Opinion — United States v. Poland

UNITED STATES v. POLAND. 221

Counsel for the United States.

UNITED STATES ». POLAND ET AL.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE

NINTH CIRCUIT.

No. 29. Argued November 19, 1919.—Decided January 5, 1920.

A bill to set aside a patent partly because of a false representation

alleged to have been made in an affidavit filed with the land officials,

held not sustainable upon the ground of fraud, it appearing from the

affidavit as set forth that the representation was not as alleged, and

the bill also showing that the fact in question was clearly disclosed

by the application and other entry papers. P. 224.

But where the facts alleged show that the patent was issued in violation

of law the bill states a case for cancellation. P. 227.

The Act of March 3, 1903, c. 1002, 32 Stat. 1028, in providing that

“no more than one hundred and sixty acres shall be entered in any

single body”’ by means of soldiers’ additional homestead rights, in

Alaska, while leaving the holder of several such rights free to exercise

all of them and to make as many entries as his rights will sustain,

prohibits him from using them to enter and acquire more than 160

acres in a single body, whether through one or more entries. P. 225.

This provision is wholly distinct from the provision of the same act

limiting entries to 160 rods along the shores of navigable waters and

reserving 80 rods of shore between claims. P. 227.

The defense of bona fide purchase must be set up and established

affirmatively by the defendant in a suit to set aside a patent. Jd.

One who without fraud has secured a patent, by means of soldiers’

additional homestead rights, which is canceled because issued in

violation of law, is free to exercise the rights by which it was ob-

tained, and, under the Act of June 16, 1880, c. 244, 21 Stat. 287, may

apply for repayment of the fees and commissions paid to the land

officers. P. 228.

231 Fed. Rep. 810, reversed.

THE case is stated in the opinion.

Mr. Assistant Attorney General Nebeker, with whom The

Solicitor General was on the brief, for the United States.

OCTOBER TERM, 1919.

Opinion of the Court. 251 U.S.

Mr. Ira Bronson and Mr. George H. Patrick, with whom

Mr. H. B. Jones was on the brief, for respondents. Among

the points presented by them was the following:

Assuming that the granting of the patent to survey

No. 242 resulted from a mistake of fact and law in the

minds of the officers of the Land Department, but without

any act of fraud on the part of the patentee, the complaint

is open to demurrer for want of an allegation of the return

or tender of the return of the consideration paid for the

entry. Act of June 16, 1880, ¢. 244, 21 Stat. 287; Brent v.

Bank of Washington, 10 Pet. 596, 615; State v. Morgan, 52

Arkansas, 157; State v. Snyder, 66 Texas, 700. United

States v. Trinidad Coal Co., 137 U. S. 160; Causey v.

United States, 240 U.S. 399, distinguished.

Mr. Justice VAN Devanter delivered the opinion of

the court.

This is a suit to cancel a fiatent issued to William B.

Poland for one hundred and sixty acres of land in Alaska,

the gravamen of the complaint being that by this and

another patent, both based upon soldiers’ additional

homestead rights, Poland acquired a single body of land

of larger acreage than was permitted by the statute under

which the patents were sought and issued. The defend-

ants, who were the patentee and another claiming under

him, separately demurred to the complaint, and the court

sustained the demurrers and dismissed the suit. That

decision was affirmed by the Circuit Court of Appeals, one

judge dissenting, 231 Fed. Rep. 810, and the case is here on

writ of certiorari.

Of course, it rested with Congress to determine whether,

when, and with what restrictions the general land laws

should be extended to Alaska. For many years there was

no affirmative action upon the subject. The first steps

consisted of limited extensions of the laws relating to

mining claims, ¢. 53, 23 Stat. 24, § 8, and town sites, c. 561,

UNITED STATES v. POLAND. 223

221. Opinion of the Court.

26 Stat. 1095, § 11; but with these we are not now con-

cerned. The homestead laws were the next to receive

attention. By the Act of May 14, 1898, ¢. 299, 30 Stat.

409, they were extended to that district with the restric-

tions (a) that “‘no homestead” should exceed eighty

acres in extent and (b) that ‘“‘no entry” should extend

more than eighty rods along the shore of any navigable

water, and along such shore a space of at least eighty

rods should be reserved from entry between all such

claims. And by the amendatory Act of March 3, 1903,

c. 1002, 32 Stat. 1028, the extension of the homestead

laws was repeated and confirmed, but with the qualifica-

tions (a) that an actual settler intending to comply with

the requirements in respect of continued residence,

cultivation, ete., should be entitled to enter three hundred

and twenty acres or a less quantity, (b) that ‘‘no more

than one hundred and sixty acres shall be entered in any

single body” by means of soldiers’ additional homestead

rights, and (c) that ‘‘no entry” should extend more than

one hundred and sixty rods along the shore of any nav-

igable water, and along such shore a space of at least

eighty rods should be reserved from entry between all

such claims. Further restrictions were imposed, but there

is no present need for noticing them.

The controversy here is over the meaning and purpose

of the provision that no more than one hundred and sixty

acres shall be entered in any gingle body by means of

soldiers’ additional homestead rights.

The material facts to be gathered from the complaint

are these: Poland, who was the assignee of certain soldiers’

additional homestead rights entitling their owner to enter

and acquire in the aggregate 319.75 acres, wished to use

them in entering and acquiring certain land in Alaska.

The regular public surveys had not been extended to that

locality, so he caused a special survey of the land to be

made at his expense, as was permitted by applicable

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OCTOBER TERM, 1919.

Opinion of the Court. 251 U.S.

regulations. 32 L. D. 424; 28 L. D. 149. By that survey

the land, which was in a compact or single body, was

divided into two tracts—one of 159.75 acres, designated as

survey No. 241, and the other of 160 acres, designated as

survey No. 242. As surveyed the north boundary of one

tract was the south boundary of the other, and this was

shown in the surveyor’s return. On April 26, 1906, after

the survey, he presented at the local land office two appli-

cations whereby he sought to make separate entries of the

two tracts with his soldiers’ additional rights—some of the

rights being used on one tract and the others on the other

tract. The applications were approved and passed to

entry and patent-—the patent for the 160 acres being issued

a considerable period after the other.

In these circumstances the complaint charges that the

319.75 acres, although surveyed in the form of two tracts,

were but a single body of land in the sense of the provision

in question; that the land officers in passing both applica-

tions to entry and patent acted upon a misconception of

the law and of their authority, and that in consequence the

later patent, whereby Poland’s acquisition was made to

exceed one hundred and sixty acres in a single body, was

issued in violation of law and should be canceled.

The complaint also contains an allegation that that

patent was fraudulently procured in that among the

proofs presented to the land officers was an affidavit

falsely representing, in effect, that the two tracts were

more than eighty rods apart, when in truth they were

adjoining tracts. But this allegation must be put out of

view, first, because the words of the affidavit as set forth

in the complaint do not sustain the pleader’s conclusion

as to what was represented, and, second, because the com-

plaint makes it certain that the application and other

entry papers clearly disclosed that the two tracts were

contiguous to the extent of having a common boundary

one-half mile in length.

UNITED STATES ». POLAND. 225

221. Opinion of the Court.

In approaching the consideration of the provision whose

meaning and purpose are in question it is well to recall

what soldiers’ additional homestead rights are and what

use could be made of them outside Alaska when the provi-

sion was adopted. They are rights to enter and acquire

unappropriated non-mineral public land without settle-

ment, residence, improvement or cultivation, and without

payment of any purchase price. They are not personal

to the original beneficiaries but are transferable at will,

and the number that may be assigned to the same person

is not limited. A single right is always for less, and gen-

erally much less, than one hundred and sixty acres, but

rights aggregating many times that number of acres may

be and often are held by a single assignee. When the

provision was adopted there were almost no restrictions

upon the use of such rights outside Alaska. Indeed, the

only restriction of any moment was one, uniformly re-

spected, preventing the inclusion of more than one hun-

dred and sixty acres in a single entry. But the number of

such entries that might be made by the same person was

not restricted, nor was there any limitation upon the

amount of land in a single body that might be entered in

that way. Thus an assignee having rights aggregating six

hundred and forty acres could use them in entering that

amount of land in a compact body one mile square, if

only he did so through four entries of one hundred and

sixty acres each. And, if he had rights the aggregate of

which was sufficient, he could in a like way enter a body

of land three miles square or even an entire township.

See Rev. Stats., §§ 2289, 2304, 2306; Webster v. Luther,

163 U.S. 331; Diamond Coal Co. v. United States, 233 U.S.

236, 243; Robinson v. Lundrigan, 227 U.S. 173, 178-179;

3 L. D. 472; 29 L. D. 599 and 643; 30 L. D. 285; 31 L. D.

441; 32 L. D. 418; 33 L. D. 225; 45 L. D. 236, 3d par.;

General Circular of 1904, pp. 11, 26-28.

With this understanding of the circumstances in which

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226 OCTOBER TERM, 1919.

Opinion of the Court. 251 U. 8S.

the provision was incorporated into the Act of 1903 ex-

tending the homestead laws to Alaska, we think the mean-

ing and purpose of the provision are manifest. It is in

form a proviso and says ‘‘no more than one hundred and

sixty acres shall be entered in any single body”’ by means

of soldiers’ additional homestead rights. A purpose to

prevent the use of these rights in entering a large acreage

in a single body hardly could be more plainly expressed.

There is nothing in the provision indicating that it is

concerned merely with what may be taken by a single

entry; and to construe it in that way would make it prac-

tically useless, for a large acreage in a single body still

could be taken by merely resorting to two or more entries.

Besides, the amount of land that could be taken by a

single entry had long been limited to one hundred and

sixty acres, and of course to say that no greater amount

should be taken in a single body by a single entry would

add nothing to that limitation. But the provision does not

speak of a single entry but only of the amount that may

be ‘‘entered in any single body,”’ and if it is to have any

real effect it must be construed according to the natural

import of its words; that is to say, as limiting the amount

of land in a compact or single body that may be entered by

means of soldiers’ additional homestead rights, whether

the entering be by one or several entries. We conclude

therefore that the provision, while leaving one who holds

several rights free to exercise all of them and to make as

many entries as his rights will sustain, prohibits him from

using them to enter and acquire more than one hundred

and sixty acres in a compact or single body.

The court in Alaska regarded the provision as suffi-

ciently like that relating to the area of placer mining

claims (Rev. Stats., §§ 2330, 2331) to require that it be

similarly construed. But we think there is a marked

difference between the two provisions. That in the placer

mining law says ‘‘no location’’ shall exceed a prescribed

UNITED STATES v. POLAND. 227

221. Opinion of the Court.

area anc it means, as the statute otherwise shows, that

no sing ie location shall include more.

The Circuit Court of Appeals was of opinion that ‘‘ what

the statute was seeking to protect was the shores of the

navigable waters of Alaska and not to prohibit the entry

of a tract of land of more than 160 acres.” In this the

court apparently confused the present provision, which op-

erates in the same way in all parts of Alaska, with another

and wholly distinct provision, which relates only to entries

along the shore. Their independence and the subjects

to which they relate are best shown by quoting both in the

order in which they appear in the statute, which we do —

‘‘And provided further that no more than one hun-

dred and sixty acres shall be entered in any single body

by . . .. soldier's additional homestead right.’

‘Provided, That no entry shall be allowed extending

more than one hundred and sixty rods along the shore of

any navigable water, and along such shore a space of at

least eighty rods shall be reserved from entry between all

such claims.”

There is in this case no question as to what distance

along the shore an entry may extend, cr as to what space

shall be reserved between claims along the shore, but only

a question as to whether making separate entries of lands

which in point of contiguity and compactness constitute a

single body of 319.75 acres is in contravention of the

provision first quoted, where both entries are by the same

person and are based upon soldiers’ additional homestead

rights. That question we answer in the affirmative for

the reasons before indicated.

It follows that, if the facts be as alleged in the com-

plaint, the second patent was issued in violation of law

and the Government is entitled to demand that it be can-

celed, unless, as is asserted in the brief for the defendants,

one of them is a bona fide purchaser. The complaint does

not show that he is such, and the rule is that this is an

228 OCTOBER TERM, 1919.

Syllabus. 251 U.S.

affirmative defense which he must set up and establish.

Wright-Blodgett Co. v. United States, 236 U.S. 397, 403;

Great Northern Ry. Co. v. Hower, 236 U.S. 702, 710.

If the patent is canceled Poland, or his assignee, will be

free to exercise the rights with which the patent was ob-

tained (see 6 L. D. 290 and 459), and also to ask repay-

ment under the Act of June 16, 1880, c. 244, 21 Stat. 287,

of the fees and commissions paid to the land officers.

Decree reversed.