Argument for Appellant.

195 U. S.

and prayed that the relief asked for might be granted. On March 4, 1901, the United States filed a supplemental bill, wherein it was stated that no service had ever been made upon Thompson or Ericksrud, and that on June 24, 1899, the heirs of Ericksrud had joined in a deed conveying the land in question to Louis K. Woodwick. Process was prayed against the defendants, the heirs of Ericksrud, and also against Woodwick, and subpoenas were served on them, and on May 2, 1901, they answered the supplemental bill. A special examiner was appointed to take testimony, and on January 13, 1902, he submitted his report of the testimony taken in the suit, to the court.

Mr. Assistant Attorney General Purdy for the United States, appellant:

When the Government is a mere formal complainant in a suit, not for the purpose of asserting any legal right or protecting any public interest, title or property, but merely to form a conduit through which one private person can conduct litigation against another private person, a court of equity will not be restrained from administering the equities existing between the real parties by any exemption of the Government designed for the protection of the United States alone. United States v. Beebe, 127 U. S. 338.

The court below failed to give the proper effect to the act of March 3, 1887, 24 Stat. 556. As to this statute, see United States v. Winona &c. R. R. Co., 67 Fed. Rep. 969; Ore. & Cal. R. R. Co. v. United States, 189 U. S. 103. If there were any laches they were laches of officers of the United States and not of Donovan. Kelly v. Boettcher, 85 Fed. Rep. 55, 62.

The lands in the indemnity limits of the grant were not withdrawn from market on September 10, 1866, and the cancelation of Barkley's entry on January 14, 1868, restored the 80-acre tract in controversy to market, and subject to entry by the first legal applicant. Where a tract of land in the place or granted limits is subject to a homestead or pre

195 U.S.

Argument for Appellant.

emption claim at the date of the grant, it is 'thereby forever

Bardon v. Northern Pacific Rail-
Where land along the indemnity

excepted from the grant: road Co., 145 U. S. 535. limits of a railroad grant is subject to a homestead or preemption claim at the time of the grant, which claim is afterward canceled, the land then becomes subject to selection by the railroad company or any other legal applicant. Rijan v. Railroad Co., 99 U. S. 382; Wisconsin Central R. R. Co. v. Price County, 133 U. S. 496, 511; Hewitt v. Schultz, 180 U. S. 139.

Where Congress provides for the withdrawal of lands from market, any withdrawal contrary to such provisions is absolutely void. Northern Pacific v. Davis, 19 Land Decisions, 87; Atl. & Pac. R. R. Co., 6 Land Decisions, 84, 87; St. P., Minn. & Man. Ry. Co. v. Iverson, 14 Land Decisions, 79.

Where a homestead or preëmption claim has attached to land, such land is thereby segregated from the public domain, and for the time being is withdrawn from the jurisdiction of the Secretary of the Interior and the Land Department, and so continues until the entry is canceled. So. Pac. Railway Co. v. Bell, 183 U. S. 675; Ore. & Cal. R. R. Co. v. United States, 189 U. S. 103.

Donovan's application to the local land office to enter the land was, under the facts in the case, equivalent to a legal entry.

Where a party applies to enter, under the homestead or preëmption laws of the United States, a tract of land which is subject to be so taken, and he is qualified to thus acquire the same, and his application is erroneously rejected by the Government officials, his right thereto attaches just the same as though his application had been allowed; and if he continues in possession and complies with the law so as to be entitled to a patent, he acquires a vested interest of which he cannot be deprived even by an act of Congress. Shepley v. Cowan, 91 U. S. 330; Ard v. Brandon, 156 U. S. 537, and cases cited; Weeks v. Bridgman, 159 U. S. 541; Turpey v.

Argument for Appellant.

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Madsen, 178 U. S. 215; Goodale v. Olney, 12 Land Dec. 324; Coder v. Lotridge, 12 Land Dec. 643.

As Donovan had complied with all the requirements of the law, including payment for the land, to entitle him to a certificate and patent for the same, he thereby acquired a vested interest in the land of which he could not be deprived by any act of Congress. Gonzales v. French, 164 U. S. 338, 346.

Where a party has paid for the land and has complied with the law for the acquisition of the same he thereby becomes the absolute owner, and may deal with the same as his own, and the same is subject to taxation, although he may not have received his patent therefor. In such case the Government merely holds the legal title in trust for him. Carroll v. Safford, 3 How. 441; Astrom v. Hammond, 3 McLean, 198; Carroll v. Perry, 4 McLean, 26; Ross v. Supervisors &c.,"12 Wisconsin, 38; People v. Shearer, 30 California, 645; Newkirk v. Marshall, 10 Pac. Rep. (Kan.) 571; Hawley v. Diller, 178 U. S. 476.

Donovan's entry and occupation of the lands in controversy and cultivation of the same up to 1871, with the purpose of entering the same as his homestead, had the legal effect of so withdrawing such lands that the officers of the Land Department had no authority to issue a certification to the State of Minnesota, and their acts in so doing with respect to this tract of land were void. Doolan v. Carr, 125 U. S. 618, 624, and cases cited.

A patent is but evidence of a grant, and the officer who issues the same acts ministerially and not judicially. United States v. Stone, 69 U. S. 525; Hawley v. Diller, 178 U. S. 476; Newkirk v. Marshall, 10 Pac. Rep. 571.; Burr v. Greeley, 52 Fed. Rep. 926; Weeks v. Bridgman, 159 U. S. 541; Gertgens v. O'Connor, 191 U. S. 237.

As to who is a bona fide purchaser under the acts of 1887 and 1896, see United States v. Winona &c. R. R. Co., 165 U. S. 463, 478; Colo. Coal & I. Co. v. United States, 123 U. S. 307, 313; Murray v. Ballou, 1 Johns. 565, and cases supra.

Mr. Burton Hanson and Mr. W. H. Norris for railway comcompany, appellee:

Mr. Andrew C. Dunn for Woodwick and others, appellees: The railway company has no proper relation to this suit; and no relation to the relief sought; it has no relation to the suit, except as having been mistakenly made defendant, and as having been as mistakenly joined in answer, as if properly impleaded.

The bill relates solely to one parcel of indemnity land and the cases cited as to the withdrawal of the Secretary being unauthorized are inapplicable. See Military Reservation, 6 Land. Dec. 18; Woolsey v. Chapman, 101 U. S. 768; Wood v. Beach, 156 U. S. 548; Dunmeyer Case, 113 U. S. 629: Winona & St. Peters' Case, 165 U. S. 463, 473.

Donovan's attempted entry was illegal. Bullard v. Des Moines &c., 122 U. S. 167; St. P. & P. v. Nor. Pac., 139 U. S. 1, 18; United States v. Holmes, 105 Fed. Rep. 41.

Even where the entryman goes on the public land in good faith this fact would not justify ignoring the clear rights of the railroad company under the land grant act. Nor. Pac. v. Amacker, 175 U. S. 564; The Whitney Case, 132 U. S. 364; Norton v. Evans, 82 Fed. Rep. 804; Wagstaff v. Collins, 97 Fed. Rep. 3.

The cancelation of the Barkley entry immediately made this tract selectable by the railroad company. Ryan v. Railway Co., 99 U. S. 382, 388; United States v. Burlington &c. R. R. Co., 98 U. S. 341; Hahn v. United States, 107 U. S. 402; Brown v. United States, 113 U. S. 568; United States v. Philbrick, 120 U. S. 62; Burr v. Greeley, 52 Fed. Rep. 926; United States v. Railroad Co., 67 Fed. Rep. 948, 954.

As to Woodwick's good faith, see Union Trust Co. v. So. Nav. Co., 130 U. S. 565; Jorgenson v. M. & St. L. Ry. Co., 25 Minnesota, 206; United States v. So. Pac. R. Co., 184 U. S. 49.

Where the United States is a mere formal complainant as a conduit for litigation for a private person it cannot extend

its immunity as a sovereign government to protect such individual. Curtner v. United States, 149 U. S. 662, 674; United States v. Beebe, 127 U. S. 338, 347; United States v. San Jacinto Tin Co., 125 U. S. 273, 284; United States v. Des Moines &c. Co., 142 U. S. 510, 538; United States v. Bell Telephone Co., 167 U. S. 240, 265; Moran v. Horsky, 178 U. S. 205.

The court will administer the equities between Donovan and Woodwick and not permit the United States to protect Donovan and it will look back of the nominal and find the real parties. New York v. Louisiana, 108 U. S. 76.

Donovan, apart from the United States, has been guilty of laches himself. St. P. &c. Ry. Co. v. Sage, 44 Fed. Rep. 315. See Minnesota Statutes, §§ 5134, 5136, 5817, of 1894; ch. 68, March 9, 1874; § 1, ch. 75, Gen. Stat., 1866.

A party by mere settlement upon public lands with intention to obtain title to same under the preemption laws, does not thereby acquire such vested interest in the premises as to deprive Congress of the power to dispose of the property, and notwithstanding the settlement Congress can reserve the lands from sale. Frisbie v. Whitney, 9 Wall. 187; Yosemite Valley Case, 15 Wall. 77, 82.

MR. JUSTICE PECKHAM, after making the foregoing statement of facts, delivered the opinion of the court.

The Attorney General contends that before the passage of the act of Congress granting the land (July 4, 1866) Barclay had made legal entry upon the books of the local land office of the land in question, under the homestead laws of Congress, and that such legal entry was in existence at the time of the passage of the act of Congress of July 4, 1866; that by reason of such entry the land was excepted from the grant under that act, and that when Barclay abandoned his homestead claim upon the land it immediately became public land of the United States, and did not then pass under the grant to the State pursuant to the act of July 4, 1866, and it was