to the existing state of the title to the lands, the vendor selling his hope of obtaining title and the vendee buying such expectation; that the result of the contract was that the vendor in advance agreed to sell such title, [490]if any, as he might obtain *in the future, and that the vendee agreed for the sake of obtaining in advance the right to the title, if the vendor could procure it, to pay the amount agreed upon, subject to the return of the price in the event it should be finally determined that the hope of title in the vendor, as to which both parties were fully informed, should prove to be illusory. On these subjects the court said:

"The defendant further contends that the contracts were void ab initio, for want of mutuality or consideration, or amounted at most to mere offer to purchase on his part. This contention cannot be sustained. Plaintiff claimed title to these lands, but its title had not been perfected by patent. Defendant had the same opportunity as plaintiff of knowing the nature and probable validity of that claim. Under these circumstances plaintiff agree to convey to defendant when it should obtain a patent, and to permit defendant to enter into possession of the land at once. In consideration of these premises defendant agreed to purchase when a patent should be issued, paid at once one fifth of the purchase price and one year's interest on the balance and agreed to pay the remainder (with interest thereon annually in advance) on or before a given date, with the right to a repayment without interest in the event of an ultimate failure to obtain a patent. These promises were strictly mutual, and each constituted a sufficient consideration for the other. Plaintiff by its contract surrendered its right to contract with or sell to any one else, and yielded to defendant the present right to possession which it claimed. These concessions were clearly a detriment to plaintiff, and, in a legal sense, an advantage to defendant; and they, therefore, furnish a consideration for defendant's promise to pay."

Upon the question of the final determination of the hope of title upon which the return of the price was by the contract made to depend, the court concluded as follows:

"The only question really involved in the case is as to the construction of the contracts sued upon. It is contended by the defendant that he was under no obligation to purchase the land or to pay the remainder of the pur[491]chase price, unless the plaintiff should, with

in the five years, obtain a patent for the land; and that, as the plaintiff had failed to obtain a patent within that time, and as the action was not tried until after the expiration of that time, the defendant was entitled to a rescission of the contract. But clearly the contracts will not bear any such construction. The defendant contracted unconditionally to pay the remainder of the purchase price on or before' a certain day named, and to pay interest annually in advance on the remainder; but the plaintiff contracted to convey to defendant only 'upon the receipt of a patent,' and was to repay the money only 'in case it be finally deter

mined that patent shall not issue.' The defendant, therefore, was not entitled to terminate the contract or to require a repayment of the moneys paid, until the question of the issue of a patent to the plaintiff should be 'finally determined.' The findings state that proceedings are now pending in the United States Land Department for the issue of patent to the plaintiff, and that it has not been finally determined that such patent shall not issue. At the time, therefore, at which defendant contracted to pay the balance of the purchase price, plaintiff was not in default, nor was it in default at the time of the trial."

We cannot say that the state court has erroneously construed the act of Congress, since its decree rests alone upon the conclusion reached by it, that by the contracts between the parties there existed a right to recover, whatever may have been the existing state of the title. The conclusion that the parties were competent, to contract with reference to an expectancy of title involved no Federal question. The decision that the final determination of title, referred to in the contracts, related to the proceedings in the Land Department which were pending at the time the contracts were entered into and not to the cancelation by the Secretary of the Interior of the withdrawal order, which had been made by that officer before the date of the contracts, precludes the conception that the state court erroneously denied the legal consequence flowing from the order of withdrawal. It follows then that as the decree of the court below was adequately *sustained[492] by an independent non-Federal question, there is no issue presented on the record which we have the power to review, and the cause is therefore dismissed for want of ju risdiction.




(See S. C. Reporter's ed. 492-500.)

Jurisdiction of the court of claims-act of June 16, 1880-recovery back of moneys paid for public lands.




The court of claims has jurisdiction by the act of March 3, 1887, of a claim founded upon the act of June 16, 1880, for the repayment of $1.25 per acre to the purchaser of public lands for which he has paid double minimum price, which have been found afterwards not to be within the limits of a railroad land grant.

The act of 1880 refers to a mistake in location when the entry was made.

Where, at the time the entry was made and the double minimum price paid for the lands, they were within the place limits of a railroad grant, and eighteen years thereafter the lands were forfeited to the government because the railroad was not built, the purchaser cannot recover back from the government the $1.25 per acre under the act of 1880.

[No. 225.]

Argued March 17, 1899. Decided April 3, 1899.


PPEAL from a judgment of the Court of Claims dismissing for want of jurisdiction the claim of Lucetta R. Medbury against the United States for the recovery back of half the double minimum price paid for public lands entered when they were within the limits of a railroad land grant which was afterwards forfeited. Judgment modified and as modified affirmed.

Statement by Mr. Justice Peckham: The appellant herein filed her petition in the court of claims and sought to recover judgment by virtue of the provisions of the act approved June 16, 1880, chap. 244 (21 Stat. at L. 287).


The Attorney General denied all the allegations of the petition, and the case tried by the court upon the following agreed statement of facts: Congress made a grant of lands to the Wisconsin Central Railroad Company by the act of May 5, 1864, chap. 80 (13 Stat. at L. 66), which contained the condition that the railroad should be built as therein provided. After the grant the price of the lands reserved within its place limits [493] was raised from $1.25 per acre to $2.50 *per acre under the authority of law and by the direction of the Secretary of the Interior. In 1872, one Samuel Medbury made an entry of more than seven thousand acres of land, within the place limits of that grant and at the double minimum price of $2.50 per acre, and he died in 1874, leaving his widow, the appellant herein, and a son and daughter, who subsequently conveyed to the appellant all their interest in the claim herein made.

The conditions upon which the grant of lands was made to that particular section of the proposed railroad were never complied with and the proposed railroad was never constructed, for which reason the grant was by the act of Congress of September 29, 1890 (26 Stat. at L. 496), forfeited to the United States. By reason of this failure to build the railroad, and because of the forfeiture of the land grant by Congress, the lands purchased by Medbury ceased to be alternate sections of land within a railroad land grant, although they were such when he purchased them. Thereafter, and on the 14th of November, 1894, Lucetta R. Medbury, as the widow and heir of Samuel Medbury, made application to the Secretary of the Interior for the repayment of the excess of $1.25 per acre upon the seven thousand and odd acres of land entered by her husband, the application being made under the second section of the act of June 16, 1880, chap. 244 (21 Stat. at L. 287), and on October 5, 1897, the application was denied by the Secretary. Upon these findings of fact the court of claims decided, as a conclusion of law, that the petition should be dismissed for want of jurisdiction. From that decision the claimant has appealed to this court.

Mr. George Hines Gorman and Louis A. Pradt, Assistant Attorney General, for appellee:

The court of claims had no jurisdiction to entertain this action for the reason that the same is founded solely and exclusively upon a legislative act, which provides the remedy and the manner of its enforcement at the same time that it creates the right; and the right so created can only be enforced in the exact manner provided in the statute.

Wells v. Pontotoc County Supers. 102 U. S. 625, 26 L. ed. 122; Janney v. Buell, 55 Ala. 408; Phillips v. Ash, 63 Ala. 414; Hollister v. Hollister Bank, 2 Keyes, 245; Dickinson v. Van Wormer, 39 Mich. 141; Sutherland, Stat. Constr.

The creation of a new jurisdiction is not to be presumed, in the absence of adequate language.

Warwick v. White, Bumb. 106; Kite's Case, 1 Barn. & C. 107; Reg. v. Baines, 2 Ld. Raym. 1269; Ex parte Story, L. R. 3 Q. B. Div. 166; James v. Southwestern R. Co. L. R. 7 Exch. 296; Streat v. Rothschild, 12 Daly, 95; Re Contested Election of McNeill, 111 Pa. 235; Druse v. Horter, 57 Wis. 644; Re Hersom, 39 Me. 476; Pitman v. Flint, 10 Pick. 506.

Nor will a construction be adopted which enlarges the jurisdiction of courts, in the absence of express words or necessary implica


Ex parte Story, L. R. 3 Q. B. Div. 166; Kite's Case, 1 Barn. & C. 107; Thomas v. Adams, 2 Port. (Ala.) 188; Grove v. School Inspectors, 20 Ill. 532; Thompson v. Cox, 53 N. C. (8 Jones, L.) 311; Druse v. Horter, 57 Wis. 644; Daffin v. State, 11 Tex. App. 76.

Nothing is to be taken by intendment, and only such jurisdiction is given as is set forth plainly and expressly.

Clyde v. United States, 13 Wall. 39, 20 L. ed. 481; Finn v. United States, 123 U. S. 227, 31 L. ed. 128; Schillinger v. United States, 155 U. S. 163, 39 L. ed. 108; Ex parte Greene, 29 Ala. 61.

Statutes which create liabilities where none existed before are always strictly construed, and the liability will never be extended beyond the plain and express provisions of the statute.

Re Hollister Bank, 27 N. Y. 393; Cohn v. Neeves, 40 Wis. 393; Moyer v. Pennsylvania Slate Co. 71 Pa. 293; Lane's Appeal, 105 Pa. 49, 51 Am. Rep. 166; Detroit v. Chaffee, 70 Mich. 80; Detroit v. Putnam, 45 Mich. 265.

The language of the statute is not general but special, and limited to the Secretary of the Interior and the General Land Office. But even if it had been general, it should be remembered that language though apparently general, may be limited in its operation and effect, where it may be gathered from the object and purpose of the whole statute that the language was designed to apply only to certain persons or things, or was to operate only under certain conditions or to be enforced only by certain officers. McKee v. United States, 164 U. S. 287, 41 Messrs. Russell Duane, Harvey Spald- | L. ed. 437; Jones v. Jones, 18 Me. 308; Muring, and E. W. Spalding for appellant. ray v. Gibson, 15 How. 421, 14 L. ed. 755;

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Brewer v. Blougher, 14 Pet. 198, 10 L. ed. | 417; United States v. Saunders, 22 Wall. 492, 22 L. ed. 736; Torrance v. McDougald, 12 Ga. 526; Greenhow v. James, 80 Va. 636. [493] *Mr. Justice Peckham, after stating the facts, delivered the opinion of the court: Two questions arise in this case: (1) Whether the court of claims had jurisdiction of the claim; and (2) whether, if it had, what is the true construction of the act of June 16, 1880, requiring the repayment to the purchaser of the excess of $1.25 per acre [494]* where the land purchased has afterwards been found not to be within the limits of a railroad land grant.

The ground upon which the learned court of claims decided that it had no jurisdiction in the case was that the remedy afforded by the act of 1880 to obtain the repayment of the excess of the price was exclusive of any other. Thus if the Secretary of the Interior erroneously construed the act and refused payment in a case where the claimant was justly entitled thereto, under its provisions, the claimant would be without redress, even though there were no dispute in regard to the facts, and the decision of the Secretary was a plain mistake in regard to the law. In this construction as to the jurisdiction of the court of claims, we are unable to agree.

The first section of the act of June 16, 1880, chap. 244, does not refer to such a case as this. Section 2 of that act reads in full as follows:

"In all cases where homestead or timber culture or desert land entries or other entries of public lands have heretofore or shall hereafter be canceled for conflict, or where, from any cause, the entry has been erroneously allowed and cannot be confirmed, the Secretary of the Interior shall cause to be repaid to the person who made such entry, or to his heirs or assigns, the fees and commissions, amount of purchase money and excesses paid upon the same, upon the surrender of the duplicate receipt and the execution of a proper relinquishment of all claims to said land, whenever such entry shall have been duly canceled by the Commissioner of the General Land Office, and in all cases where parties have paid double the minimum price for land which has afterwards been found not to be within the limits of a railroad land grant, the excess of one dollar and twenty-five cents per acre shall in like manner be repaid to the purchaser thereof, or to his heirs or assigns."

Section 3 authorizes the Secretary of the
Interior to make the payments provided for
in the act out of any money in the Treasury
rot otherwise appropriated, and by section 4
the Secretary is authorized to draw his war-
rant on the Treasury in order to carry the
provisions of the act into effect.
[495] *The portion of section 2, which is in ital-
ics, is the part of the act upon which this
claim is founded. The question is whether
the court of claims has jurisdiction in this
case upon the facts found.

By the act of March 3, 1887 (24 Stat. at
L. 505), the court of claims is given juris-

diction to hear and determine, among other
things, all claims founded upon any law of
Congress. As the claim in this case is
founded upon the law of Congress of 1880,
it would seem that under this grant of ju-
risdiction the court of claims had power to
hear and determine the claim in question.
The act of 1887 was not, however, the first
act giving jurisdiction to the court of claims
in regard to a law of Congress. It had the
same power when the case of Nichols v. Unit-
cd States, 7 Wall. 122 [19: 125], was de-
cided, and a question of jurisdiction arose in
that case. It there appeared that Nichols
& Company were merchants in New York,
and they made in 1847 an importation from
abroad upon which duties were imposed on
the quantity invoiced. The importation con-
sisted of casks of liquor, and a portion of
the liquor had leaked out during the voyage,
and was thus lost, and consequently was never
imported in fact into the United States. Not-
withstanding these circumstances Nichols &
Company paid the duties as imposed under
the invoice, and without any deduction for
leakage, and made no protest in the matter.
An act of Congress of February 26, 1845,
provided that no action should be maintained
against any collector to recover duties paid
unless a protest had been made in
writing and signed by the claimant at the
time of the payment. Where a protest
had been made the importer could thereafter
bring a suit against the collector for a recov-
ery of the money so paid, and the suit would
be tried in due course of law. The importers
having made no protest, and being therefore
unable under the provisions of the law to
bring suit against the collector, brought suit
in the court of claims to recover back the
overpayment, upon the ground that the court
had power to hear and determine all claims
founded upon any law of Congress, or upon
any regulation of the executive department,
or upon any contract, express or implied,
with the government of the United States.[496]
This court held that the court of claims had
no jurisdiction, and in the course of the opin-
ion of the court, which was delivered by Mr.
Justice Davis, and in giving the grounds
upon which the court denied jurisdiction, it
was said:

"Congress has from time to time passed laws on the subject of revenue, which not only provide for the manner of its collection, but also point out a way in which errors can be corrected. These laws constitute a system which Congress has provided for the benefit of those persons who complain of illegal assessments of taxes and illegal exactions of duties. In the administration of the tariff laws, as we have seen, the Secretary of the Treasury decides what is due on a specific importation of goods, but if the importer is dissatisfied with this decision, he can contest the question in a suit against the collector, if, before he pays the duties, he tells the officers of the law, in writing, why he objects to their payment."

And again the court said:

"Can it be supposed that Congress, after having carefully constructed a revenue sys'tem, with ample provisions to redress wrong,

intended to give to the taxpayer and importer a further and different remedy? The mischiefs that would result, if the aggrieved party could disregard the provisions in the system designed expressly for his security and benefit, and sue at any time in the court of claims, forbid the idea that Congress intended to allow any other modes to redress a supposed wrong, in the operation of the revenue laws, than such as are particularly given by those laws."

The system spoken of in the opinion provided a general scheme for the collection of the revenue, and also provided adequate means for the correction of errors by a resort to a suit in a court of law prosecuted in the ordinary way. While it gave rights, it provided a special but full and ample remedy for their infringement. It certainly could never be presumed that Congress, while thus furnishing an adequate method for the correction of errors, intended that the party aggrieved might refuse to follow such remedy and resort to some other and different mode of relief. It is quite plain that the remedy thus specially indicated was exclusive, and [497]that the act giving *jurisdiction to the court of claims had no application. The principle asserted in the case cited has no application to this case.

wronged has his remedy, but that remedy is not furnished by the same statute which gives him the right.

If there were any disputed questions of fact before the Secretary his decision in regard to those matters would probably be concla-[495, sive, and would not be reviewed in any court. But where, as in this case, there is no dieputed question of fact, and the decision turns exclusively upon the proper construction of the act of Congress, the decision of the Seeretary refusing to make the payment is not final, and the court of claims has jurisdie tion of such a case.

We have been referred to no case in this court which holds views contrary to those herein presented. We do not mean by this de cision to overrule or to throw doubt upon the general principle that where a special right is given by statute, and in that statute a special remedy for its violation is provided, that in such case the statutory remedy is the only one, but we hold that such principle has no application to this particular statute, be cause the statute does not, in our judgment, within the meaning of the principle mentioned, furnish a remedy for a refusal to grant the right given by the statute.

This case bears more resemblance to United States v. Kaufman, 96 U. S. 567 (24: 792]; and United States v. Real Estate bar ings Bank, 104 U. S. 728 [26: 908], than it does to Nichols v. United States, 7 Wail 122 [19: 125].

Although the right to recover back the excess of payment in this proceeding is based upon the statute of 1880, we do not think it comes within the principle of those cases which hold that where a liability and a rem- In United States v. American Tobacco Com edy are created by the same statute, the rem-pany, 166 U. S. 468 [41: 1081], the statute edy thus provided is special and exclusive. permitted the holder of stamps which he had In this case it is not a right and a remedy paid for and not used, and which were spoiled created by the same statute. The statute or destroyed, etc., to apply to the Commis creates the right to have repayment under sioner of Internal Revenue to redeem or make the facts therein stated, but it gives no rem- allowance for such stamps. Application was edy for a refusal on the part of the Secretary so made, but the Commissioner refused to re to comply with its provisions. The person deem or make the allowance because of other has the right under the act to obtain a war- facts stated in the case. The applicant fled rant from the Secretary of the Interior for his petition in the court of claims, and that the repayment of the excess therein men- court gave him judgment which was here aftioned, and for the purpose of obtaining it he firmed. It is true that no question of juris must make his application and prove the facts diction was raised, but if the case at bar was which the statute provides, and then the Sec- properly decided by the court below, the coart retary is to draw his warrant on the Treas- in that case had no jurisdiction, because the ury. This constitutes the right of the ap- right to obtain redemption or payment was pellant. Applying for the warrant is not a given by the same statute which prov.ed remedy. When application for repayment is the procedure to secure it, and the so-called made there is nothing to remedy. He has remedy would have been exclusive in that not been wronged. A right of repayment of case, as it is held to be exclusive in this money theretofore paid has been given by the The party had to apply to the Commissi net act, but it is only under the act that the and to comply with regulations, etc., all of right exists, and that right is to have the which was but a part of the right which was Secretary in a proper case issue his warrant granted, and when the Commissioner erro» 499 in payment of the claim, and until he refuses neously refused to make the redemption as to do so, no wrong is done and no case for a provided for by the statute, the claimart, remedy is presented. After the refusal, the founding his claim upon a law of Congress, question then arises as to the remedy, and pursued his only remedy in the court of cia.m you look in vain for any in the act itself. and obtained it without any question of saWe cannot suppose that Congress intended risdiction. We think the court had jurisce in such case to make the decision of the Sec- tion in that case, and that it also existed in retary final when it was made on undisputed this. facts. If not, then there is a remedy in the court of claims, for none is given in the act which creates the right. The procedure for obtaining the repayment as provided for in the act must be followed, and when the application is erroneously refused, the party

We come now to the question as to the true construction of the act itself, and whether it is applicable to the facts in this case.

It is conceded by the appellant that at the time the entry was made and the double min imum price paid for the lands, they were

different reason. The petition should have
been dismissed upon the merits, but we do
not think it necessary to reverse the judg
ment on that account, as we can modify it so
that it shall provide for dismissing the peti-
tion on that ground.

Judgment modified, and as modified af



within the place limits of the grant to the Wisconsin Central Railroad. The payment therefore was a proper payment, and necessary to have been made in order to obtain the lands. There was no mistake or misunderstanding of the facts at the time the entry was made. It was made eight years after the passage of the land grant by Congress, May 5, 1864, and at the time the payment was made the railroad had not been built. The government of course was no guarantor JOHN W. BLYTHE and Henry T. Blythe,[501] that the railroad ever would be built, and the party thus making an entry of lands within the place limits of a railroad grant necessarily took his chances of the future building of the road. That it was not certain to be built was sufficiently apparent at the time of the entry, for eight years had then elapsed, and no road had been built at that time. It was not until eighteen years after the entry, viz., in 1890, that the government finally forfeited the lands because of the failure of the company to build the road. With reference to these facts, we think that the construction placed upon the act of 1880 by the Secretary of the Interior is the correct one.

The Secretary decided that the act does not apply to a case such as this, where at the time of the entry the lands were within the limits of the railroad land grant, and so continued for eighteen years, and where it was only by the failure of the railroad company to build the road and the forfeiture of the land grant by the government consequent upon such failure that the land then ceased to be within such limits.

Whatever may have been the reason of Congress in making the charge of $2.50 per acre the minimum price for alternate sections along the line of railroads within the place limits of the grant, the meaning of the act of 1880 is not in anywise affected thereby. That act plainly referred to the case of a mistake in location at the time when the entry was made. Where the parties supposed that the land entered was within the limits of the land grant, and where subsequently it is discovered that the lands were not within those limits, that a mistake had been made and that the party had not obtained the lands which he thought he was obtaining by virtue of his entry, then the act of 1880 applies.


(See S. C. Reporter's ed. 501-508.)

Appeal or writ of error'from circuit court to
this court on question of jurisdiction—de-
cision that remedy is in law, and not in
equity, not a decision as to jurisdiction—
decision that judgment of state court was
a bar--appeal cannot be taken to this
court where there is no denial of its ju
risdiction or the decree rests on inde-
pendent grounds.

[blocks in formation]



The decree of the circuit court dismissing the suit on the ground that the judgment of the state court was a bar and could not be reviewed by that court is not a decision of want of jurisdiction because the circuit court was a Federal court, but a decision that it was unable to grant relief because of the judgment of the state court.

An appeal cannot be taken to this court where the decree of the circuit court rested on no denial of its jurisdiction as such, but was rendered in the exercise of that jurisdiction, and the decree also rested on the independent ground that the remedy was at law.

Here no mistake whatever has been made. The lands were within the limits of the land Submitted grant at the time of the entry, and so remained for many years and up to the time of the act of forfeiture by Congress. Whether the railroad would fulfil its obligations and

in good time build its road through the land grant was a matter which the future alone could determine, was a matter which the entryman could judge of as well as the government, and was a matter in regard to which the government gave no guaranty, express or implied. Hence, when in subsequent years the company failed to build its railroad within the limits of the land grant at this point, and the same was forfeited, the government was under no obligations whatever by virtue of the act of 1880 or otherwise to repay the difference in price for these lands. While we agree with the Court of Claims in the dismissal of the petition, it is for a

[No. 367.]

January 30, 1899. Decided
April 3, 1899.

PPEAL from a decree of the Circuit

A Court of the United States for the

Northern District of California in a suit in
equity brought by John W. Blythe et al.,
plaintiffs, against Florence Blythe Hinckley
et al., to quiet the plaintiffs' title to certain
real property claimed to belong to plaintiffs.
On motion to dismiss or affirm. Dismissed.
See same case below, 84 Fed. Rep. 246.

Statement by Mr. Chief Justice Fuller:
This was a "complaint to quiet title,"
brought in accordance with the Code of Civil
Procedure of California by John W. Blythe
and Henry T. Blythe, citizens of the States
of Kentucky and Arkansas, respectively,
against Florence Blythe Hinckley, Freder-

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