Statement of the Case.

GONZALES v. FRENCH.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF

ARIZONA.

No. 34. Argued and submitted April 27, 28, 1896. Decided November 30, 1896.

As the claim of the plaintiff in error, claiming under an alleged preëmption, was passed upon by the proper officers of the land department, originally and on appeal, and as the result of the contest was the granting of a patent to the contestant, in order to maintain her title she must show either that the land department erred in the construction of the law applicable to the case, or that fraud was practised upon its officers, or that they themselves were chargeable with fraudulent practices, which she has failed to do.

The claim of the plaintiff in error to a right of preëmption is fatally defective because her vendors and predecessors in title had failed to make or file an actual entry in the proper land office.

EMMA J. Gonzales, in October, 1891, filed a bill of complaint in the District Court of the Fourth Judicial District of the Territory of Arizona, against E. W. French, probate judge of the county of Yavapai and Territory of Arizona, and former . trustee of the inhabitants of the town of Flagstaff, of the county of Coconino, and J. E. Jones, probate judge of said county of Coconino, and the successor as trustee of the inhabitants of the said town of Flagstaff, and therein alleged that she was the equitable owner of a certain tract of land containing 120 acres, and forming part of section 16, T. 21 N., R. 7 E. of the Gila and Salt River meridian. The facts, as alleged by her, were substantially these: Prior to the survey of said township, Thomas F. McMillan, Frank Christie and Conrad Farriner, who were citizens of the United States, over the age of twenty-one years, and qualified preemptors, while prospecting for a home upon the public lands of the United States subject to preëmption, or that might so become when the same should be surveyed, settled on this land, intending to claim the same as preëmptors, and were on said land at the date of survey in 1878; that they had built dwelling

Statement of the Case.

houses thereon and reduced portions of it to cultivation prior to such survey; that they continued to improve and claim the same until in June, 1883, when the plaintiff bought from the said occupants all their improvements and took possession thereof; that she afterwards, and while living on the land she now claims, built a dwelling house thereon and made other improvements, prior to April 2, 1885, of the value of $3000; that, on said date, she made formal application to the register and receiver of the United States Land Office at Prescott, Arizona, to be allowed to file a preëmption declaratory statement for the land, and to enter the same, tendering to said officers the proper price therefor, said application being made before any adverse claimant was known, but her application was rejected on the ground that the land was reserved for schools; that on February 3, 1889, Congress passed an act for the relief of the inhabitants of Flagstaff, Arizona, the tract involved in this suit being embraced in the half section mentioned in said act, by which it was provided that the probate judge of Yavapai County might enter the south half of section sixteen, township twenty-one north, range seven east, in trust for the occupants and inhabitants of Flagstaff. The bill further alleged that the tracts settled on at the date of the survey were excepted by section 2275 of the Revised Statutes of the United States from the reservation of the sixteenth and thirty-sixth sections in each township for school purposes, but that, if not so excepted, the land claimed by her was released from any such reservation by said act of February 13, 1889, and became subject to her settlement claim; that the said French, probate judge, had been permitted, on January 17, 1889, to make townsite declaratory statement for the benefit of the inhabitants of Flagstaff for said half section; that she, the plaintiff, contested the right of the said French to make townsite entry, and prosecuted her protest by successive appeals to the Commissioner of the General Land Office and the Secretary of the Interior, but that a patent of the United States was issued to said French on said entry for said land; that at the time she purchased said improvements and settled on the land, the town of Flagstaff was unorganized

Opinion of the Court.

and unknown, and none of the inhabitants were then settled on said land or claiming any part of it; and that on the organization of Coconino County the land in suit became a part thereof, and the defendant Jones became probate judge of the new county and the successor to French in the trust. The plaintiff asked a decree declaring that the settlement and occupancy of said land, at the date of survey, by qualified preëmptors, excluded the same from the reservation for school purposes; that, by reason of defendant's purchase of the improvements and her own occupancy and improvements, a right of entry attached thereto in her; that the refusal of the local officers to allow her filing in 1885 was unlawful; that the act of February 13, 1889, did not take away any of her rights, but, if anything, released any claim the Territory of Arizona might have to the land, and that, under the townsite laws referred to in said act, her rights as a settler were and are superior to those of the inhabitants of Flagstaff, as to the particular part of the section covered by her claim; and that the said patentee, as trustee for the said inhabitants, in so far as the land claimed by the plaintiff is embraced in said patent, should be decreed to be the trustee of the plaintiff, and be required to deliver a deed for the same to the plaintiff.

The defendant demurred to the complaint on the general ground that it failed to state facts sufficient to constitute a cause of action. This demurrer was sustained by the District Court. The plaintiff elected to stand on her complaint, and a final decree was entered dismissing the bill. The plaintiff thereupon appealed to the Supreme Court of the Territory, where the judgment below was affirmed, from which decree an appeal was taken and allowed to this court.

Mr. S. D. Luckett for appellant. Mr. Henry N. Copp was on his brief.

Mr. Edward M. Doe for appellees submitted on his brief.

MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

Opinion of the Court.

Section 1946 of the Revised Statutes enacted that sections numbered sixteen and thirty-six in each township of the Territories of New Mexico, Utah, Colorado, Dakota, Arizona, Idaho, Montana and Wyoming should be reserved for the purpose of being applied to schools in the several Territories named, and in the States and Territories thereafter to be erected out of the same. Section 2275 is as follows: "Where settlements with a view to preëmption have been made before the survey of the lands in the field, which are found to have been made on section sixteen or thirty-six, those sections shall be subject to the preëmption claim of such settler; and if they, or either of them, have been or shall be reserved or pledged for the use of schools or colleges in the State or Territory in which the lands lie, other lands of like quantity are appropriated in lieu of such as may be patented by preemptors.

In 1878 a survey in the field was made of the township in which the lands in dispute were situated, which survey, together with a plat of the same, was approved February 3, 1879. At the time of the survey McMillan and Farriner were residing on and cultivating lands constituting a portion of section sixteen, and in 1883 Emma J. Gonzales, the plaintiff in error, purchased from said occupants their improvements, took possession of the land, and erected additional improvements thereon.

February 13, 1889, 25 Stat. 668, c. 150, Congress enacted the following law:

"A bill for the relief of the occupants of the town of Flagstaff, county of Yavapai, Territory of Arizona.

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the probate judge of Yavapai County, Territory of Arizona, be, and he is hereby, authorized to enter, in trust for the occupants and inhabitants of Flagstaff for townsite purposes, the south half of section sixteen, township twenty-one north, range seven east, Gila and Salt River meridian, in the Territory of Arizona, subject to the provisions of sections twentythree hundred and eighty-seven, twenty-three hundred and

Opinion of the Court.

eighty-eight and twenty-three hundred and eighty-nine of chapter eight of the Revised Statutes of the United States relating to townsites.

"SEC. 2. That upon the passage of this act the Territory of Arizona, through its proper officers, shall be, and hereby is, authorized to select as indemnity to said land, and in full satisfaction thereof and for the purpose stated in section nineteen hundred and forty-six, one half section of public lands at any office in said Territory, said selections to be made according to legal subdivisions."

On January 17, 1889, E. W. French, as probate judge of said county, in trust for the inhabitants of the town of Flagstaff, filed a declaratory statement for the entry of said south half of said section sixteen, and on July 29, 1889, the plaintiff in error appeared before the local land officers and filed a protest against the allowance of said entry by the said probate judge. At the hearing before said local land officers the land was awarded to the said probate judge in trust for the inhabitants of Flagstaff, and the plaintiff appealed successively to the Commissioner of the General Land Office and to the Secretary of the Interior, by both of whom her right of entry was denied; the land was awarded to said probate judge, and subsequently a patent was issued to him in trust for the occupants and inhabitants of the said town of Flagstaff.

As the claim of the plaintiff in error to the land in question was passed upon by the proper local officers of the land department, and subsequently, upon appeal, by the Commissioner of the General Land Office, and, upon a further appeal, by the Secretary of the Interior, and as the result of the contest was the granting of a patent to the probate judge of the county of Yavapai as trustee of the inhabitants of the town of Flagstaff, the plaintiff, to maintain her bill, must aver and prove either that the land department erred in the construction of the law applicable to the case, or that fraud was practised upon its officers, or that they themselves were chargeable with fraudulent practices. Johnson v. Towsley, 13 Wall. 72; Moore v. Robbins, 96 U. S. 530; Steel v. Smelting Co., 106 U. S. 447.