case, were established and proved by the evidence, if it appeared that the object of the request to have it so remanded was to ask this court to determine questions of fact upon the evidence. In The Santa Maria, 10 Wheat. 431, 444 [6: 359, 362], it was said by Mr. Justice Story: "We think, therefore, that upon principle every existing claim which the party has omitted to make at the hearing upon the merits, and before the final decree, is to be considered as waived by him, and is not to be entertained in any future proceedings; and when a decree has been made, which is in its own terms absolute, it is to be carried into effect according to those terms, and excludes all inquiry between the litigating parties as to liens or claims which might have been attached to it by the court, if they had been previously brought to its notice." See also Hickman v. Fort Scott, 141 U. S. 415 [35: 775].

But it is difficult to see how the proposed findings, if made, could be deemed material. This court held that the treaty of Buffalo Creel: was a grant in præsenti of a certain tract of lands in Kansas, described by metes and bounds. The second article of the treaty indicates that the grant was made upon the basis of 320 acres for each inhabitant, the recital "being 320 acres for each soul of said Indians as their numbers are at present computed." But the grant was not of 320 acres for each soul, but of a tract of land en bloc. Under the decision of the court a present title thereto passed to the Indians. This being the case, the United States are in no position to show that the government erred in its computation of souls, or that certain tribes who are named in the treaty did not assent to it. If the land passed under the treaty, then it is only a question between the Indians themselves who were signatories thereto or assented to its terms. The only object of the proposed order, though it is but faintly outlined in the briefs, must be to show that if the Stockbridges, Munsees, and [472]Brothertowns *never assented to the treaty, the grant should be reduced in the proportion of 320 acres to each member of these tribes. But this is an indirect attack upon the decree. The case was remanded to the court of claims, not to determine who were actually parties to the treaty, or to recompute the number of souls, or in any other way to reduce the extent of the grant, but to render a judgment for the amount received by the government for the Kansas lands, less an amount of lands upon the basis of which settlement had been made with the Tonawandas, and less the 10,240 acres allowed to thirty-two New York Indians, "together with such other deductions as may seem to the court below to be just." But there is nothing to indicate that the court of claims was at liberty to redetermine who were parties to the treaty, and entitled to the benefit of its provisions. That question had already been settled beyond recall. The motion for additional findings must therefore be denied.

The denial of this motion practically disposes of the appeal, as the action of the court below in its supplemental findings was in strict conformity with the mandate of this

court. It found the amount of land sold by the United States, the cost and expense of surveying and platting said lands, the num ber of acres allowed to the Tonawanda band, the number allotted to the thirty-two Indians, and, after deducting the expense of surveying and platting, the amount paid by the United States in settlement of the Tonawanda band and thirty-two Indians, there remained of the value of the land at $1.25 per acre the sum of $1,967,056. The court further found who the New York Indians were, who were parties to the treaty, and as a conclusion of law judgment was entered for the above amount. This court has repeatedly held that a second writ of error does not bring up the whole record for re-examination, but only the proceedings subsequent to the mandate, and if those proceedings are merely such as the mandate command, and are necessary to its execution, the writ of error will be dismissed, as any other rule would enable the losing party to delay the issuing of the mandate indefinitely. The Santa Maria, 10 Wheat. 431 [6: 359]; Roberts v. Cooper, 20 How. 467 [15: 969]; Tyler v. Magwire, 17 Wall. 253 [21: 576]; The *Lady Pike, 96 U. S. 461 [24: 672]; Wayne[473] County Supervisors v. Kennicot, 94 U. S. 498 [24: 260]; Stewart v. Salamın, 97 U. S. 361 [24: 1004].

In Stewart v. Salamon, supra, Mr. Chief Justice Waite observed: "An appeal will not be entertained by this court from a decree entered in a circuit or other inferior court, in exact accordance with our mandate upon a previous appeal. Such a decree, when entered, is in effect our decree, and the appeal would be from ourselves to ourselves. If such an appeal is taken, however, we will upon the application of the appellee, examine the decree entered, and if it conforms to the mandate, dismiss the case with costs. If it does not, the case will be remanded with proper directions for the correction of the error. The same rule applies to writs of error." Humphrey v. Baker, 103 U. S. 736 [26: 456]; Clark v. Keith, 106 U. S. 464 [27: 302]; Mackall v. Richards, 116 U. S. 45 [29: 558].

The appeal will therefore be dismissed.

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Cornelius N. Bliss, Secretary of the Interior, for whom his successor, Ethan A. Hitchcock, was subsequently substituted.

was originally brought against

2. So long as the legal title remains in the
government all questions of right to those
lands should be solved by appeal to the Land

Department, and not to the courts.
8. A selection of lands under the swamp land

in the General Land Office of the United
States by the state of Oregon and by the
grantors of this plaintiff to set aside and
have held for naught the orders and rulings
so made by the said William F. Vilas as such[475]
Secretary of the Interior, which proceedings
came to an end within one year last past.

"That, as plaintiff is informed and be

act by a state, and an approval of that selec-
tion by the Secretary of the Interior, do not
entitle a purchaser of such lands from the
state to an injunction restraining the Secre-
tary of the Interior and his subordinate off-lieves, since the said proceedings last afore-
said came to an end, the defendant, as such
Secretary of the Interior, is proceeding to put
in force and to carry out the orders and rul-
ings so as aforesaid made by the said Wil-
liam F. Vilas as such Secretary of the In-
terior and to hold the lands hereinbefore de-
scribed to be public lands of the United

cers from carrying out his orders annulling
the approval of such selection, and receiving
applications and allowing entries of such
lands as public lands of the United States.

[No. 581.]

Argued February 23, 24, 1899. Decided States and subject to entry under the laws
April 3, 1899.
ot the United States, and threatens and in-
tends to receive and permit the officers of the
Land Department of the United States to re-
ceive applications for and allow entries of
the lands aforesaid as public lands of the
United States."

After alleging the invalidity of these proceedings, the bill goes on to aver that the proceeding thus initiated by Secretary Vilas throws a cloud upon appellant's title, "and is likely to cause many persons to attempt to settle upon the said lands and to enter the same in the Land Department of the United States as public lands of the United States subject to such entry, and that plaintiff will be unable to remove such persons from said lands or to quiet his title thereto as against that therefore this plaintiff is entitled in this them without a multiplicity of suits, and court to an order enjoining and restraining the defendant, as such Secretary of the Interior, and his subordinate officers of the Land Department of the United States, from ders and rulings into effect, and from perin any way carrying said last-mentioned orthe same open to entry, and from in any mitting any entries upon said land or holdway interfering with or embarrassing the plaintiff in his title and ownership of the lands aforesaid."


PPEAL from a decree of the Court of Appeals for the District of Columbia affirming the decree of the Supreme Court of that District sustaining a demurrer and dismissing a suit in equity brought by David Brown, plaintiff for an injunction restraining the Secretary of the Interior and the officers of the Land Department from carrying out certain orders of said Secretary, and from permitting any entries upon certain lands purchased as claimed by said plaintiff, and from interfering with him in his title and ownership of such lands. Affirmed.

Statement by Mr. Justice Brewer: [474] *On May 10, 1898, the appellant, as plaintiff, filed in the supreme court of the District of Columbia his bill, setting forth, besides certain jurisdictional matters, the swamp land act of September 28, 1850; the extension of that act to all the states by the act of March 12, 1860; a selection of lands thereunder by the state of Oregon (evidenced by what is called "List No. 5"), and an approving al on September 16, 1882, of that selection by the Secretary of the Interior; a purchase in 1880 from the state by H. C. Owen, of certain of those selected lands, and subsequent conveyances thereof to plaintiff. Then, after showing the appointment of Hon. William F. Vilas, as Secretary of the Interior, the bill proceeds:

"That, as plaintiff is informed and believes, on the 27th day of December, A. D. 1888, the said Secretary of the Interior, then the said William F. Vilas, made and entered an order annulling, canceling, and revoking the said 'list number 5,' and the approval thereof, and annulling and revoking the said judgment and determination so made by his said predecessor in said office, the said Henry M. Teller, whereby his said predecessor had adjudged and determined that the lands aforesaid were swamp and overflowed lands within the meaning of the acts aforesaid, and made and entered an order purporting to adjudge and determine that certain of the lands described in said 'list number 5' including the lands hereinbefore described were not swamp and overflowed lands within the meaning of the acts aforesaid.

"That thereafter, as plaintiff is informed and believes, divers proceedings were taken before the said Secretary of the Interior and

Upon these facts plaintiff prayed a decree canceling the order of December 27, 1888, restraining the officers of the Land Department from carrying it into effect, and forbidding the defendant and his subordinates from holding the lands to be public lands of the United States or subject to entry under the general land laws. To this bill a demurrer dismissed. Plaintiff appealed to the court was filed which was sustained, and the bill of appeals of the District, and upon an affirm"ance of the decree by that court brought the[476]

decision here for review.

Messrs. W. B. Treadwell and Charles A.
Keigwin for appellant.

Mr. Willis Van Devanter, Assistant
Attorney General, for appellee.

*Mr. Justice Brewer delivered the opin-[476] ion of the court:

Under the swamp land act the legal title passes only on delivery of the patent. So the statute in terms declares. The second section provides that the Secretary of the Interior, "at the request of said governor [the

governor of the state], cause a patent to be courts; those departments must be permit-
Issued to the state therefor; and on that pat-ted to proceed to the final accomplishment of
ent, the fee simple to said lands shall vest in all matters pending before them, and only
the said state." (9 Stat. at L. 519, chap. after that disposition may the courts be in-
84; Rogers Locomotive Mach. Works v. voked to inquire whether the outcome is in
American Emigrant Company, 164 U. S. 559, accord with the laws of the United States.
574 [41: 552, 559]; Michigan Land & Lum- When the legal title to these lands shall
ber Company v. Rust, 168 Ú. S. 589, 592 [42: have been vested in the state of Oregon, or
591, 592]).
in some individual claiming a right superior
to that of the state, then is inquiry permis-
sible in the courts, and that inquiry will ap-
propriately be had in the courts of Oregon,
state or Federal.

In this case the record discloses no patent, and therefore no passing of the legal title. Whatever equitable rights or title may have vested in the state, the legal title remained in the United States.

Until the legal title to public land passes from the government inquiry as to all equitable_rights comes within the cognizance of the Land Department. In United States v. Schurz, 102 U. S. 378, 396 [26: 167, 172], which was an application for a mandamus to compel the delivery of a patent, it was said:

"Congress has also enacted a system of laws by which rights to these lands may be acquired, and the title of the government conveyed to the citizen. This court has, with a strong hand, upheld the doctrine that so long as the legal title to these lands remained in the United States, and the proceedings for acquiring it were as yet in fieri, the courts would not interfere to control the exercise of the power thus vested in that tribunal. To that doctrine we still adhere."

While a delivery of the patent was or[477]dered, yet that was so "ordered because it appeared that the patent had been duly executed, countersigned, and recorded in the proper land records of the Land Department, and transmitted to the local land office for delivery, and it was held that the mere manual delivery was not necessary to pass the title, but that the execution and record of the patent were sufficient. And yet from that conclusion Chief Justice Waite and Mr. Justice Swayne dissented. The dissent announced by the chief justice only emphasizes the proposition laid down in the opinion, as heretofore quoted, that so long as the legal title remains in the government all questions of right should be solved by appeal to the Land Department, and not to the courts. See, in support of this general proposition, Michigan Land & Lumber Co. v. Rust, supra (which, like the present case, arose under the swamp land act), and cases cited in the opinion. Indeed, it may be observed that the argument in behalf of appellant was avowedly made to secure a modification of that opinion. We might well have disposed of this case by a simple reference to that decision; but in view of the earnest challenge by counsel for appellant of the views therein expressed, we have re-examined the question in the light of that argument and the authorities cited. And after such re-examination we see no reason to change, but on the contrary we reaffirm the decision in Michigan Land & Lumber Co. ▾ Rust. As a general rule no mere matter or administration in the various executive departments of the government can, pending such administration, be taken away from such departments and carried into the

We do not mean to say that cases may not arise in which a party is justified in coming into the courts of the District to *as-[478] sert his rights as against a 'proceeding in the Land Department, or when the department refuses to act at all. United States v. Schurz, supra, and Noble v. Union River Logging Railroad Co. 147 U. S. 165 [37: 123], are illustrative of these exceptional cases.

Neither do we affirm that the administrative right of the departments in reference to proceedings before them justifies action without notice to the parties interested, any more than the power of a court to determine legal and equitable rights permits action without notice to parties interested.

"Power of supervision and correction is not an unlimited or an arbitrary power. It can be exerted only when the entry was made upon false testimony or without authority of law. It cannot be exercised so as to deprive any person of land lawfully entered and paid for. By such entry and payment the purchaser secures a vested interest in the property and a right to a patent therefor, and can no more be deprived of it by order of the commissioner than he can be deprived by such order of any other lawfully acquired property. Any attempted deprivation in that way of such interest will be corrected' whenever the matter is presented so that the judiciary can act upon it." (Cornelius v. Kessel, 128 U. S. 456, 461 [32: 482, 484]. "The government holds the legal title in trust for him, and he may not be dispossessed of his equitable rights without due process of law. Due process in such case implies notice and a hearing. But this does not require that the hearing must be in the courts, or forbid an inquiry and determination in the Land Department." Orchard v. Alexander, 157 U. S. 372, 383 [39: 737, 741].

But what we do affirm and reiterate is that power is vested in the departments to determine all questions of equitable right or title, upon proper notice to the parties interested, and that the courts must, as a general rule, be resorted to only when the legal title has passed from the government. When it has so passed the litigation will proceed, as it generally ought to proceed, in the locality where the property is situate, and not here, where the administrative functions of the government are carried on.

In the case before us there is nothing to show that proper *notice was not given; that[479] all parties in interest were not fully heard, or that the adjudication of the administrative department of the government was not

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Justified by the facts as presented. The exhibits to the complaint and were exactly
naked proposition upon which the plaintiff alike, except that each contained a descrip-
relies is that upon the creation of an equita- tion of the particular piece of land to which
ble right or title in the state the power of it related. By the contracts the Southern
the Land Department to inquire into the va- Pacific Company agreed to sell and Darwin
lidity of that right or title ceases. That C. Allen to buy the land described in each
proposition cannot be sustained. Whatever contract upon the following conditions: Al-
rights, equitable or otherwise, may have len paid in cash a stipulated portion of the
passed to the state by the approval of List purchase price and interest at seven per cent
No. 5 by Secretary Teller, can be determined, in advance for one year on the remainder.
and should be determined, in the courts of He agreed to pay the balance in five years
Oregon, state or Federal, after the legal title from the date of the contracts. The de-
has passed from the government. The de-ferred payment bore interest at seven per
cree of the Supreme Court of the District of centum per annum, which was to be paid at
Columbia, sustained by the opinion of the the end of each year. He moreover bound
Court of Appeals of the District, was right, himself to pay any taxes or assessments
and is affirmed.
which might be levied on the property. The
contracts provided:

"It is further agreed that upon the punctual payment of said purchase money, interest, taxes, and assessments, and the strict and faithful performance by the party of the second part (Allen, the purchaser), his lawful representatives or assigns, of all the agreements herein contained, the party of the first part (the Southern Pacific Company) will, after the receipt of a patent therefor from the United States, upon demand and the surrender of this instrument, execute and deliver to the party of the second part, his heirs and assigns, a grant, bargain, and sale deed of said premises, reserving all claim of the United States to the same as mineral land."

Mr. Justice McKenna takes no part in the decision of this case.

DARWIN C. ALLEN, Piff. in Err.,




(See S. C. Reporter's ed. 479–492.)

Time of allowance of writ of error to state
court-decision upon grounds independent
of Federal question-power to review.

1. A writ of error from this court to a state

court may be allowed within two years from
the final decree. This rule was not changed
by the 6th section of the act of 1891.


When the state court decided the case upon sufficient grounds wholly independent of the Federal questions involved, this court will not consider such Federal questions.

ERROR to the Supreme Court of the
of that court affirming the judgment of the
trial court condemning the defendant, Dar-
win C. Allen, to pay certain instalments up-
on contracts for the sale of land within a
certain time, or that he be forever barred
and foreclosed of all right or interest in said
lands, and that said contracts be declared
void, in an action commenced by the South-
ern Pacific Railway Company, plaintiff,
against Darwin C. Allen. Dismissed for
want of jurisdiction.

See same case below, 112 Cal. 455.

There was a stipulation that the pur. chaser should have a right to enter into possession of the land at once, and by which he bound himself until the final deed was executed not to injure the property by denuding it of its timber. The contracts contained the following:

3. When the decree of the state court is ade-
quately sustained by an independent, nonfed-
eral question, there is no issue presented on
the record which this court has power to re-

[No. 144.]


Argued January 17, 1899. Decided April 3, in consequence of circumstances beyond its control, it sometimes fails to obtain patent for lands that seem to be legally a portion of a or its said grant, therefore nothing in this in

Pacific Company) claims all the tracts here-
"The party of the first part (the Southern
inbefore described, as part of a grant of
lands to it by the Congress of the United
States; that patent has not yet issued to it
for said tracts; that it will *use ordinary dil-[481]
igence to procure patents for them; that, as

Statement by Mr. Justice White:
[480] *This suit, commenced by the Southern

cific Company (the defendant in error here),
against Darwin C. Allen, who is plaintiff in
error, was based on eighty-four written con-
tracts entered into on the first day of Febru-
ary, 1888. All these contracts were made

assurance that patent or title will be procured; that in case it be finally determined that patent shall not issue to said party of the first part for all, or any, of the tracts herein described, it will, upon demand, repay (without interest) to the party of the second part all moneys that may have been paid to it by him on account of any of such tracts as it shall fail to procure patent for, the amount of repayment to be calculated at the rate and price per acre, fixed at this date for such tracts by said party of the first part, as per schedule on page 3 hereof; that said lands being unpatented, the party of the first Pa-part does not guarantee the possession of them to the party of the second part, and will not be responsible to him for damages, or cost, in case of his failure to obtain and keep such possession."

It was averred that after the execution of

the contracts Allen, the purchaser, had entered into possession of the various tracts of land, and so continued up to the time of the Commencement of the suit. The amount claimed was three annual instalments of interest on the deferred price which it was alleged had become due in February 1889, 1890, and 1891. The prayer of the complaint was that the defendant be condemned to pay the amount of these respective instalments within thirty days from the date of decree, and in the event of his failure to do so that himself, his representatives and assigns, "be forever barred and foreclosed of all claim, right, or interest in said lands and premises under and by virtue of said agreements, and be forever barred and foreclosed of all right to conveyance thereof, and that said contracts be declared null and void."

made by the plaintiff as to its title other
than those which were recited in the con-
tract; that the defendant had not lost the
opportunity to sell at an advanced price, as
alleged in the cross-complaint. As to the
title to the land embraced in the contracts,
the facts were found to be as follows:
"That the lands and premises therein de-
scribed were portions of the public domain
of the United States and were granted to
plaintiff by an act of the Congress of the
United States, entitled 'An Act Granting
Lands to Aid in the Construction of a Rail-
road and Telegraph Line from the States of
Missouri and Arkansas to the Pacific Coast,'
approved July 27, 1866. That all of said
lands, save sec. 5, in township 23 south,
range 19 east, M. D. M., are situated within
a belt more than 20 miles and less than 30
miles from plaintiff's railroad, generally
known as the indemnity belt; the said sec.
being within 20 miles of said railroad.

"That the loss to plaintiff of odd-numbered sections within said granted limits, i e., within 20 miles of said railroad, because of the various exceptions and reservations in said act provided for, is fully equal to all the odd-numbered sections within said indemnity belt.

"That on March 19, 1867, an order was made by the Secretary of the Interior of the United States withdrawing or purporting to withdraw from sale or settlement under the laws of the United States, all of said lands situated in said indemnity belt; and that on August 15, 1887, another order was made by said Secretary of the Interior, revoking, or purporting to revoke, said first-named order, and restoring said lands to the public do

The defendant, whilst admitting the execution of the contracts, denied that he had ever taken possession of any of the land, and charged that the contracts were void because at the time they were entered into and up to the time of the institution of the suit the seller had no ownership or interest of any [482]*kind in the land, and therefore that no obligation resulted to the buyer from the contracts. By way of cross-complaint it was alleged that the defendant had been induced to enter into the contracts by the false and fraudulent representations of the complainant that it had a title to or interest in the property; that, in consequence of the error of fact produced by these misrepresentations of the plaintiff, the defendant had paid the cash portion of the price and the interest in advance for one year on the deferred instalment; that, owing to the want of all title to or interest in the land on the part of the complain-main for the usual sale and settlement thereant, the defendant had been unable to take possession thereof, and that some time after the contracts were entered into the defendant had an opportunity to sell the land for a large advance over the amount which he had agreed to pay for it, which opportunity was lost in consequence of the discovery of the fact that the complainant had no title whatever to the property. The prayer of the cross-complaint was that the moneyed demand of the plaintiff be rejected; that the contracts be rescinded, and that there be a judgment against the plaintiff for the amount paid on account of the purchase price and for the damage which the defendant had suffered by reason of his failure to sell the property at an advanced price. The complainant put the cross-complaint at issue by denying that it had made any representations as to its title to or interest in the land except as stated in the contracts. It denied that at the time of the contracts it had no interest in the land, or that the defendant had been prevented from taking possession or had been prevented from selling at an advanced price because of a want of title. Upon these issues the case was heard by the trial court, which made a specific finding of fact embracing, among other matters, the following: That the contracts sued on had been entered into as alleged and the instalments claimed thereunder were due despite demand; that no representations had been

of. The first said order of withdrawal is set
forth in vol. - of 'Decisions of the Secretary
of the Interior' at p.-, and the said second
order in vol. 6 of said 'Decisions' at pp. 84-92;
and which said orders as so set forth are here
referred to, and make a part of this finding.
That plaintiff is the owner of said lands in
fee under the provisions of said act of Con-
gress; that patents or a patent therefor have
not yet been issued to plaintiff by the gov
ernment of the United States; that it has
not been finally determined that patents or
a patent shall not issue therefor, or for any
part thereof, but proceedings are now pend-
ing before the proper department of the gov-
ernment of the United States, instituted by
plaintiff, to obtain patents or a patent for[483]
said lands and premises, and the whole there-
of. That plaintiff has not been guilty of any
want of ordinary diligence in instituting or
prosecuting said proceedings to obtain said
patents or patent."

There was a decree allowing the prayer of the complaint and rejecting that of the crosscomplaint. On appeal the case was first heard in Department No. 1 of the supreme court of California, and the decree of the trial court was in part reversed. In accordance with the California practice the cause was transferred from the court in department to the court in banc, where the decree of the trial court was affirmed. (112 Cal.

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