JAMES JOHNSON, Plff. in Err.,, v.

GEORGE F. DREW.

(See S. C. Reporter's ed. 93-100.)

Equitable pleas in ejectment — defense against patent for land.

Noie. — As to pre-emption rights — see note to United States v. Fitzgerald, 10 : 785.

That patents for land may he set aside for- fraud, — see note to Miller v. Kerr. 5 : 381.

As to errors in surveys and descriptions in patents fur lands; how construed, — see note to» Watts v. Lindsey, 5 : 423.

171 U. S.

Johnson v. Drew.

94-96

Trent Is immaterial, when the defendant could give evidence of all matters of defense set u; in the equitable pleas under the plea of no: guilty filed by him.

land, duly issued by the United States upon an entry made at a local land office, on tht ground that he was in actual possession ol the land at the time of the issue of the patent.

[No. 239.]

Submitted April 28, 189S. Decided May 31 1S9S.

IN ERROR to the Supreme Court of the State of Florida to review a judgment of that court affirming the judgment of the Circuit Court of that state in an action of ejectment brought by George F. Drew, plaintiff, against James Johnson, to recover possession of a tract of land, the judgment being for plain¬ tiff. Affirmed.

Statement by Mr. Justice Brewer;

In September, 1886, defendant in error commenced an action of ejectment in the cir¬ cuit court of the state of Florida, for the county of Hillsborough to recover possession of a tract of land described as follows:

“Lot eight (8) of section nineteen (19), township twenty- nine (29) south, of range nineteen (19) east, and lot seven (7) of sec¬ tion twenty-four ( 24 ) , in township twenty- nine (29) south, of range eighteen (18) east, containing about forty and nineteen one- hundredths (40.19) acres.”

The defendant, now plaintiff in error, filed a plea of not guilty and also a plea based on equitable grounds. A demurrer to this lat¬ ter plea was sustained, and thereupon the defendant asked leave to file an amended equitable plea. This application was denied, the court holding that the grounds of defense set up therein were not sufficient. That plea alleged in substance that the plaintiff’s title rested on a patent from the United States, is¬ sued on a location of Valentine scrip; that such scrip was, by the terms of the statute under which it was issued, to be located only upon unoccupied and unappropriated lands of the United States; that the land in con¬ troversy was, at the time of the location of the scrip, a part of Fort Brooke military res¬ ervation, and was also in the actual occu¬ pancy of the defendant. The case came on for trial in September, 1889, and the defend¬ ant offered evidence in support of all of his defenses, including therein the matters set up in the equitable plea which he had been refused leave to file. This testimony was held insufficient by the court, and the trial resulted in a verd'ict and judgment for the plaintiff, which judgment was thereafter, and in June, 1894, affirmed by the supreme court of the state; whereupon the defendant sued out this writ of error.

The Valentine scrip act was passed April

5, 1872 ( 17 Stat.at L. 649 ) , chap. 89, *and au¬ thorized the location of such scrip on “the unoccupied and unappropriated public lands of the United States, not mineral, and in tracts not less than the subdivisions provided

171 U. S.

'or in the United States land laws.” The latent to the plaintiff' was issued September

1SS2, and recited that it was upon a loca¬ tion of Valentine scrip, and in his equitable Jea defendant averred that the patent was predicated upon an entry at the local land of¬ fice of the United States at Gainesville, Florida. On August 18, 1856, Congress passed an act (11 Stat. at L. 87, chap. 129) 'ontaining this provision:

“That all public lands heretofore reserved for military purposes in the state of Florida, which said lands in the opinion of the Secre¬ tary of War, are no longer useful or desired for such purposes, or so much thereof as said Secretary may designate, shall be, and are hereby,, placed under the control of the General Land Office, to be disposed of and sold in the same manner and under the same regulations as other public lands of the United States: Provided, That said lands shall not be so placed under the control of said General Land Office until said opinion of the Secretary of W ar, giving his consent, communicated to the Secretary of the In¬ terior in writing, shall be filed and recorded.”

At that time there was in existence what was known as the Fort Brooke military res¬ ervation, near Ihe town of Tampa. Florida.

As appears from the testimony offered by the defendant, on July 24, 1860, the Secretary of War wrote to the Secretary of the Interior as follows:

War Department, July 24. I860.

Sir: Referi'ing to the correspondence be¬ tween the two departments on the subject,

I have the honor to inclose to you a report of the quarter-master general showing that Fort Brooke is now in readiness to be turned over to the Department of the Interior, in pursuance of the arrangements made to that effect.

Very respectfully, your obedient, servant,

John B. Floyd, Secretaiy of War.

Hon. J. Thompson, Secretary of the In¬ terior.

*The inclosed report from thequartermaster [06] general stated that all the movable property of the government had been sold, and that there was no reason why the military reser¬ vation should not be turned over to the In¬ terior Department. Probably the exigencies of the war, which soon thereafter commenced, prevented any further action by either de¬ partment, for on April 6, 1870, the following communication was sent by the Secretary ol War to the Secretary of the Interior:

Wax Department, Washington City,

April 6, 1870.

The Honorable Secretary of the Interior.

Sir: I have the honor to reply to a letter addressed to this department by the Commis¬ sioner of the General Land Office on the 26th ultimo relative to the public lands occupied by this department for military purposes at Fort Brooke, Florida, and to inform you that there is no longer any objection to their

89

96-99 Supreme Court of

disposition by the General Land Office under the laws governing the subject.

Very respectfully, your obedient servant, Wm. W. Belknap, Secretary of War.

From the date of this last communication up to 1S77 the record discloses no action by either department, but in January, 1877, the Secretary of War requested that a military reservation at Fort Brooke be declared and set apart by the executive. Subsequently, and on May 29, 1878, the Secretary of War addressed a communication to the President, as follows:

War Department, Washington City,

May 29, 1878.

To the President.

Sir: In accordance with recommendation of commanding general department of the south, concurred in by division commanders, I have the honor to request that a military reservation at the post of Fort Brooke, Tampa, Florida, with boundaries as herein¬ after described, may be duly declared and set apart by the executive in lieu of the lands at that post reserved by executive order dated January 22, 1887, to wit: Beginning at the intersection of the line which bounds the

town *of Tampa on the south with the Hills¬ borough river, running thence along said line which bounds the town of Tampa on the south, and in prolongation thereof north 68 degrees 45 minutes east 2,976 feet; thence north 4 degrees 28 minutes west 2,342 feet; thence north 38 degrees east 1,052 feet;

thence south 52 degrees east 459.2 feet;

thence south 38 degrees west 1,052 feet;

thence south 4 degrees 28 minutes east 1,931

feet; thence south 5 degrees 29 minutes east 2,007.2 feet to the Hillsborough bay; thence westerly along the shore of Hillsborough bay and the shore of Hillsborough river to the place of beginning, containing 155 and one half acres, more or less. A plat of the reser¬ vation and report and notes and survey by Lieutenant James C. Bush, 5th artillery, are inclosed herewith.

I have the honor to be, sir, with great respect, your obedient servant,

Geo. W. McCrary, Secretary of War.

This request was approved and the reser¬ vation was made and declared accordingly. The plat, notes, and survey referred to in this letter were not introduced in evidence, so that the exact boundaries of the reservation then ordered were not distinctly shown, nor can it be determined from the description in the letter alone whether it included the lands in controversy. In March, 1S83, this last reservation was abandoned, and the land again turned over to the Interior Depart¬ ment. Defendant also offered a diagram, certified by the Commissioner of the Land Office, of sections IS and 19 of township 29, range 19, and section 24 of township 29, range 18, which, as the record recites, “shows the contiguity of the land in question to that portion of the Fort Brooke military reserva- SO

the United States. Oct. Term,

tion last relinquished by the Secretary of War to the Secretary of the Interior.” The diagram is not very definite, and it is diffi¬ cult to determine therefrom the boundaries of either the earlier or later Tort Brooke military reservation. The defendant also of¬ fered evidence tending td show that he en¬ tered into occupation of the tract in contro¬ versy in 1871, and had continued in occu¬ pancy ever since.

*Mf. Samuel Y. Finley for plaintiff in r9Sl error. L 1

Messrs. C. M. Cooper and J. C. Cooper

for defendant in error.

Mr. Justice Brewer delivered the opinion of the court:

lhe ruling of the trial court in sustaining the demurrer to the first equitable plea and refusing leave to permit the second to be filed presents no question for the consideration of this court, for it was held by ue supreme court of the state that under the plea of not guilty all the matters of defense set up in these equitable pleas could be offered in evi¬ dence and made available; and, in fact, the defendant on the trial did offer his testimony to establish them. So, the substantial rights of the defendant were not prejudiced, and the ruling involved merely a question of state practice.

We pass, therefore, to a consideration of the merits of the case: Was the land with¬ in the limits of any military reservation at the time that it was patented? The supreme court of the state said in respect to this mat¬ ter:

“There is doubt whether the documentary evidence offered by the defendant shows that the particular lots of land described in the declaration were embraced in the Fort Brooke reservation when the patent was issued.”

It is clear to us that they were not. The description of the reservation asked for in the letter of May 29. 1878, from the Secretary of War to the President, is not of itself suffi¬ cient to show whether tne land was within or without the limits of such reservation. The plat, notes and survey were not in evidence.

But the record recites that the diagram, cer¬ tified by the Commissioner of the Land Of¬ fice, “shows the contiguity of the land in question.” If contiguous it was not within, and while the diagram is unsatisfactory, yet it tends to support this statement of the rec¬ ord. Again, the testimony of the defendant is that he entered into possession of this land in 1871, which was before the reservation was established, and’eontinued insuch possession

until after the restoration in 1883, and this1 is in accord with the averments in the equit¬ able plea. This also indicates tnat the land was not included in any government reser¬ vation. Further and finally, the plat on file in the General Land Office, and a part of the public records, puts the question at rest and locates the land outside the reservation. Hence, as shown by the testimony and by the public records, this land ever since 1870 has been part of tne public lands of the United

171 U. S.

Tinsley v. Anderson.

States, and subject to disposal in accordance with the general land laws. It was unappro¬ priated land within the meaning of the act of

It being so a part of the public domain, subject to administration by the land depart¬ ment and to disposal in the ordinary way, the question arises whether a party can de¬ fend against a patent duly issued therefor upon an entry made in the local land office on the ground that he was in actual possession of the land at the time of the issue of the patent? We are of opinion that he cannot. It appears from the testimony that the de¬ fendant, although in occupation of this land, as he says, from 1871, never attempted to make any entry in the local land office, never took any steps to secure a title, and in fact did nothing until after the issue of a patent, when he began to make inquiry as to his supposed rights. But whether a party was or was not in possession of a particular tract at a given time is a question of fact, depend¬ ing upon parol testimony; and if there is any one thing respecting the administration of the public lands wnieh must be considered as settled by repeated adjudications of this court, it is that the decision of the land de¬ partment upon mere questions of fact is, in the absence of fraud or deceit, conclusive, and such questions cannot, thereafter be re¬ litigated in the courts. The law in reference to this matter was summed up in the case of Burfenning v. Chicago, St. Paul, M. & 0. Rail¬ way Co. 1 03 U. S. 321, 323 [41: 175, 176], as follows :

It has undoubtedly been affirmed over and over again that in the administration of the public land system of the United States questions of fact are for the consideration and judgment of the land department, and that its judgment thereon is final. Whether. lOOJfor instance, a certain tract is swamp Hand ci not, saline land or not, mineral land or not, presents a question of fact not resting on rec¬ ord, dependent on oral testimony; and it cannot be doubted that the decision of the land department, one way or the other, in reference to those questions, is conclusive and not open to relitigation in the courts, except in those cases of fraud, etc., which permit any determination to be re-examined. John¬ son v. Towsley, 13 Wall. 72 [20:485]; St. Jjouis Smelting & Ref. Company v. Kemp, 104 U. S. 03G [26: 875]; Steel v. St. Louis Smelting & Ref. Company, 106 U. S. 417 [27 : 226] ; Wright v. Roscberry, 121 U. S. 488 [30: 1039] ; Heath v. Wallace, 138 U. 573 [34: 1003] ^McCormick v. Bayes, 159 U. S. 332 [40:171].

“But it is also equally true that when by act of Congress a tract of land has been re¬ served from homestead and pre-emption, or dedicated to any special purpose, proceedings in the land department in defiance of sueh reservation or dedication, although culminat¬ ing in a patent, transfer no title and may be challenged in an action at law. In other words, the action of the land department cannot override the expressed will of Con¬ gress, or convey away public lands in disre-

171 U. S.

99- 101

gard or defiance thereof. St. Louis Smelting d- Ref. Company v. Kemp , 104 U. S. 636, 646 [26: 875,879]; Wright v. Roseberry, 121 U. S. 48S, 519 [30: 1039, 104S] ; Doolan v. Carr, 125 U. S. 618 [31:844]; Davis’s Admr. v. Weibbold, 139 U. S. 507, 529 [35: 238, 246] ; Knight v. United States Land Asso. 142 IT. S. 161 [35: 974].

Reference is made in the brief to the act of Congress of July 5, 1884 (23 Stat. at L. 103, chap. 214) concerning the disposal of abandoned and useless military reservations. But obviously that statute can have no sig¬ nificance in this case, for the patent had is¬ sued and the title passed from the govern¬ ment prior to its enactment. We see no rea¬ son to doubt that upon the facts in this case the judgment of the Supreme Court of Flori¬ da was right, and it is therefore affirmed.