VANTONGEREN, Respondent, v. HEFFERNAN et al., Appellants.

1. Public Lands-Pre-emptioner's Rights before Patent.

A pre-emptioner of public land, with the usual final receipt, has no such title, prior to the issuance of the patent, as will enable him to maintain an action to quiet title to the land.

2. Same-Jurisdiction of Courts Prior to the Patent.

Under the pre-emption laws of the general government the courts have no jurisdiction. until after the patent has been issued, to pass upon conflicting claims, arising between private parties, involving title to public land.

(Argued February 10, 1888; reversed, and opinion filed, May 8, 1888.)

Appeal from the district court of Grant county; Hon. L. K. CHURCH, Judge.

Mellette & Mellette and J. F. Fisher, for appellant.

The doctrine has been long settled and uniformly upheld that, while the legal title to lands remain in the United States, and proceedings for acquiring this title are yet in fieri, the courts will not interfere to control the exercise of the power vested in the land department of the government. All conflicts arising out of these proceedings, and all questions pertaining thereto prior to the issuance of the patent, belong exclusively to that department for adjustment. U. S. v. Schurz, 102 U. S. 396; Forbes v. Driscoll, 31 N. W. Rep. 633.

R. B. Smither and Geo. W. Hawes, for respondents.

The two cases cited by appellant are not in point. We maintain that the district courts, being possessed of equitable jurisdiction, have original jurisdiction over the subject-matter of all actions arising out of a controversy between individuals involv ing title to real property or the boundary thereof, except in actions of forcible entry or forcible and unlawful detainer, (section 28, C. C. Pro.,) either before or after patent issues.

The settled doctrine of both state and federal courts is that a purchaser acquires an equitable title when he has completed his part of the contract; and a purchaser of public land, receiving a certificate of purchase or receiver's receipt, acquires an equitable title the same as on a sale by an individual owning the fee. Brill v. Stiles, 35 Ill. 305; Lindsey v. Hawes, 2 Black, 554; Arnold v. Chapman, 2 Ia. 1.

TRIPP, C. J. This is an action in the nature of a suit in equity, brought by the plaintiff, Francis Vantongeren, against the defendants, John Heffernan and Michael Brennan, to quiet title to certain lands situated in the county of Grant, Dak. The action was tried before a referee; and the facts found by the referee show that the plaintiff, Francis Vantongeren, on the 2d day of January, A. D. 1880, entered the S. W. of section 21, township 121, range 47, under the pre-emption law, and that Michael Brennan, defendant, on the 7th day of December, 1880, entered the N. W. of the same section, under the preemption law, and that each received, at the time of entry, the usual final receipt, and that the defendant Michael Brennan, on the 13th day of December, 1880, conveyed to the defendant John Heffernan the said N. W. 4 of said section 21 by deed of warranty. These entries and final proofs were made under the survey of the United States in 1865. The referee further finds "that at the time the plaintiff in this action, in the spring of 1879, settled upon and improved the south-west quarter of section 21, township 121, range 47, under the government survey of 1865, there was not visible any section corners or landmarks, showing township, section, quarter lines or corners; that plaintiff, in selecting this quarter section of land, so far as the bound. aries of the same are concerned, was governed by the Whetstone creek, and took and settled upon and improved said quarter section with reference to its location north of the Whetstone creek, except the twenty acres south of the Whetstone creek, as in these findings herein before mentioned; also he was governed by the character of the soil, the land lying north of the Whetstone be

ing of a far better quality than that lying south of the said Whetstone creek." Finding 17.

From the findings it further appears that in the month of September, 1882, the government of the United States caused a resurvey to be made of the township, including these quarter sections in controversy; and by this new survey the east and west quarter section lines between the N. W. and S. W. quarter of said section 21 were removed south about 80 rods; making the N. of the S. W. 4, under the survey of 1865, to become the S. of the N. W. of section 21 under the survey of 1882. That the improvements of the plaintiff, consisting of a house, barn, granary and other buildings, breaking, etc., of the value of about $700, were made and erected prior to the new survey, and are situated on the N. of the S. W. of said section 21 under the survey of 1865, and on the S. of the N. W. under the survey of 1882. There is no finding of the referee as to where the lines of the survey of 1865 were actually run, or where the section and quarter section corners were actually established with reference to this land, further than as shown by the location of these quarter sections upon the plats with reference to Whetstone creek, and other natural objects designated thereon. No patents have ever issued for either of said quarter sections.

The complaint alleges that, by virtue of the premises, he is the owner of said N. of the S. W. of said section 21, under the survey of 1865, now designated as the S. of the N. W. of section 21, under the survey of 1882; that the defendant has entered upon and disturbed his possession, has committed trespass, and threatens to commit trespass, thereon; and prays "that this court decree that plaintiff is the rightful owner of said south half of the north-west quarter of said section, as well as the north half of the south-west quarter of said section; that defendants have no rights or interest therein; that they be required to execute to plaintiff a good and sufficient deed of title to the said south half of the north-west quarter of said section, and that the title to said land be quieted in said plain

tiff; and that he have judgment against the defendant for the sum of five hundred dollars, in addition to the relief prayed for in his original complaint."

The court confirmed the report of the referee, and thereupon ordered, adjudged, and decreed "that the plaintiff have judgment, as prayed for in his complaint, against the defendant, and each and all of them; that all adverse claims of the defendants, and each of them, and all persons claiming or to claim said premises, or any part thereof, through or under said defendants, or either of them, are hereby adjudged and decreed to be invalid and groundless; and that the plaintiff be, and he is hereby, declared and adjudged to be the true and lawful owner of the land described in the complaint, and hereinafter described, and every part and parcel thereof, and that his title hereto adjudged to be quieted against all claims, demands, or pretention of the defendants, or either of them."

The defendant Heffernan appeared, and demurred to the complaint, upon the ground, among others, that the court of equity had no jurisdiction to determine the plaintiff's title prior to issue of the patent; and, upon the overruling of his demurrer by the court, and exceptions allowed, he denied the jurisdiction of the court by answer, upon a statement, in allegation of facts, differing from the allegations of the complaint in the essential particular only as to the deviation of the east and west lines of the two surveys; the defendant alleging that the actual survey of 1865 ran its east and west lines between these quarter sections but a few rods only, to-wit, six or eight rods, north of the survey of 1882, and the plaintiff alleging that the deviation. was about eighty rods.

After the entry of decree upon the findings of the referee, defendant brings the case to this court, assigning as error that the court below, prior to issue of patent, had no jurisdiction to quiet title in the plaintiff, and to determine the ultimate rights of the parties, while the title remained in the government.

It will be observed that this is not an action to recover the

possession, or to recover damages for disturbing the possession, but it is an action of the plaintiff in possession to forever bar the defendant and his grantees from asserting any title or interest in the land. There is in the complaint a claim for damages for alleged trespass; but this is only incidental and auxiliary to the equitable cause of action set out. Can such a final determination of title be made by the courts prior to issuance of the patent by the government? Under our statute "any person settled upon the public lands belonging to the United States, on which settlement is not expressly prohibited by congress, or some department of the general government, may maintain an action for any injuries done the same, also an action to recover the possession thereof, in the same manner as if he possessed a fee-simple title to said lands." Section 650, Code Civil Proc.

The plaintiff does not seek to recover under this section. He does not seek to recover for disturbance of his possession, but seeks to have a final determination of his title as against the defendants and their grantees, upon the theory that the final certificate issued by the land-officers vested in him a fee of the land which the courts can confirm as against the adverse claims of the defendants.

To maintain this action, the court will be required to hold that the ultimate title of the government passes by the final receipt, subject only to the formal or ministerial act of the department officers in issuing the patent; and that, when the local land officers have once issued a final receipt in cases of preemption, the commissioner of the general land-office and the secretary of the interior have no power to recall or cancel the same, but that the patent must issue thereon as of course.

We are led, then, to examine what force and effect is to be given to the final receipt in pre-emption cases; and, to do so intelligently, we will have to note the origin of the law, the changes that have been made therein, and the decisions of the courts rendered from time to time construing the provisions of the original and amended act.