ERROR TO THE SUPREME COURT OF THE STATE OF MONTANA
Fuller, Harlan, Brewer, Peckham, McKenna, Holmes, Day, Moody; Justice White took no part in the decision of this case.
MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.
Plaintiff rests his case on the contention that in the conclusions of the Secretary of the Interior there was error in matter of law, inasmuch as it is well settled that in the absence of fraud or imposition the findings of the Land Department on matters of fact are conclusive upon the courts. Johnson v. Towsley, 13 Wall. 72; Lee v. Johnson, 116 U.S. 48; Lake Superior &c. Co. v. Cunningham, 155 U.S. 354, 375; Burfenning v. Chicago, St. Paul &c. Railway, 163 U.S. 321, 323; Gonzales v. French, 164 U.S. 338; Johnson v. Drew, 171 U.S. 93, 99.
He also invokes the authority of Noble v. Union River Logging Railroad, 147 U.S. 165, 176, to the effect that when by the action of the Department a right of property has become vested in an applicant it can be taken away only by a
proceeding directly for that purpose, and contends that his right to the land was determined by certain findings of the Commissioner of the General Land Office on July 26, 1892, affirmed by the Secretary of the Interior on January 12, 1894. It is doubtless true that when once a patent has issued the jurisdiction of the Land Department over the land ceases, and any right of the Government or third parties must be asserted by proceedings in the courts. United States v. Stone, 2 Wall. 525, 535; Michigan Land & Lumber Company v. Rust, 168 U.S. 589, 593, and cases cited. It may also be conceded that a right of property may become vested by a decision of the Land Department, of which the applicant cannot be deprived except upon proceedings directly therefor and of which he has notice. Cornelius v. Kessel, 128 U.S. 456; Orchard v. Alexander, 157 U.S. 372, 383; Parsons v. Venzke, 164 U.S. 89; Michigan Land & Lumber Company v. Rust, supra. Without undertaking to indicate the limits to which this can be carried, it is enough to say that the proceedings in this case, both in the local land offices and by appeals and reviews in the General Land Office, were within the settled rules of procedure established by the Department in respect to such matters. Generally speaking, the Land Department has jurisdiction until the legal title has passed, and the several steps in this controversy were before the issue of the patent, while the jurisdiction of the Land Department continued, and with both parties present and participating. The question of title was in process of administration and until the patent issued nothing was settled so as to estop further inquiry. Knight v. U.S. Land Association, 142 U.S. 161; Michigan Land & Lumber Company v. Rust, supra. So, although it be conceded that the findings of the Secretary of the Interior, in 1894, were to the effect that the plaintiff had a right to enter the land, that decision was not final, and it was within the jurisdiction of the Land Department to institute further inquiry, and upon it to finally award the land to the party held to have the better right.
This brings us to the pivotal fact. It appears from the complaint and exhibits that during the time that these proceedings were pending in the Land Department, Love made a sale to James Rundall of the tract in controversy, or some other tract, or some logs, and that Rundall thereafter made a sale of the same property to Flahive. What was the thing sold is not positively shown by the testimony. In the final decision of the case the Secretary of the Interior, after giving a synopsis of the testimony, which he says is largely incomplete and irrelevant and not entirely satisfactory upon the question, says:
"The witnesses Vanderpool and Lynch testify that Love had a place for sale which included the tract in controversy; Rundall that he purchased the tract in controversy from Love. The latter denies any sale of the land, but states that he sold some logs for W. H. Finley. It is evident from Love's statement of the transaction that, conceding the sale to be only of logs, he was aware that the land upon which the logs were situated would be claimed by the purchaser of the logs, not by virtue of the sale of the logs, but because it appears that he sold the logs for the reason that the claim of W. H. Finley, upon which the logs were situated, was about to be taken by Rundall.
"It appears that a clear preponderance of the testimony shows that the logs were situated upon the land in controversy; and from Love's evidence it is shown that he at the time of this sale laid no claim to the land upon which this unfinished cabin was erected.
"It thus appears that from a preponderance of the testimony it is shown that this tract of land was not claimed by Love at the date of the sale of this land or of these logs; for it is evident that in either case Love asserted no title. It matters not, under the peculiar circumstances of this ...