low the case of Reed v. Snowhill solely on these distinctions, lest it be inferred that in a parallel case that case would be followed. The decision of the case at bar, rendered on the original hearing, will not be changed.

GROESBECK, C. J., and POTTER, J., con

cur..

(6 Wyo. 342)

CALDWELL et al. v. BUSH. (Supreme Court of Wyoming. June 30, 1896.) PUBLIC LANDS-ENTRIES-CANCELLATION-NOTICE -WAIVER-AUTHORITY OF COMMISSIONER-EXCLUSIVE POSSESSION EXCLUDING ENTRY FEDERAL STATUTES-CONSTRUCTION,

1. The commissioner of the general land office, after issuance of a final certificate and before issuance of a patent, has authority after hearing, of which the entryman has had due notice, to cancel an entry of public lands allowed by subordinate officials of the department upon fraudulent final proofs.

2. Where plaintiffs claim tit.e as grantees of an entryman's final certificate of purchase, and the reply does not deny allegations of the answer and cross petition that a hearing for cancellation of the entry was had, at which the entryman was present by attorneys, nor contain any allegations to show that the appearance of the entryman was not a general one, it will be presumed that the entryman waived the sufficiency of the notice of the hearing.

3. Act Cong. March 3, 1891, regulating the rights of bona fide purchasers of final certificates of purchase issued to public land entrymen, does not apply to an entry which, prior to the passage of the act, had been canceled by the land department.

4. Where one incloses with his own government land, which he uses only for grazing purposes, and at his invitation a homestead entry is made by another on part of the government lands, and a gate is maintained through which the public are licensed to pass, he has not the exclusive possession of the land which will prevent a valid homestead entry being made on the government land inclosed, not covered by the prior entry, and which has on it no improvements, by one who peaceably enters through the gate under the general license to the public.

Error to district court, Albany county; R. H. Scott, Judge.

Action by Isaac P. Caldwell and another to restrain the defendant, Lewis J. Bush, from repeated and continued trespasses upon a tract of land in Albany county, claimed by plaintiffs under purchase from desert land entryman after final certificate, which was afterwards canceled. Defendant claims under a homestead entry after cancellation of the entry of plaintiffs' grantor. Judgment and decree for defendant below. Plaintiffs bring error. Aflirmed.

Nellis E. Corthell, for plaintiffs in error. John C. Baird, for defendant in error.

GROESBECK, C. J. This was an action brought by the plaintiffs in error in the district court for Albany county to, in effect, restrain the defendant from continuing trespasses upon a tract of 160 acres of land in that county. The plaintiffs claim title under

a final certificate of purchase from the United States issued to one Simon Bales, a oesert land entryman, for lands embracing the lands in controversy, and by conveyance from Bales to plaintiffs. They also claim to be in actual possession of the land in controversy, and that defendant, pretending that the title of plaintiffs has been avoided by the cancellation of the entry of their grantor, Bales, and that he has obtained a right through his homestead filing on said land, is guilty of forcible, repeated, and continuing trespasses upon the land, to the permanent and irreparable injury of the plaintiffs. The defendant, in his answer and cross petition, admits the issuing of the final certificate of purchase to the grantor of plaintiffs, the conveyance by him of the land to the plaintiffs, the assertion of his own claim and his entry upon the land, and that he continues and intends to continue in possession of said land under his homestead entry thereon. He further sets up that after the delivery of the final certificate to Bales the grantor of the plaintiff, the commissioner of the general land office, upon the report of a special agent, held the entry of Bales for cancellation, and, after notice to the entryman, instituted a hearing, upon which certain findings were made by the register and receiver of the United States land office at Cheyenne, Wyo., to the effect that the land had not been irrigated; that the entryman, Bales, did not own a suflicient water right for the purpose of irrigating the tract filed on by him; that the entry was not for his use, but for the use of the plaintiffs; that the land was natural meadow land, and was not subject to entry under the desert land act; and that thereupon the said local land officers decided that the entry was fraudulent and void, and recommended the cancellation thereof. The answer and cross petition further alleges that the said commissioner of the general land office, upon a review of the evidence and findings of the local land officers, approved the same, and canceled the certificate of purchase; and that, after the cancellation of the desert land entry, the defendant, Bush, made a homestead filing on 160 acres included in the desert land entry of Bales, and entered the lands in controversy by virtue of said filing. This pleading further sets up that the hearing before the local land office was made upon the application of Bales, the desert land entryman and his grantees, the plaintiffs herein, who were notified of the time and place of said hearing; that Caldwell, one of the plaintiffs, was present at the time of said hearing, and that Messrs. Lacey & Riner appeared as attorneys for Bales, the original entryman. The reply denies that the application for such hearing was made by the desert land entryman and his grantees; denies notice of the hearing; denies the truth of the findings of the regis ter and receiver of the land office; alleges that the evidence upon which said findings

were made was false and fraudulent, and that the officials of the land office were thereby fraudulently imposed upon, deceived and misled in their conclusions. In support of the petition the reply further alleges an “exclusive," peaceable, and actual possession and occupation of the lands by the plaintiff's and their grantor, and that they have at all times inclosed them with a substantial fence since September 14, 1884, and for that reason the said lands were not subject to entry. Other new matters set up in the reply, as it is termed in the brief, are waived by counsel for plaintiffs in error, as not pertinent to the present inquiry. The case was finally heard upon the pleadings and the evidence by the trial court, and, after its refusal to find specifically certain facts requested by the plaintiffs, it made its findings of fact and conclusions of law thereon, and rendered judgment and decree for the defendant that the plaintiffs take nothing by the action, and that the defendant recover costs. A motion for a new trial was made, and overruled by the court, and the cause is before us on the pleadings and a bill of exceptions containing the evidence.

The plaintiffs in error, who were plaintiffs below, contend that the determination of the case rests upon four propositions, any one of which, if established, is sufficient to maintain the position of the plaintiffs in error, and to warrant a reversal: (1) The commissioner of the general land office has no power to cancel a final certificate of purchase in the sense of judically determining the rights of the holder; (2) the proceedings which resulted in the pretended cancellation of the desert land entry were without jurisdiction for want of notice; (3) that the desert land entry is within the protection of section 7 of the act of congress of March 3, 1891, entitled "An act to repeal timber culture laws and for other purposes" (Supp. Rev. St. U. S. [2d Ed.] p. 943), and therefore beyond the power of the commissioner of the general land office to affect it in any manner; and (4) that the entry of the defendant upon the land in controversy was a forcible intrusion and trespass upon the actual possession and inclosure of the plaintiffs, and that the defendant, by such entry, could not gain any rights whatever in the land in controversy. These propositions will be disposed of in their order.

1. There can be no doubt now, after repeated decisions of the federal courts, followed by the state courts, that the land department is a tribunal established by congress for the purpose of regulating the method of disposing of the public domain open to . entry and settlement. It may decide the rights of conflicting claimants to portions of the public lands, and is also empowered to cancel a fraudulent entry of public lands allowed by the register and receiver of the local land office or other officials of the land department, upon false proofs of settlement, occupancy, and improvement, and undoubt

edly of the reclamation of desert lands, where patent is not issued, and where the legal title to the lands is still in the government. This was decided in an early case, which has been frequently sanctioned in later decisions. Harkness v. Underhill, 1 Black, 316, 325, followed in the recent case of Orchard v. Alexander, 157 U. S. 372, 15 Sup. Ct. 635. The sovereign owner of these lands may prescribe rules for the acquisition of title to any portion of the public domain by its citizens, and for parting with its title thereto, and has so provided by many legislative acts by creating a department to take initial proof of the rights of claimants to the bounty of the government. To secure the title to lands under the desert land laws there must be proof that the land is desert in character, and that it has been reclaimed from such condition. This is as necessary as to make the payment for the lands. It is part of the consideration moving to the government that the land shall be unfit for agriculture in its natural state, and has been reclaimed from its barren condition by irrigation and cultivation. The entryman, when he has fully reclaimed the land, and made final proof thereof to the satisfaction of the land department, is entitled to a patent certificate, as it is conveniently termed. Prior to the delivery of this receipt, the entryman has not a title, but the right to one, upon compliance with the conditions imposed upon him. After its delivery, he has an equitable interest in the lands, the government holding merely the naked legal title as his trustee. This equitable interest may be conveyed to others, who take it with full notice of its character. But the land officials are not concluded by the ex parte final proofs so made. Even after patent is issued the government can institute suit in the courts to set it aside on the ground of fraud in initiating or completing the entry. Before the issuance of the patent, the secretary of the interior may institute an inquiry upon his own motion, where the matter has been called to his attention, to see whether there was fraud in the initial filing or upon the final proofs, and this authority undoubtedly extends to his subordinate officer, the commissioner of the general land office. This supervisory power of these chiefs of the land department cannot now be seriously questioned. The whole matter is reviewed in Orchard v. Alexander, supra, and maintains this view. It is not necessary to issue the patent first, and then contest the right in the courts, where fraud or fatal defects in the proceedings appear. The supervising officer is not obliged to sit quietly, and allow a proceeding to be consummated, which it would be immediately his duty to take steps to annul. This power of reviewing and setting aside the action of the local land officials is not arbitrary and unlimited. Cornelius v. Kessel, 128 U. S. 456, 9 Sup. Ct. 122. It does not prevent judicial inquiry. Johnson v. Towsley, 13

Wall. 72. The party making proofs, accepted by the local land officers, paying his money for the land, and receiving a receipt therefor, acquires an interest of which he cannot be arbitrarily dispossessed. His interest is subject to local and state taxation. Carroll v. Safford, 3 How. 441; Witherspoon v. Duncan, 4 Wall. 210. The legal title is held in trust for him by the government, and he cannot be deprived of his equitable rights without due process of law, and this implies notice and a hearing, but does not require that the hearing must be in the courts, or forbid an inquiry and determination of the land department. Orchard v. Alexander, supra. While this equitable interest of the entryman, after final proofs and payment, upon final receipt is subject to sale or incumbrance, it is but the disposition of the equitable tie and the purchaser takes sub judice. he takes the equitable title subject to the future action of the land department in approving or disapproving of the final proofs or in canceling the entry on the ground of fraud. The doctrine of caveat emptor applies. Custer, 8 Land Dec. Dep. Int. 269; Marquez v. Frisbie, 101 U. S. 473; Vance v. Burbank, Id. 514; Quinby v. Conlan, 104 U. S. 420; Shepley v. Cowan, 91 U. S. 330; Merriam v. Bachioni (Cal.) 44 Pac. 481; Grandin v. La Bar (N. D.) 57 N. W. 241; Judd v. Randall (Minn.) 29 N. W. 589; Holmes v. State, 100 Ala. 291, 14 South. 51; Jones v. Meyers, 2 Idaho, 793, 26 Pac. 215; Root v. Shields, 1 Woolw. 340, Fed. Cas. No. 12,033; Kerr v. Watts, 6 Wheat. 550; U. S. v. Steenerson, 50 Fed. 504, 1 C. C. A. 552; Mortgage Co. v. Hopper, 12 C. C. A. 293, 64 Fed. 553. The commissioner of the general land office had authority to cancel the entry of Bales, the grantor of the plaintiffs, upon the evidence adduced at the hearing ordered by him, and this action cannot be assailed by the courts without positive averinent and proof that he acted without notice to the entryman, or that his action or the action of the local land officials was tainted with fraud or procured by fraud.

Smith v.

Where the land department acts upon evidence, the findings of fact cannot be assailed in the courts, in the absence of a clear showing that the decision was procured by fraud or imposition. McHarry v. Stewart (Cal.) 35 Pac. 141, and cases there cited, affirmed in Stewart v. McHarry, 159 U. S. 643, 16 Sup. Ct. 117; Lee v. Johnson, 116 U. S. 48, 6 Sup. Ct. 249. Upon matters of fact the findings of the department are conclusive. The courts cannot exercise any direct appellate jurisdiction over the rulings of the land officers or of their superiors in their department in land matters, nor can they reverse or correct them in a collateral proceeding between the parties. Quinby v. Conlan, 104 U. S. 420; Warren v. Van Brunt, 19 Wall. 646; Shepley v. Cowan, 91 U. S. 330; Moore v. Robbins, 96 U. S. 530; Vance v. Burbank, 101 U. S. 514; Steel v. Smelting Co., 106 U. S. 447, 1 Sup. Ct. 389; Baldwin v. Stark, 107

U. S. 463, 2 Sup. Ct. 473; U. S. v. Minor, 114 U. S. 233, 5 Sup. Ct. 836; Barden v. Railroad Co., 154 U. S. 288, 14 Sup. Ct. 1030; Fernald v. Winch, 50 Kan. 79, 31 Pac. 665; Freese v. Rusk (Kan. Sup.) 38 Pac. 255. Perhaps the rule is as well stated in the case of Shepley v. Cowan, 91 U. S. 330, as in any case coming before the great tribunal of last resort: "The officers of the land department are specially designated by law to receive, consider, and pass upon proofs presented with respect to settlements upon the public lands, with a view to secure rights of preemption. If they err in the construction of the law applicable to any case, or if fraud is practiced upon them, or they themselves are chargeable with fraudulent practices, their. rulings may be reviewed and annulled by the courts when a controversy arises between private parties founded upon their decisions; but, for mere errors of judgment upon the weight of evidence in a contested case before them the only remedy is by appeal from one officer to another of the department, and perhaps, under special circumstances, to the president. It may also be, and probably is, true that the courts may furnish, in proper cases, relief to a party where new evidence is discovered, which, if possessed and presented at the time, would have changed the action of the land officers; but, except in such cases, the ruling of the department on disputed questions of fact made in a contested case must be taken, when the ruling is collaterally assailed, as conclusive." In this case, therefore, we cannot inquire into the correctness of the ruling of the land department upon the hearing upon which the cancellation of the Bales entry was based, unless it appears that fraud was practiced either by the government officials or upon them; and the bare allegation that such was the fact, that the evidence upon which the cancellation was made was false and untrue, and thereby the register and receiver of the land office and the commissioner of the general land of fice were misled in their conclusions and decision by them, of itself is not sufficient to warrant the inference that these officers were imposed upon or deceived. "The court does not interfere with the title of a patentee when the alleged mistake relates to a matter of fact, concerning which those [the land] officers may have drawn wrong conclusions from the testimony. A judicial inquiry as to the correctness of such conclusions would encroach upon a jurisdiction which congress has devolved exclusively upon the department. It is only when fraud and imposition have prevented the unsuccessful party in a contest from fully presenting his case, or the officers from fully considering it, that a court will look into the evidence. It is not enough, however, that fraud and imposition have been practiced upon the department, or that false testimony or fraudulent documents have been presented. It must appear that they affected its determination, which, other

wise, would have been in favor of the plaintiff." Lee v. Johnson, 116 U. S. 48, 6 Sup. Ct. 249. Under all the decisions of the federal supreme court, we must hold that the land department can, and is bound to, cancel a final receipt or certificate, before patent issues, upon the ground of fraud in the initial entry, or in the final proofs, upon due notice to the entryman. The purchaser of the equitable title of the entryman, under the final certificate, secures by the conveyance nothing more than the equitable interest of the entryman grantor, and this is subject to the future action of the department in canceling and suspending the entry. Of course, this cancellation ought to be, and as stated in the case of Orchard v. Alexander, supra, must of necessity be, after a hearing of which the entryman must have notice.

2. This brings us to the matter of notice. It is asserted that there was an allegation in the answer and cross petition of the defendant that Bales, the desert land entryman, and the plaintiff's made an application for a hearing in the matter of the cancellation of the entry of Bales, and that notice was given to all of the parties of the time and place of hearing; and that, as these allegations were denied in the reply, the burden of proof of these allegations rested upon the defendant. There was no evidence whatever upon these matters. Pretermitting this. question, and assuming that it was necessary for the defendant to have introduced proof of notice, yet it appears by the allegations of the answer and cross petition that a hearing was had, and that Bales was present by attorneys, and Caldwell, one of the plaintiffs in error, was also present in person at the hearing. These allegations are not denied in the reply, and must be taken as true. Any informality or irregularity in the notice to the entryman or his grantors was undoubtedly waived by a general appearance in the cause. There is absolutely nothing to show in the record that Bales or the plaintiffs, or either of them, specially appeared, and we must presume, in the absence of such showing, that the hearing was had without objection on their part, and that they submitted to the jurisdiction of the local land office and all subsequent proceedings. It was incumbent upon the plaintiffs to show that their grantor appeared specially, if that was the case, and only for the purpose of contesting the sufficiency or want of notice. The entryman alone was the proper party to be notified of the hearing, as it is clear that the land department is not bound to take notice of any conveyance by the entryman after final proof and before patent issues. It must be taken as admitted by the pleadings that there was a hearing, and that Bales, the entryman, and Caldwell, one of the grantees plaintiffs, were present thereat, and participated therein. Parsons v. Venzke (N. D.) 61 N. W. 1036.

3. The act of congress invoked has no application. Section 7 thereof, which alone relates

to this case, is as follows: "And all entries made under pre-emption, homestead, desert land, or timber culture laws, in which final proof and payment may have been made and certificates issued, and to which there are no adverse claims originating prior to final entry, and which have been sold or encumbered prior to the first day of March, eighteen hundred and eighty-eight, and after final entry, to bona fide purchasers, or encumbrancers, for a valuable consideration, shall unless upon an investigation by a government agent, fraud on the part of the purchaser has been found, be confirmed and patented upon presentation of satisfactory proof to the land department of such sale or encumbrance." The entry of Bales was canceled about a year prior to the passage of this law, and the defendant had made his filing and entry on the premises in dispute before its enactment. There had been an investigation by a government agent, and the hearing was had upon his report. One of the findings in the land office was to the effect that the entry was made for the benefit of the plaintiffs, who purchased the land covered by the entry of Bales, and that finding would seem to take the plaintiffs out of the protection of the statute. The section is a direction to the land officials, and not for the control of the courts, as the entry and sale is to be confirmed and patented upon presentation of satisfactory proof to the land department thereof; that is, that the sale was bona fide. The plaintiffs can secure no relief in the courts in this section, but must present their case to the land department. This section has been construed by one court, at least. Parsons v. Venzke, supra. The supreme court of North Dakota say: "At the time this act became a law the entry in question was not in existence. It was canceled several days before. The act does not relate to such entries. Secretary Noble so ruled in Case of Ross, 12 Land Dec. Dep. Int. 446." We follow that decision, and hold that the entry of Bales was not in existence at the time of the passage of the law, but had been canceled some time previously, and that the act invoked does not apply.

4. It is finally contended that the plaintiffs could not be disturbed in their possession "growing out of their inclosure of the lands in dispute." The findings of the court below upon this point are, in effect, that the lands in controversy, together with other lands, at the time of the entry of the defendant, were situate within an inclosure, consisting of a fence in part owned by the plaintiffs and in part by strangers to the suit. The lands inclosed were claimed by plaintiffs for their exclusive use and benefit. The defendant entered upon the land through a gate in the fence on the east side of the tract in dispute, situate upon the lands of strangers to the suit, which gate had been constructed for the accommodation of parties in the vicinity, and had been used by them and defendant for a long time, without objection on the part of

plaintiffs. The entry was made by the permission of the owners of the fence wherein the gate was placed, and was a peacable entry, and not a forcible intrusion. These findings accord with the evidence, except as to the claimed exclusive use of the inclosed premises by plaintiffs. The conclusion of law on this point was "that the defendant had an implied license from the plaintiffs to enter the land." It clearly appeared from the evidence of Gardinier, one of the plaintiffs, that at his instance one Holliday had filed upon certain lands in the inclosure, which appears to be directly adjoining the tract in dispute. The inclosure of the plaintiffs was not then an exclusive possession. One of them had invited a citizen to file on lands within the inclosure, and he did so, and entered therein. An attempt is made by counsel to bring this case within the rule announced in the cases of Atherton v. Fowler, 96 U. S. 513; Hosmer v. Wallace, 97 U. S. 575; Trenougth v. San Francisco, 100 U. S. 251; U. S. v. Williams, 30 Fed. 314, 315; and certain decisions of the state courts, which it is asserted follow the same rule that an entry and settlement upon the public lands cannot be made upon occupied, settled, or improved lands. The lands of the plaintiffs within this inclosure seem from the evidence to have been used mostly for grazing purposes, and the evidence discloses that the tract in controversy had no improvements whatever upon it, either ditches upon the same, or fences inclosing it, or buildings upon it. It was within a general inclosure of plaintiffs' lands, and those of at least one person who had been invited to enter thereon by one of them, and also of public lands, particularly the tract in dispute. We do not think that any court would establish a rule that any inclosure of the public lands of great area would serve to lead to the absorp tion of the public domain by parties who are thereon without claim or color of right to the exclusion of settlers.

Squatters' rights

ought to be protected to a reasonable extent, and the rights of those who have expended time, money, and toil in the improvement of lands which they have cultivated in good faith under an honest belief that the title or possessory rights held by them were good; but there must be limits to the doctrine that an inclosure alone is such a possession as protects a possessory right to the public lands, for otherwise the public domain would be parceled out to the greedy and the unscrupulous, without a shadow of right, except naked possession. Nearly all of the cases cited where such possessory rights have been upheld rest upon the recognition of some sort of title. under a Mexican grant, or from some person or corporation, who assumed to have the perfect or inchoate title, which has been declared void by the courts. Such parties who have in good faith acquired lands under color of title or claim of right, or under a general license from the putative owner,

have been and ought to be protected, either in payment for improvements or in a preference right to entry of the land, but the doctrine ought not to be strained to cover the unlimited inclosure of the public domain, and to shut out the sovereign owner of the soil, and those for whose benefit it holds the lands. Although the California and Nevada decisions seem to hold rather rigidly to the rule contended for, yet there are cases which lean strongly in the other direction, protecting a peaceable entry upon inclosed lands in the possession of others. Thus, in Whittaker v. Pendola, 78 Cal. 296, 20 Pac. 680. it was held that a mere trespasser on the public lands of the government, within an inclosure erected and maintained contrary to the express provisions of the act of congress, "to prevent the unlawful occupancy of the public lands," approved February 25, 1885 (23 Stat. 321, c. 149), cannot by such occupancy prevent a homestead entry of the land by a citizen who goes peaceably upon the lands, and complies with the law; and in this case most of the demanded premises were inclosed and cultivated by the adverse party for two years before the issuance of the initial receipt, who had erected thereon a house and barn, and the rule announced in Haven v. Haws, 63 Cal. 514, that the homestead entryman had the right to make his entry of the whole tract, notwithstanding the possession by the adverse party of the greater portion of the tract filed upon, was followed. In Goodwin v. McCabe, 75 Cal. 588, 17 Pac. 705, it was held that the party claiming possession as against the entryman must be in "actual" possession, and the cases were reviewed briefly. Atherton v. Fowler, 96 U. S. 513, was referred to as holding that the land was in the actual possession of the plaintiff's testator, and that the entry of the defendant was forcible, but did not have in view the case of an entry upon actual possession without the use of force. In Durand v. Martin, 120 U. S. 369, 7 Sup. Ct. 587, Martin was "in actual possession under color of title." In Quinby v. Conlan, 104 U. S. 423, the rule was stated that "a settlement could not be made on public land already occupied," and the element of force was not adverted to. In Mower v. Fletcher, 116 U. S. 381, 6 Sup. Ct. 409, the court said that if a party "enters into possession of land, and improves and cultivates and holds it, no one by forcibly or surreptitiously getting into possession can make a pre-emption settlement," etc. So the court comes to the conclusion that the reasoning of the courts in all cases seems to forbid the invasion of the actual possession of another, whether such invasion is accompanied by force or not, and cites McBrown v. Morris, 59 Cal. 68, as supporting this view; but it states further that the rule applies only where the first party has actual, and not a mere constructive, possession. It cites also the case of Belk v. Meagher, 104 U. S. 287. relating to the possession of a mining claim,