. In 80 deciding, I do not hold that plaintiff has no rights to his mining possessions. That may depend upon whether he has lost any rights by not contesting the application of Patterson to enter the ground and receive a patent therefor. Neither do I hold that upon a proper statement of facts, making it appear that he has a right to purchase the land in controversy, the defendants could not be compelled, in a proper suit,to convey to him the legal title to the same. But, under the allegations in this bill, he has no standing in this court, and Ido not see how he can amend it so as to give him such a standing. It is therefore ordered that the demurrer be sustained and the bill dismissed.
BOARD OF ASSESSORS OF PARISH OF ORLEANS et at. v. PULLMAN'S PALACE-CAR CO. (Circuit Court of Appeals, Fifth Circuit. No. 160.
1.

TAXATION-RAILROAD ROLLING STocx-INTERSTATE COMMERCE.

February 6, 1894.)

It is within the power of a state to tax sleeping cars and other rolling stock of a foreign corporation, employed in Interstate commerce, in the ratio which the number of miles of line within tbe state bears to the total number of miles of the whole line, as is done by the Louisiana statute, (Acts 1890, No. 106, § 29.) 55 Fed. 206, affirmed. Pullman's PalaceCar Co. v. Pennsylvania, 11 Sup. Ct. 876, 141 U. S. 18, followed.

2.

BAME-REMEDIES-ILLEGAL TAXATION-INJUNCTION.

The provision of the Louisiana statute (Acts 1890, No. 106, § 26) requiring taxpayers who fall to make a return of their property to apply,