Hutton v. Frisbie

By the Court, Sawyer, C. J. :

The questions arise upon demurrer to the complaint. The following and other subordinate facts are alleged. The allegations, for the purposes of our decision, must be assumed to be true.

On the 24th of March, 1862, the claim to the Soscol Bancho, under the Mexican grant to Vallejo, was rejected by the Supreme Court of the United States, and thereafter, till the passage of the Act of 1863, hereinafter considered, the lands embraced in said rancho, for the purposes of this decision, will be regarded as a part of the public domain of the United States to which the pre-emption laws applicable to the State of California extended. On the 16th of November, 1862, the plaintiff entered upon the Southwest Quarter of Section Twenty-five, Township Four North, Bange Four West, of Mount Diablo meridian and base, being in the County of Napa, and a part of said Soscol Bancho claimed under said grant. He claimed a pre-emption right under the laws of the United States, and, being competent to acquire such right, performed and offered to perform all the conditions prescribed by those laws, so far as they could then be performed. Some two weeks afterward, on the 1st of December, 1862, he was ejected from said premises by force by the defendants, who are purchasers under Vallejo, and he has. since been deterred by threats from continuing his settlement and improvements.

On the 3d of March, 1863, Congress, at the solicitation of defendants and other purchasers from Vallejo, the grantee in said rejected grant, passed a special Act, entitled “ An Act to grant the right of pre-emption to certain purchasers on the Soscol Bancho in California.” Under this Act, the Begister and Beeeiver of the Land Office took testimony as to the settlement and right of pre-emption of the several parties, including plaintiff, and determined their rights; and, on appeal the Secretary of the Interior finally decided, that the said Act of March 3d, 1863, withdrew the said lands , embraced in the Soscol Rancho, from the operation of the general pre-emption laws of the United States, and conferred the right of pre-emption to said lands upon the purchasers under Vallejo, claiming title under said rejected grant,1 and the defendants thereupon entered the said lands so claimed by them, and were about to receive a patent from the United States for the same, including the locus in quo, under the provisions of said Act of 1863.

The plaintiff, claiming to have acquired a pre-emption right under the general pre-emption laws before the passage of said Act of 1863, thereupon brought this suit, particularly setting forth in his complaint the foregoing and other minor facts, and asked that defendants might be restrained from selling or conveying any portion of said land; that he be adjudged to hold the same in trust for the benefit of plaintiff, and required to convey the same upon payment of the purchase money required by law, and that plaintiff be restored to the possession, etc.

The contest, therefore, arises under the general pre-emption laws of the United States, under which the plaintiff claims, and the said special Act of March 3d, 1863, giving a .special right of pre-emption for a period of twelve months after the return of the surveys to the bona fide purchasers from Vallejo, and their assigns, to the extent of the land which they have reduced to possession.

Two questions arise: Firstly—Does the Act of 1863 attempt to withdraw from the operation of the general pre-emption laws those lands upon which other parties after the rejection of the grant and before the passage of said Act had entered and made pre-emption claims, in accordance with the general pre-emption laws of the United States, and confer the pre-emption right to such lands upon the purchasers from Vallejo ? And secondly—If so, has Congress the power to so withdraw such lands, and cut off the pre-emption right after its inception, but before perfected by payment, and confer the right upon the purchasers from Vallejo ?

These are the two questions presented for our consideration, and relied on by the appellant, and we are of the opinion that both must receive an affirmative answer.

The circumstances under which the Act of Congress in question was passed are perfectly notorious, and constitute a part of the history of the State. Eighteen square leagues of land, known as the Soscol Rancho, were claimed under a Mexican grant to Vallejo. It had been divided up and conveyed and reconveyed in numerous parcels to large numbers of citizens of California, who had, to a large extent, reduced it to possession, cultivated it, placed upon it extensive and valuable improvements, and made it the permanent homes of themselves and their families, under the idea that they had a good title. Within its limits were the United States Uavy Yard at Mare Island, and the depot and extensive works of. the Pacific Mail Steamship Company; and two considerable cities had grown up on it, each of which had successively been the capital of the State of California—the inhabitants being purchasers and claimants under Vallejo. A large portion of the inhabitants of one populous county ando of portions of another claimed under, and relied on, title derived from Vallejo, After said lands had thus been occupied and improved, and large portions of them been conveyed and recouveyed for upwards of fifteen years, and the value been largely enhanced by the labor and money of those who thus claimed, in good faith, the grant, after having been confirmed by the Board of Land Commissioners, and the decree of confirmation affifmed by the District Court of the United States on appeal, was in 1862 rejected by the Supreme Court of the United States, which rejection had the effect, in the sorrowful, but forcible, and unfortunately too true language of Mr. Justice Grier, “to confiscate the property of some thousands of our fellow citizens who have purchased under this title and made improvements t.o the value of many millions, on suspicion first raised here as to the integrity of a grant universally acknowledged to be genuine in the country where it originated.’' (United States v. Vallejo, 1 Black, 555.) The obvious remedy for this wholesale confiscation did not escape the learned Justice named, for in the same opinion he expresses the hope, destined soon after to be realized in the passage of the said Act of 1863, “ that Congress will not suffer the very numerous purchasers to forfeit the millions expended on the faith of the treaty obligations.” (United States v. Vallejo, 1 Black, 558.)

Soon after the rejection of the grant a multitude of people rushed upon the lands which their neighbors had bought, paid for, improved, occupied, and cultivated for many years, and set up claims to one hundred sixty acres each, under the pre-emption laws of the United States. It "was in view of this condition of things, which is notorious in the political, civil, and judicial history of the State, that the Act of Congress of March 3d, 1863, was passed, and in the light of these surrounding circumstances must it be construed. The Act is entitled “An Act to grant the right of pre-emption to certain purchasers on the Soscol Rancho in California.” Section one provides for extending the lines of the public surveys over the rancho. Section two, “that after the return of such approved plats to the district office, itnnay and shall be lawful for individuals, bona fide purchasers from said Vallejo, or his assigns, to enter, according to the lines of the public surveys, at one dollar and twenty-five cents per acre, the laud so purchased, to the extent to which the same had been reduced to possession at the time of said adjudication of the Supreme Court, joint entries being admissible by coterminous proprietors to such extent as will enable them to adjust their respective boundaries.” Section three provides for the municipal claims of the two cities situate on the rancho. Section four, for presenting the claims to the Register and Receiver within twelve months after the return of the surveys, “accompanied by proof of bona fide purchase under Vallejo, of settlement, and the extent to which the tracts claimed had been reduced into possession at the time of said adjudication.” Section five provides that such claims as shall not be presented within twelve months “ shall be barred, and the lands covered thereby with any other tracts within the limits of said Soscol Rancho, the titles to which are not established under this Act, shall be dealt with as other public lands.” Then it prohibits the entry of lands reserved for public uses, etc. (12 U. S. Stats, at Large, 808.)

We shall freely admit, that, where the language of a private Act is doubtful or ambiguous, or admits of different meanings, that construction will be adopted which is most favorable to the public interests. We do not question the authorities cited on that point. But, in this case, we fail to perceive wherein the meaning of the statute in question, viewed in the light of the condition of things which induced its passage, is doubtful or ambiguous, or how the public interests will be promoted by allowing strangers, under the cloak of a law, the general letter of which, but not the spirit, by accident extends to a case which it would be a libel upon Congress to intimate, or for a moment suppose was ever intended to be embraced in its provisions, to intrude upon lands which others have cultivated and improved for many years, under the belief that they had a good title, protected by the solemn treaty of the Federal Government, and for which they have paid the full value, and to enter the same at a very small fraction of the present value given to it by such labor of others, rather than the party who has honestly labored upon and improved it, and by his labor and money imparted to it by far the greater portion of that present value. Nor do we question the rule adopted in Chotard v. Pope, 12 Wheat. 587, and Lytle v. The State of Arkansas, 9 How. U. S. 333, to the effect that when a party is authorized by an Act of Congress generally to enter “in any land office,” etc., “a quantity of land not exceeding,” etc., he must be limited in his selection to lands subject to location, and cannot take lands already sold, or reserved from sale, or upon which a pre-emption, or some other right, has attached under a law, which is still in force, and which “ covers ” and protects it. The rule is obviously sound. It cannot for a moment be supposed that Congress, by such general Acts, contemplated that the party should be authorized to take land upon which other parties had already entered and taken steps to acquire it, and were diligently pursuing their rights under Acts still in force with reference to that land, or that it intended in this general way to repeal such Acts. The two Acts in such cases are not necessarily inconsistent, and can be so construed in the mode adopted by the Court as to stand together; and in such cases it is obviously the duty of the Court so to construe them. But such is not the case with the Act we are now considering. We have already seen the condition of things which demanded the special remedy that was promptly given. A large number of citizens, who had paid those supposed to have the title under the Mexican grant and stipulations of the treaty with Mexico for the lands, who had spent years in improving them, were likely to be turned out by others, who, disregarding their equities, entered upon their cultivated fields, and availed themselves of the labors of such purchasers, under the cover of the general pre-emption laws, which, by their general terms, unfortunately embraced a case, as general laws sometimes necessarily do, never contemplated by Congress, and to the extent of the bona jitlc purchase, at least, never could by any possibility have been contemplated by any wise or just legislative body. The policy of the pre-emption laws was undoubtedly beneficent. They were intended to give those who were pioneers in the unsettled wilds of the public domain the first right to purchase the unoccupied lands which they have had the courage and hardihood to settle, and it will always be our pleasure as well as duty to extend to all such the utmost protection justified by the laws of the land. But this beneficent policy has no element in harmony with the principle that impelled men to rush in upon the improved possessions, and avail themselves of the labor of their neighbors, under the condition of things connected with the Soscol Rancho. The equities which lay at the foundation of the pre-emption policy were, in this particular instance, not with those who entered upon the possessions of such of their neighbors as were honest purchasers; but they were all, and even equities of a much higher obligation, with the purchasers in good faith, who were not merely pioneers, who had crossed the continent in search of homes, but, also, parties, who had paid for their lands, and long occupied and improved them, under the belief that they had a good title; and Congress hastened to recognize and give effect to those equities by passing the Act in question.

The object to be accomplished, was, to give those parties who had once paid for their lands the first right to purchase from the Government, at the usual price the lands which they had before actually purchased and paid for in good faith, to the extent to which they had reduced them to possession before their title had been declared void by the Supreme Court. To this end it was provided, that, “it may and shall be lawful for individuals, bona fide purchasers from Vallejo or his assigns, to enter, according to the lines of the public surveys, at one dollar and twenty-five cents per acre, the land so purchased, to the extent to which the same had been reduced to possession at the time of said adjudication,” etc.

We cannot presume that Congress was unaware that others had, before the passage of the Act, entered upon the former possessors with a view of acquiring the lands by pre-emption. We must presume that that body performed its great public duty, and informed itself fully of the true condition of things before taking final action upon a matter of so great public, as well as private, concern. Is it possible to doubt, in view of the condition of things which called for such legislation, and of the language of the Act passed, so well adapted to the exigencies of the case, that it was intended to give to the bona fide purchasers from Vallejo, and nobody else, the right to enter the lands so purchased to the full extent to which they had reduced them to possession at the time of the adjudication by the Supreme Court, provided they proceeded to perfect their right in the mode and within the time prescribed? Or could Congress, with any show, of justice, or decency, have done less? Others may doubt, but we cannot. The language is its own interpreter. It could not well be plainer. The next section is in strict harmony with this view. It directs the claimants under the Act, within a specified time, to present their claims, “accompanied by proof of bona fide purchase under Vallejo, of settlement and the extent to which the tracts claimed had been reduced to possession at the time of the adjudication.” Why this specific pointing out of the land, and requiring proof as to the extent of the possession, if, when so proved, it was not intended to allow an entry of the land, and of the whole so purchased, settled, and actually possessed? The language is special, and directed to particular individuals and specific lands, and it must be presumed that Congress intended that any prior general laws in conflict with its provisions must yield.

If Congress, instead of describing the land with reference to these defendants, in the language used in the Act, had said it may and shall be lawful for John B. Frisbie to enter, at one dollar twenty-five cents per acre, the southwest quarter of Section Numbered Twenty-five, in Township Numbered Four North, Range Numbered Four West, of Mount Diablo meridian and base, in the County of Napa and State of California, we apprehend that it would not have been contended that Congress did not intend to allow Frisbie to enter that particular piece of land, even if somebody else had, before the passage of the Act, gone upon it with a view of acquiring a pre-emption right. There would have been no possible room for doubt, because the equities in his favor entitled Mm to the consideration of Congress, and he was authorized, in accordance with such equities, to enter that specific piece of land. There would be no chance for selection. He must enter that and nothing else, and it would only be necessary to apply the description to the land to ascertain what specific tract of land was intended. But the description in the Act is just as specific as it is. The party who is entitled to enter the land must be a “ bona fide purchaser from Vallejo, or his assigns,” and the land which he is authorized to enter, is, “the land so purchased to the extent to which the same had been reduced to possession at the time of said adjudication of said Supreme Court.” We have only to apply these descriptions by ascertaining who is a bona fide purchaser from Vallejo, what land he purchased, and to what extent he had reduced it to possession at the time specified, and we have the party who is entitled to purchase, and the specific piece of land which he is entitled to enter, and he is entitled to enter no other under the Act. There is no opportunity for selection. The statute has made the selection for him. The description is just as specific as the one indicating the land as a certain quarter section, describing by number, township, and range. The language of the Act is not open to construction as to what land may be entered, and the difference between this case and those of Chotard v. Pope, and Lytle v. State of Arkansas, supra, where the parties were entitled to select lands from a much larger portion of the public domain, is so obvious that argument can scarcely make it appear more plain. Where an Act authorizes a party to enter any thousand acres of land he may select within specified exterior boundaries containing one hundred thousand acres, or in a whole State, and it happens that the Government has already sold a given tract within said boundaries, or a pre-emption right in favor of. another party has already attached to said particular tract under some prior law, it is not for a moment to be supposed that it was intended to permit an entry of the tract of land so sold, or upon which such prior right had already attached. But if he is authorized in express terms to enter the specific tract, and no other, before sold or upon which the pre-emption right had attached, there can be no doubt as to the intent to allow the entry of that specific tract, whether it was in the power of Congress to give effect to that intent or not. And that is just the difference between the cases cited and the one now under consideration.

Of course if Congress intended to give to the bona fide purchasers under Vallejo the first right to purchase, it did .not intend that strangers to that title should, also, have the first right to purchase the same land under the general preemption laws, for the two ideas are repugnant, and the last specific expression of the legislative will, if within the power of Congress so to enact, must prevail over the former general and inconsistent provisions of the statute.

We are of the opinion, therefore, that the Act in question withdraws the lands which were purchased bona fide from Vallejo and reduced to possession prior to the rejection of the Mexican grant from the operation of the general preemption laws, and confined the right to purchase within the restrictions prescribed in the Act upon such purchasers from Vallejo, or his assigns. We have expressed this view several times before, and should now have been content to refer to the cases of Hastings v. McGoogin, 27 Cal. 85 ; Page v. Hobbs, 27 Cal. 487; Page v. Fowler, 28 Cal. 609, and People v. Shearer, 30 Cal. 650, had not eminent counsel elaborately argued the question with great earnestness and apparent confidence, and fortified their position by a more recent decision, which seems to support their view, of a highly respectable Federal tribunal—the Supreme Court of the District of Columbia—in the case of Whitney v. Frisbie, arising under the same Act, involving the same questions, and decided since the publication of our own decisions in the cases cited. But, after a careful review of the question, we are satisfied with our conclusion before attained.

The only other question made by counsel is, did Congress have the power to withdraw these lands from the operation of the general pre-emption laws after a competent party had entered with an intent to claim a pre-emption right, and before the right could be perfected by payment or entry, but while the party was not in default? This presents the naked question of powef, not of the propriety of its exercise, conceding the existence of the power, nor of mere good faith. It is nothing less than a question of power. Congress having determined the question of policy, we have nothing to do with that question, and there is no occasion to discuss it. The naked question is, did Congress have the power to withdraw these lands under the circumstances from the operation of the general pre-emption laws? If so, it is our duty to give effect to the statute in question.

On this point, after stating the withdrawal of the lands of the Soscol Banclio from the operation of the general preemption laws, we said in Page v. Fowler, 28 Cal. 609: “And there can be no doubt, that Congress had the power to thus withdraw the lands from pre-emption and sale, under the general laws, at any time prior to the acquisition by the settler of a right to the lands that he could maintain against the United States, so as to secure ultimately the legal title.” And in People v. Shearer, 30 Cal. 650, in ascertaining the character of the interest which a pre-emption claimant has in the land, we expressed the opinion that the land in the occupancy of a pre-emption claimant, and to which a pre-emption right has attached, may be withdrawn from the operation of the preemption laws of Congress at any time before payment has been made for the same to the United States, and referred to Hastings v. McGoogin, and Page v. Hobbs, supra, in which the question was directly made, and, by implication at least, determined. "We also there expressed our approval of the opinion of Mr. Attorney General Speed on this point, given to the Secretary of the Interior for his guidance in disposing of the conflicting claims under the same Acts of Congress now under consideration, and in pursuance of which the Secretary of the Interior acted in making the decision which has given rise to this suit. (11 Opins. Attorneys General, 491.) Upon further consideration we find no reason to modify our views upon the question, but, on the contrary, we are fully satisfied of their entire soundness. Ho proprietary interest in the land, as against the United States, is acquired till payment. The parties embraced within the purview of the general pre-emption laws are simply authorized to enter the lands in preference to others, when the proper time comes, and the lands are thrown open for sale, on paying the purchase money in the mode prescribed. It is a general law designating the order of preference to be given to parties desiring to purchase, and a rule for the guidance of the officers of the Land Department in the disposition of the. public lands which they are not authorized to disregard without the authority of Congress. It is a mere privilege conferred, so far as the rights of the pre-emptioners are concerned, in case the lands should ever be offered for sale. But they may never be thrown upon the market. There is no right whatever given to have the lands ever open for sale. There is no contract between the pre-emptioner and the Government. There is no obligation on the part of the preemptioner to take the property, or of the Government to sell. The claimant may, at the last moment, abandon his pre-emption and locate another, or may decline to take any, and the Government cannot complain. There is no mutual obligation—none on either side. The Government is not bound to sell at all, until, in its discretion, it elects to do so. The statute simply designates the person who shall have the first privilege to enter while the statute remains in force, and when the land is thrown open to entry in the ordinary course of the sales of the public lands. The Government cannot be compelled to throw open the land for entry, or to permit an entry to be made, till in its own good time it sees fit to do so. The pre-emptioner has no contract obligation which he can in any way enforce. If all pre-emption laws should be repealed and never re-enacted, a party who has merely entered as a pre-emptioner, without payment, would have no right which he could enforce against the Government. He would have no action for damages, and could not compel the issuing of a patent by mandamus. If a party goes upon the public land with a view to pre-emption, he does so knowing that it may never be sold. The Acts of Congress do not present the Government in the character of a party making executory contracts, but in the character of a Government which will, when it determines to sell its. public lands, generally dispose of them in accordance with. certain rules established by itself. We have no doubt that it is competent for Congress, at anytime before the payment of the purchase money, to withdraw the land from sale, reserve it for its own use, or repeal all pre-emption laws, and take away any right of entry thereunder. The poioer exists. It is only a question of good faith and expediency. The right of pre-emptiou is a mere privilege, given for the time being, and, whatever the case may be with reference to other claimants, while the law is in force, not a right of property as against the Government, and it can be withdrawn at any time before it has been perfected into an obligation which can be enforced against the Government itself, and that is before a sale and payment. Such is the view taken by several Attorneys General of the United States as to when a right of property vests as against the Government. (See opinion of Mr. Attorney General Cushing on pre-emption claims, 8 Opins. Attorneys General, 71; opinion of Mr. Attorney General Bates, 10 Opins. Attorneys General, 57; opinion of Mr. Attorney General Speed, 11 Opins. Attorneys General, 491.) And such, we are satisfied, is the correct view. A similar view was taken in Bower v. Higbee, 9 Mo. 261; and in O’Hanlon v. Perry, 9 Mo. 808. So the United States Supreme Court very pointedly intimate a similar view in Hale v. Gaines, 22 How. 161, where, in speaking of the character of a pre-emption claim, it is said: “Percival had no vested interest in the land which a Court of Justice'could recognize. Then, the United States Government was the legal owner and had the power to reserve from sale.” And we know of nothing to the contrary in judicial decisions anywhere, other than the late case of Whitney v. Frisbie, referred to in this opinion. The language of the Act recognizing preemption rights is clearly not the language of grant, perfect or inchoate, nor of contract, nor obligation. It is simply permissive and directory. If the pre-emptioner acquires any right, as against the Government, before payment, it attaches from the very moment of entry upon the land with intent to claim a pre-emption right, and- thereafter it would be incompetent for Congress, or the Government of the United States, in any mode to increase the price, or change any condition of purchase, reserve the land for public use, take timber, minerals, stone, earth, or other thing from it, or do anything affecting the land, without the consent of the party who has thus entered, and who, unless an implied license can be inferred fronj the legislation on the subject, is himself a trespasser. While, on the contrary, the settler could enter upon the land, and after stripping it of timber, or other valuable thing, abandon it at pleasure, and repeat the process ad libitum, and the Government could claim nothing under the pretended contract, which is binding only on one side. The whole public domain, by the conferring of this simple privilege of'pre-emption, might thus be withdrawn from the power and control of Congress, under whose authority it is placed by the Federal Constitution. We do not think it was ever contemplated by Congress, in passing the pre-emption laws, that an entry upon the public lands, with a view of acquiring a pre-emption right, would give to the party entering a right, without any corresponding obligation to purchase,' which could not afterward be withdrawn, or in any degree varied, without the consent of such party, or that such is the effect of the pre-emption laws upon any reasonable interpretation. Such is not the express provision of those Acts, and if the construction is open to doubt, or in any degree ambiguous, we have already seen—and so appellants claim the rule to be with. respect to other points—that that construction must be adopted which is most favorable to the public interest, and, we apprehend, it will not be maintained that the public interest will best be promoted by subjecting the entire public domain to be withdrawn from the control of Congress upon such considerations. A pre-emption right is not an inchoate grant, nor, in any just sense, an inchoate title, as against the Government, whatever the rights of pre-emptioners may be as between individual claimants, while the pre-emption laws are unrepealed and still in force to “cover” the claim.

Several cases are cited from the. Supreme Court of the United States, by the learned Chief Justice of the Supreme Court of the District of Columbia, in the case before referred to, to sustain a different view, but, with the greatest respect for the opinion of that tribunal, and of such of our associates as adopt a similar view, as we conceive they do not touch the question. Thus, in United States v. Fitzgerald, 15 Pet. 407, the Court say: “It cannot be pretended that the land in controversy was reserved from sale hy any Act of- Congress, or by order of the President, under the direction of the Secretary of the Treasury to reserve it from sale several months after it had been actually sold and paid for could amount to such an order.” (15 Pet. 420.) Of course there could he no reservation “several months after it” [the land.] had been regularly actually sold and paid for. This is something more than a pre-emption right. The party had availed himself of the privilege conferred, and the contract of sale had been actually entered into and the money paid. The contract was executed on one side, at least. Thenceforth the purchaser was, in equity, the actual owner of the land, and the United States merely held the naked legal title, without any beneficial interest, in trust, for the benefit of the purchaser. The land was no longer a part of the public domain. (Carroll v. Safford, 3 How. U. S. 460; Astrom v. Hammond, 3 McLean, 108; Carroll v. Perry, 4 McLean, 26; Gwynne v. Niswanger, 15 Ohio, 368; Ross v. Supervisors Outagamie County, 12 Wis. 38; Goodlet v. Smithson, 5 Port. 246; People v. Shearer, 30 Cal. 648.) That case certainly contains nothing inconsistent with any view maintained in this opinion. The case of Lytle v. State of Arkansas, 9 How. 333, we have before cited, and it is wholly different from the present case. "We commented upon that case in People v. Shearer, 30 Cal. 653, and endeavored to show that it contained nothing to support the position maintained by appellants, and it is unnecessary here to repeat what we there said. We will remark in addition, however, upon the passage deemed so conclusive, quoted from the opinion of Mr. Justice McLean by Mr. Chief Justice Carter in Whitney v. Frisbie: “Until sanctioned by law, it [the pre-emption right] has no existence as a substantive right; but when covered by the law it becomes a legal right, subject to be defeated only by a failure to perform the conditions annexed to it.” Undoubtedly so. We fully subscribe to this view in the sense and connection in which it was stated by the learned Justice. He was speaking of a right as between adverse claimants, under two different statutes, both in force at the same time. Cloyes claimed a pre-emption right, which had vested under the pre-emption laws then in force. The State of Arkansas, under authority of another statute, general in its terms, to select and enter a certain amount of land—not to enter a specific tract—for public pur-' poses,.by its Governor selected the tract of land upon which Cloyes’ pre-emption right had attached. The Court very properly held, and as any other Court, doubtless, would have held, that the State of Arkansas was not authorized to select that land, because a pre-emption right had already attached under a law rohich was still in force, and not repealed; that the two Acts were not inconsistent, and could stand together —that it was not intended to permit the selection of such lands as were then incumbered with other rights, and that the law under which Cloyes claimed was still in force. His claim was, therefore, at that time “ covered by the law,” and protected by it. The right was given by a law then in force, and was, therefore, as between him and the other claimant, a legal right, and being thus “ covered by the law,” it could only be defeated by failure to perform the conditions. This was all that was said, or intended to be said. But suppose the statute under which Cloyes claimed had been repealed before the right had been perfected by payment, and before the passage of the other Act authorizing the State of Arkansas to enter the lands, then the pre-emption right of Cloyes would have been no longer “covered by the law,” and the conditions under which the learned Justice said it could not be defeated, except by failure to perform, would have ceased to exist. Or, suppose Congress to have authorized the State of Arkansas to enter that specific tract of land, describing it by lines of the public surveys, or in such other manner that it could be easily identified, which would necessarily have been inconsistent with Cloyes’ pre-emption right, and therefore have repealed it, and thus taken away the cover of the law, different questions would then have been presented, and one analogous to that now in hand. But the case is only authority for a pre-emption right “when covered by the law,” which is not this case; and since the learned Justice was so careful to limit his language to the case before him, which was so covered, we must infer that he was of opinion that a different rule would prevail when the right ceased to be “covered by the law.”

The case of Delassus v. United States, 9 Pet. 133, is the case of a Spanish grant protected by the treaty of purchase of Louisiana. It was the case of an inchoate title in the grantee himself, as against the Government, which had already made an incipient grant—a very different thing from a pre-emption right under the pre-emption laws of the United States, in which case the Government has not taken the first step toward making a grant. It has only prescribed a general rule for the government of all persons, and all its officers in the disposition of the public domain. Smith v. The United States, 10 Pet. 330, was a similar case, and Rice v. Railroad Company, 1 Black, 360, was, also, a case of grant for railroad purposes. Neither of these cases therefore affords any aid in the solution of the question now under consideration. If these cases were supposed to lend any support to the conclusions attained by the Supreme Court of the District of Columbia, with due deference, we are compelled to think their scope and bearing entirely misapprehended.

So the case of McAfee v. Keirn, 7 S. & M. 780, is a case where the pre-emption right, like that in Lytle v. State of Arkansas, was covered by a law then in force, and the patent to the other party was, therefore, issued by the officers of the Government without the authority of any law whatever. So the cases of Isaacs v. Steele, 3 Scam. 99, and Bruner et al. v. Manlove, 3 Scam. 341, and all others cited to sustain the same view, are cases of the same sort, and are in no respect inconsistent with anything contained in this opinion.

We are at a loss to understand, also, how that learned tribunal could come to the conclusion that the Act of 1863 limited the bona fide purchasers from Vallejo to an entry of one quarter section in one tract in case' of an interference with the claim of some pre-emptioner under the general preemption laws, in the face of the express provision that they might “ enter according to the lines of the public surveys * * * to the extent to which the same had been reduced to possession at the time of the adjudication of said Supreme Court,” and that they were to make proof of the “ extent to which the tracts claimed had been reduced to possession at the time,” etc. To our minds it seems clear enough that the bona fide purchasers under Vallejo and their assigns were authorized to enter all the lands purchased, to the full extent to which the same had been reduced to possession at the time of the rejection of the grant, be it more or less, and without regard to intruders on such possessions. Where a man had in good faith purchased and paid for a thousand acres, reduced it to possession, cultivated and improved it, till he had by his labor, money and inhabitancy increased its value two, three, four, or tenfold, as the case might be, the equities were just as strong in his favor as to the whole as though he had only purchased, improved, and thereby enhanced the value of one hundred sixty acres; and there would be just as little equity in allowing him to be deprived by a stranger of the fruits of his labor and expenditures, under the cloak of the general pre-emption laws, wtiich could never have been intended to embrace such a case, of the excess ovar one quarter section; and the language of the statute, it seems to us, authorizes an entry of all which had been reduced to possession. The object was to relieve what Mr. Justice Greer so feelingly calls a confiscation, and this object could only be accomplished by allowing the purchasers to enter all, at least, that had been reduced to possession and materially enhanced in value by their labor. The land must, of course, be entered according to the lines of the public surveys, because all lands are so entered. The very object of the public surveys is to have a convenient, systematic, uniform, and certain mode. The reason for allowing joint entries by coterminous proprietors is obvious enough. The object is, in fact, expressed, “to enable them to adjust their respective boundaries,” not to limit the amount which any one purchaser from Vallejo shall be permitted to enter. The smallest subdivision which can be entered under the system of surveys adopted by Congress is the sixteenth of a section, or forty acres. The purchases from Vallejo were made long before the Government surveys were made, and without reference to such surveys. It might often happen, therefore, that a forty or eighty acre tract would so fall as to embrace portions of lands held and possessed by two or more purchasers from Vallejo. As neither would be entitled to enter the whole, and as they must enter according to the lines of the survey, or not at all, neither could enter his own share alone; hence, in such cases, to enable the parties to enter all they had respectively purchased and reduced to possession, and to afterward adjust their boundaries between themselves, they were authorized to enter such tracts jointly.

We are unable to derive from these provisions any support to the idea that each purchaser from Vallejo must be •limited to a quarter section in case of any interference with an intruder upon his possession claiming a pre-emption right under the general laws. On the contrary, they seem to us to support the opposite view, so far as any argument bearing on the point can be derived from them. It shows that nothing purchased and possessed in good faith was intended to be lost to them.

These are the great questions in the case upon which the rights of the parties to this action must turn, and the only points presented by appellant’s counsel for our consideration, and on these points we should have entertained little doubt had not the learned Justices of the Supreme Court of the District of Columbia, and two of our associates, as to one point, entertained a different opinion. Our respect for that tribunal, and for the opinions of our brethren, has led us to reconsider the questions with care; but with deference to the views of those who have reached a different result, upon further consideration, aided by the elaborate opposing opinions, and the very elaborate arguments of the eminent counsel engaged on the part of appellant, our former views are fully confirmed.

It is understood that the case of Whitney v. Frisbie, has been taken to the Supreme Court of the United States for review, on a writ of error. As the decision of that tribunal upon the questions involved would be authoritative and binding upon us, we were in hopes that there would have been an early decision, and we have delayed the decision in this case on that account. But we have satisfied ourselves that a decision in that case' cannot be expected for a long time to come, and we do not feel justified in any longer delay. As both parties claim a right under a statute of the United States, the decision in any event must be against a right claimed under a law of Congress, and our decision can doubtless be reviewed by the Supreme Court of the United States. Since we entertain a different view from that taken by the Supreme Court of the District of Columbia and two of our associates, it is gratifying to know that there is an arbiter between us in the Supreme Court of the United States, and that, if we are in the wrong, our error can be corrected and justice be awarded by that august tribunal.

Judgment affirmed.