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the registrar and the plaintiff in error had | be concluded by it. On being notified that prayed an appeal "in both effects,"-i. e., for a review of the order and a stay of proceedings, but was refused an appeal in the latter aspect, from which refusal he also appealed, and this was the attitude of the case at the time of the alleged purchase by Roig on September 11, 1894. On November 17, 1894, the audiencia considered the application of Sixto for the enlargement of the appeal, and held that such allowance was wrongfully denied in the lower court, and ordered that the appeal be "considered as having been taken for both effects." On the 8th of January, 1895, Sarria was notified of this order, and appeared and asked that a clear and detailed statement be given him "as to what he has to comply with." Thereupon a new explanatory order was directed to Sarria, informing him that the previous requisition meant the ratification of the one previously directed to him by the court, "in order that the sums which he owed from that time to Mr. Manuel Sixto should not be delivered by him except to the court in order to deposit the same in the royal treasury." This order was duly served on Sarria on February 5, 1895.
On November 29, 1895, the audiencia heard the appeal, and, reversing the order of August 30, declared the order of June 2, 1894, in full force, whereby the cautionary entry was ordered to be made by the registrar of property, and the notification ordered to Sarria to hold the payments on the mortgage, or pay the same into the treasury, to abide the order of the court.
the order of June 2, 1894, was in full force, requiring him to hold the funds, while Sarria says he is unable to accept the notification, he declares "he will appear before the audiencia in the premises." Instead of so doing, unless the appearance in the Roig case can be so considered, he made application in the court of first instance for a release of the deposited instalment in order to pay it to Roig, and that court made the order, although it had been notified of the decision of the audiencia of November 29, 1895. This order could have no effect on the rights of the plaintiff in error, nor can it protect Sarria, who acted in the face of knowledge of the decision of the higher court, instead of appearing in that court at the suit of Sixto, and having the rights of Roig and the contesting heirs determined. We conclude that the plaintiff in error had the right to recover his share of the third and fourth instalments, notwithstanding the alleged transfers and payments to Roig, and the alleged decree of the audiencia in a proceeding to which Sixto was not a party. For error in the court's charge as to the second, third, and fourth instalments, the judgment will be reversed, and the cause remanded for further proceedings consistent with this opinion.
(196 U. S. 100)
SALLIE FIELD SCOTT, Eliza Madison
R. Gunby, et al.
Public lands-pre-emption rights-land appropriated for military post.
The registrar refused to comply, assign- LIZZIE W. CAREW, W. W. Hampton, E. ing as a reason that the encumbrance had been assigned to third parties, and that the mortgage law did not justify such an order. Subsequent proceedings resulted in the final decree of the military court deciding the merits of the controversy in favor of Sixto. The decision of November 29, 1895, was also notified to Sarria, and on May 4, 1896, the entry of the court discloses:
The right of pre-emption given by the act of
"On May 4, 1896, appeared Mr. Laureano Sarria y Gonzalez and stated: That, having received notice that the instalment of the mortgage had been transferred to Mr. Argued November 7, 8, 1904. Decided Janu
Antonio Roig, who has recorded said transfer in the registry of property, and supposing that he will proceed to collect the same judicially, as he did the previous instalment, he is unable to accept the notification, and he will appear before the audiencia in the premises."
Over the objection of the plaintiff in error, Sarria was permitted to testify that he paid the instalment to Roig by order of the audiencia. But the plaintiff in error was not a party to such proceeding, if it had been legally proved, and of course could not 25 S. C.-13.
ary 3, 1905.
PPEAL from the United States Circuit
Court of Appeals for the Fifth Circuit
to review a decree which affirmed a decree of the Circuit Court for the Southern District of Florida sustaining a demurrer to, and dismissing, a bill to establish a trust in real property. Affirmed.
See same case below, 56 C. C. A. 684, 121 Fed. 1021.
Statement by Mr. Justice Brewer:
are now appellants, filed their bill of com- | in the year 1835, although the public surplaint in the circuit court of the United veys had not been extended into this part States for the southern district of Florida, of Florida, Hackley filed with the register praying a decree that the defendants, hold- of the land office evidence designating the ing the legal title to a tract of land under particular tract which had been settled patent from the United States, be decreed upon, inhabited, and cultivated by him as to hold that title in trust for them. A de- aforesaid, and claimed the right of premurrer to the bill was sustained, and a emption and purchase thereof under and by decree of dismissal entered. This was af- virtue of the act of Congress of April 22, firmed by the circuit court of appeals for 1826 [4 Stat. at L. 154, chap. 28]. By the fifth circuit, and from that affirmance change of the boundary lines of the land this appeal was taken. districts of Florida the land subsequently The averments in the bill are: The plain- came within the jurisdiction of the land tiffs are the sole descendants and heirs at office at Newnansville, Florida, whereupon, law of Robert J. Hackley, who died in 1845. on November 27, 1843, Hackley secured In November, 1823, Hackley, then Hackley, then over from the register of the land office at St. twenty-one years of age, and the head of a Augustine a copy of the evidence formerly family, settled upon and cultivated the tract filed in that office, and filed it with a notice in controversy. At that time the surround- of his claim with the register of the office ing country was a dense wilderness, and he at Newnansville. On September 26, 1887, the only settler. He erected on the tract a the administrator of the estate of Hackley substantial dwelling and other buildings. filed in the local land office a supplemental In 1824 Colonel Brooke, with a detachment notice of the claim of the legal representaof United States troops, was sent to this tives of Hackley to the right of pre-emption portion of Florida, located a camp or can- in the purchase of the tract. Other parties tonment on this tract, dispossessed Hackley, made application to the Land Department and took possession of the house and land for an entry of said lands, contest proceedso occupied and cultivated by him. The ings were had, which were terminated by a Secretary of the Interior, in the contest pro- decision of the Secretary of the Interior adceedings hereinafter referred to, in an opin- verse to the claim of the plaintiffs, and a ion which is attached to the bill as an ex- patent was issued to Edmund S. Carew, unhibit, found that this action was taken by der whom the defendants claim. order of the War Department. United States troops continued to occupy the camp or cantonment until December 10, 1830, when by an executive order of the President the Fort Brooke military reservation was established, containing 16 square miles of land, and embracing the tract in controversy. Thereafter this military reservation was reduced from time to time by executive orders, until, on June 1, 1878, only the tract in controversy, commonly known as the "Reduced Fort Brooke military reservation," remained. On January 4, 1883, it was relinquished, and transferred by the Secretary of War to the Interior Department. Hackley, after his removal from the tract, remained a resident of Florida up to the time of his death. On March 3, 1823, Congress passed an act [3 Stat. at L. 754, chap. 29] authorizing the President to establish a land office in each of the districts of east and west Florida as soon as, in his opinion, there was a sufficient quantity of public land surveyed to justify it. Under this act, and by an executive order in 1828, a land office was established at St. Augustine, in the district in which this land was situate. At the time this office was established the hostility of the Indian tribes was such as to render communication between it and that portion of Florida where Hackley resided practically impossible. But
The following statutes are relied upon by the parties: Act of Congress, March 3, 1807 (2 Stat. at L. 445, chap. 46), § 1 of which provides:
"That, if any person or persons shall, after the passing of this act, take possession of, or make a settlement on, any lands ceded or secured to the United States, by any treaty made with a foreign nation, or by a cession from any state to the United States, which lands shall not have been previously sold, ceded, or leased by the United States, or the claim to which lands, by such person or persons, shall not have been previously recognized and confirmed by the United States; or if any person or persons shall cause such lands to be thus occupied, taken possession of, or settled; or shall survey, or attempt to survey, or cause to be surveyed, any such lands; or designate any boundaries thereon, by marking trees or' otherwise, until thereto duly authorized by law,-such offender, or offenders, shall forfeit all his or their right, title, and claim, if any he hath, or they have, of whatsoever nature or kind the same shall or may be, to the lands aforesaid, which he or they shall have taken possession of, or settled, or cause to be occupied, taken possession of, or settled, or which he or they shall have surveyed, or attempted to survey, or cause to be surveyed, or the boundaries thereof he or
they shall have designated, or cause to be designated, by marking trees or otherwise. And it shall, moreover, be lawful for the President of the United States to direct the marshal, or officer acting as marshal, in the manner hereinafter directed, and also to take such other measures, and to employ such military force, as he may judge necessary and proper, to remove from lands ceded, or secured to the United States, by treaty, or cession as aforesaid, any person or persons who shall hereafter take possession of the same, or make, or attempt to make, a settlement thereon, until thereunto authorized by law. And every right, title, or claim, forfeited under this act, shall be taken and deemed to be vested in the United States, without any other or further proceedings."
receiver of public moneys of the land office, that any person, who has delivered his notice of claim, is entitled, according to the provisions of this act, to a preference in becoming the purchaser of a quarter section of land, such person so entitled shall have a right to enter the same with the register of the land office, on producing his receipt from the receiver of public moneys for at least one-twentieth part of the purchase money, as in case of other public lands sold at private sale: Provided, That all lands to be sold under this act shall be entered with the register, at least two weeks before the time of the commencement of the public sales, in the district wherein the land lies; and every person having a right of preference in becoming the purchaser of a tract of land, who shall fail so to make his entry
The other sections have no application to with the register within the time prescribed, this case.
On February 5, 1813 (2 Stat. at L. 797, chap. 20), the following act was passed: "That every person, or legal representative of every person, who has actually inhabited and cultivated a tract of land lying in either of the districts established for the sale of public lands, in the Illinois territory, which tract is not rightfully claimed by any other person, and who shall not have removed from said territory; every such person and his legal representatives shall be entitled to a preference in becoming the purchaser from the United States of such tract of land at private sale, at the same price and on the same terms and conditions in every respect as are or may be provided by law for the sale of other lands sold at private sale in said territory, at the time of making such purchase: Provided, That no more than one-quarter section of land shall be sold to any one individual, in virtue of this act; and the same shall be bounded by the sectional and divisional lines run, or to be run, under the direction of the surveyor general for the division of the public lands: Provided also, That no lands reserved from sale by former acts, or lands which have been directed to be sold in town lots, and out lots, shall be sold under this act.
"Sec. 2. And be it further enacted, That every person claiming a preference in becoming the purchaser of a tract of land, in virtue of this act, shall make known his claim, by delivering a notice in writing to the register of the land office, for the district in which the land may lie, wherein he shall particularly designate the quarter section he claims; which notice the register shall file in his office, on receiving twentyfive cents from the person delivering the same. And in every case where it shall appear to the satisfaction of the register and
his right shall be forfeited, and the land by him claimed shall be offered at public sale, with the other public lands in the district to which it belongs."
And on April 22, 1826 (4 Stat. at L. 154, chap. 28), Congress passed another act, the 1st section of which reads as follows:
"That every person, or the legal representatives of any person, who, being either the head of a family, or twenty-one years of age, did on or before the first day of January, in the year one thousand eight hundred and twenty-five, actually inhabit and cultivate a tract of land situated in the territory of Florida, which tract is not rightfully claimed by any other person, and who shall not have removed from the said territory, shall be entitled to the right of pre-emption in the purchase thereof, under the same terms, restrictions, conditions, provisions, and regulations, in every respect, as are directed by the act, entitled 'An Act Giving the Right of Pre-emption, in the Purchase of Lands, to Certain Settlers in the Illinois Territory,' passed February the fifth, one thousand eight hundred and thirteen: Provided, That no person shall be entitled to the provisions of this section who claims any tract of land in said territory, by virtue of a confirmation of the commissioners, or by virtue of any act of Congress."
Messrs. Henry W. Anderson, Francis P. Fleming, William H. Lamar, George H. Lamar, Francis P. Fleming, Jr., Beverley B. Mumford, Eppa Hunton, Jr., and E. Ran dolph Williams for appellants.
Messrs. William Wade Hampton, Edward R. Gunby, and Horatio Bisbee for appellees.
Mr. Justice Brewer delivered the opinion of the court:
The vital question in this case is whether
Hackley could claim the benefit of the act
"That no entry or sale of any land shall be made, under the provisions of this act, which shall have been reserved for the use of the United States, or either of the several states in which any of the public lands may be situated," or "which is reserved from sale by act of Congress, or by order of the President, or which may have been appropriated for any purpose whatsoever."
that of the President, saying (p. 513, L ed. p. 271):
"Now, although the immediate agent, in requiring this reservation, was the Secretary of War, yet we feel justified in presuming that it was done by the approbation and direction of the President. The President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties. Both military posts and Indian affairs, including agencies, belong to the War Department. Hence we consider the act of the War Department in requir ing this reservation to be made, as being, in legal contemplation, the act of the President; and, consequently, that the reservation thus made was in legal effect a reservation made by order of the President, within the terms of the act of Congress."
And, going beyond the special language of the act in respect to the sale of lands, the court observed:
"But we go further, and say that, whensoever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands, and that no subsequent law, or proclamation, or sale would be construed to embrace it, or to operate upon it, although no reservation were made of it.
"The very act which we are now considering will furnish an illustration of this proposition. Thus, in that act there is expressly reserved from sale the land within that district, which had been granted to individuals and the state of Illinois. Now, suppose this reservation had not been made, either in the law, proclamation, or sale, could it be conceived that, if that land were sold at auction, the title of the purchaser would avail against the individuals or state to whom the previous grants had been made? If, as we suppose, this question must be answered in the negative, the same principle will apply to any land which, by authority of law, shall have been severed from the general mass."
In Leavenworth, L. & G. R. Co. v. United States, 92 U. S. 733, 745, 23 L. ed. 634, 639, the doctrine announced in Wilcox v. Jackson, 13 Pet. 498, 10 L. ed. 264, was reaffirmed; the court, quoting the first paragraph in the last quotation, added: "It may be urged that it was not necessary in deciding that case to pass upon the quesIt appeared that at the request of the tion; but, however this may be, the prinSecretary of War the Commissioner of the ciple asserted is sound and reasonable, and General Land Office had marked upon the we accept it as a rule of construction." In official map of that Department the tract in that case it was held that a grant of pubcontroversy as reserved for military pur- lic lands in aid of a railroad did not apply poses, and directed it to be withheld from to lands included within an Indian reservasale. The court held that this action was' tion, and that it was immaterial that the
reservation was afterwards set aside, and thereto. Nor is there any conflict in Unitthe lands had become a part of the public lands of the nation. Newhall v. Sanger, 92 U. S. 761, 23 L. ed. 769, ruled that lands within the boundaries of an alleged Mexican or Spanish grant which was sub judice at the time the Secretary of the Interior ordered a withdrawal of lands along the route of the road, were not embraced by a grant to a railroad company, and it was said in the opinion (p. 763, L. ed. p. 770): "The words 'public lands' are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws."
In Shively v. Bowlby, 152 U. S. 1, 38 L. ed. 331, 14 Sup. Ct. Rep. 548, it was held that, while Congress has power to grant lands below high-water mark in navigable waters, yet the fact that the public surveys are made to terminate on the banks or shores of those waters, indicates that such lands are not subject to entry and sale under the general land laws, but, so far as they are situated in a territory, are reserved for the use and control of the future state. This doctrine was
reaffirmed in Mann v. Tacoma Land Co. 153 U. S. 273, 38 L. ed. 714, 14 Sup. Ct. Rep. 820. Many authorities might be cited to the proposition that a prior appropriation is always understood to except lands from the scope of a subsequent grant, although no reference is made in the latter to the former. See Lake Superior Ship Canal, R. & Iron Co. v. Cunningham, 155 U. S. 354, 373, 39 L. ed. 183, 189, 15 Sup. Ct. Rep. 103.
ed States v. Tichenor, 8 Sawy. 142, 12 Fed. 415. There it appeared that the commanding officer of United States troops in Oregon ordered that a military reservation be established on the tract in controversy. In obedience thereto, a lieutenant erected some buildings thereon for the use of the soldiers. It was held by the circuit court that such action constituted no appropriation of the land so as to exempt it from the operation of the general land laws. But the ground of the decision was that the general commanding was acting without any direction from the President or the War Department, the court saying (p. 151, Fed. p.
Wilcox v. Jackson, 13 Pet. 513, 10 L. ed. "It may be admitted, as suggested in 271, that, if the order directing the reservation to be made had been issued by the Secretary of War,—the head of the Department through whom the President would speak and act upon the subject,—in the absence of evidence to the contrary, it would be presumed that he acted by the direction of the President.
"But neither General Hitchcock nor Lieunate or establish a reservation at Port Ortenant Wyman had any authority to desigford for any purpose. It is not alleged that they were acting in the premises under the authority of the President, and there is no presumption of law that they were."
Again, it is urged that the establishment of this camp or cantonment was a mere temporary matter, and not to be considered as in the nature of a reservation or appropriation, and we are referred to orders and other papers found in the records of the War Department, copies of which appear in the brief of appellants' counsel. Those orders, if we are permitted to con
tant General's office:
There is nothing in United States v. Fitzgerald, 15 Pet. 407, 10 L. ed. 785, to conflict with the foregoing views. It merely decided that an officer of the United States (in that case an inspector of customs) was not deprived by any act of Congress of the benefit of the pre-emption laws, sider them on this demurrer, make disand the fact that he was put in possession of a tract of land by the collector of cus-tinctly against the contentions of counsel. toms, who had received no instructions to We quote from that issued from the Adjuthat effect from the Treasury Department, was not an appropriation to the uses of the government. It is true a letter from the acting commissioner of the General Land Office to the register at New Orleans, stating that the Secretary of the Treasury had directed that the tract be reserved from sale for the use of the custom house at New Orleans, and requesting the register to note upon his plats that it was so reserved from sale, was in evidence, but this was written two years after the inspector had entered and paid for the land. Of course, such attempted reservation could have no effect upon a title acquired by the entryman prior
Brevet Col. Brooke, with four companies of the Fourth Infantry, will proceed with as little delay as practicable to Tampa bay, east Florida, where he will establish a military post. He will select a position with a view to the health and in reference to the Florida Indians about to be removed to that vicinity agreeable to the late treaty. Upon this point he will consult Col. Gadsden, the commissioner employed in locating the Indians.
The permanent headquarters of the