Supreme Court of United States.
*285 Mr. James K. Redington and Mr. Samuel Field Phillips for plaintiff in error. Mr. Frederic D. McKenney was on the brief.
Mr. Charles K. Jenner for defendant in error. Mr. Louis Henry Legg was on the brief.
MR. JUSTICE FIELD, after stating the facts as above and referring to the act of Congress mentioned, reserving to the States, respectively, certain lands for university purposes and authorizing each of the States named to appoint commissioners for the selection and location of such lands, delivered the opinion of the court, as follows:
The contest between the parties to the premises in controversy arises from a claim made by each of them to a segregation of a portion of such lands for a homestead under the act of Congress of July 17, 1854, c. 84, 10 Stat. 305.
By the fourth section of that act it is provided: "That, in lieu of the two townships of land granted to the Territory of Oregon by the tenth section of the act of eighteen hundred and fifty, for universities, there shall be reserved to each of the Territories of Washington and Oregon two townships of land of thirty-six sections each, to be selected in legal subdivisions, for university purposes, under direction of the legislatures of said Territories, respectively."
On the 11th day of January, 1861, the legislative assembly of the Territory of Washington passed an act appointing a board of commissioners to select, locate, and dispose of lands *286 reserved for university purposes in the Territory of Washington by the act of Congress quoted.
It appears, from an examination of the proceedings, read in connection with the legislation of Congress and the action of the commissioners of the State, that a doubt was created as to the legality of the conveyance by the commissioners of the land in controversy, to John Ross, from the fact that previous to that conveyance one Lemuel J. Holgate had filed upon and entered, as a homestead, the land described, which was not cancelled until December 20, 1871. It appears that Holgate executed a relinquishment of his homestead entry upon the land previous to the execution by the commissioners of their conveyance of the same to John Ross. That relinquishment was executed and delivered in February, 1864, and the selection of lands by the university commissioners was on the 10th day of March, 1864. But it is contended by the plaintiff that the relinquishment was in effect a quitclaim from Holgate to Ross, as there was no provision for a voluntary relinquishment prior to May 14, 1880, and that the only way by which lands once filed on under the homestead acts could be restored to the public domain was either by lapse of time or by contest.
But this position is not sustained by the judgment of the Secretary of the Interior, nor was it in harmony with the rulings of the land department. In its legal effect the relinquishment by Holgate was to the United States.
Section 1 of the act of May 14, 1880, c. 89, 21 Stat. 140, provides "that when a preëmption, homestead, or timber culture claimant shall file a written relinquishment of his claim in the local land office, the land covered by such claim shall be held as open to settlement and entry without further action on the part of the Commissioner of the General Land Office;" and, as held by the Commissioner, the effect of the law was to give authority to local land officers to cancel the entry at once without awaiting the action of the Commissioner of the General Land Office as had been preceding that time its custom.
As stated by the Commissioner, it had previously been the *287 uniform practice of the land department to cancel entries on the voluntary relinquishment of the entryman, and it would be a strange doctrine to announce that a party did not have the right to relinquish any right that he had to or in any property, and that it was the intention of the government to compel its citizens to go to the expense and delay of a contest to extinguish an interest of another citizen who was willing to make a disclaimer of that interest.
He very justly remarks that the object of the homestead law was to furnish homes to the citizens of the government and to encourage the settlement of its public domain, and to make the accession of these homes as easy and cheap as possible, and not to wantonly and senselessly place obstructions in the way of such acquisition. He observed that it is the policy of the government to protect the rights of the homestead claimant while he is endeavoring to comply with the requirements of the law; but when the government becomes satisfied that there has been an abandonment of such right by the applicant, the entry will be cancelled, and the land will be subject to the reëntry of some one who will comply with the law, and that the question whether or not there has been an abandonment must be determined, like every other question of the kind, by evidence, and there certainly could be no higher or more convincing testimony than the testimony of the applicant himself, by a formal relinquishment of his rights to the land endorsed on his original receipt and filed in the land office. Secretary Teller well said that the fact that Holgate's relinquishment was not returned to and noted on the records of the land office until 1871 showed irregularity on the part of the local officers but could not affect the rights of the university.
It appearing, therefore, that the action of the board of university commissioners, in conveying to John Ross the land involved in this case, who subsequently conveyed it to Johan Brygger, under whose will the appellees claim title to the same, was in conformity with the act of Congress of July 17, 1854, 10 Stat. 305, § 4, and the amendatory act of March 14, 1864, c. 31, 13 Stat. 28, this court finds no error in the decision *288 of the Supreme Court of the State of Washington, and its judgment is hereby
Affirmed.
