The facts sufficiently appear in the opinion. Action to quit title, brought under the provisions of Section 256 of the practice act (Section 3351, Comp. Laws.)
It appears from the statement on motion for new trial that plaintiff's predecessor in interest settled upon twenty acres of the land described in the complaint in the year 1862. It was then unsurveyed public land. He afterwards fenced it and cleared off a portion of it. After his death his heirs transferred it to plaintiff, who has been in possession of it ever since. He has not connected himself with the title of the *Page 192 United States or of the State of Nevada, and claims to hold by possession and occupancy only.
In the year 1898 one David A. Baird made application to the proper officer to purchase the land from the State of Nevada and upon June 17th of the same year made the first payment of $10 thereon. Thereafter, and upon final payment, a patent issued to Baird, from whom defendant deraigns title. The land was listed to the state under the act of Congress approved June 16, 1880, granting 2,000,000 acres of land from the unappropriated, non-mineral public lands in the state in lieu of the sixteenth and thirty-sixth sections.
Findings of fact in conformity with the above statement were made. As conclusions of law, the court decided that, at the date of Baird's application for purchase, plaintiff and his grantors had appropriated the land, and that its selecting and listing were without authority of law and void, and judgment was accordingly entered in favor of the plaintiff. The question is whether the conclusion of law is correct, that the land had been appropriated.
The term "appropriation," as used in the preemption laws, was defined by the Supreme Court of Illinois in the case ofJackson v. Wilcox, 1 Scam. 344. That was an ejectment against an officer of the United States commanding a military post. Plaintiff's lessor claimed a preemption under the provisions of the act of Congress approved June 19, 1834 (4 Stats. at Large, 678.) That act revived a preemption law passed May 30, 1830, authorizing settlers or occupants to enter a certain quantity of land, subject to the restriction "that no entry or sale of any land shall be made under the provisions of the act, which shall have been reserved for the use of the United States, or either of the several states, or which is reserved from sale by act of Congress, or by order of the president, or which may have been appropriated for any purpose whatsoever." (4 Stats. at Large, 420.) Defendant, upon his part, insisted that the land had been appropriated for military purposes.
In its opinion the court say: "We take it for granted that there can be neither a reservation nor appropriation of the *Page 193 public domain, for any purpose whatever, without the express authority of the law."
And later: "It is, in our judgment, entirely useless to discuss the precise meaning of the term `appropriated,' in its general and extended sense, because its meaning and application in the manner it has been used in the preemption law cannot, we think, admit of a doubt. It means nothing more, in the sense in which it is used, than an application of the lands to some specific use or purpose by virtue of law, and not by any other power."
The case went to the Supreme Court of the United States. The judgment of the Illinois court was reversed upon the ground that certain acts of Congress which that court considered obsolete and inapplicable were determined by the supreme court to be pertinent and controlling.
In its opinion the court said: "We now return to the inquiry whether the land in question falls within any of the prohibitions contained in the act of Congress. Amongst others, lands, which may have been appropriated for any purpose whatsoever are exempt from liability to the right of preemption. Now, that the land in question has been appropriated in point of fact there can be no doubt; for the case agreed states that it has been used from the year 1804 until and after the institution of this suit, as well for the purpose of a military post as for that of an Indian agency, with some occasional interruption. Now, this is appropriation, for that is nothing more nor less than setting apart the thing for some particular use. But it is said that this appropriation must be made by authority of law. We think that the appropriation in this case was made by authority of law.
"As far back as the year 1798 (see act of May 3d of that year, vol. 3, Laws U. S. 46) an appropriation was made for the purpose, amongst other things, of enabling the president of the United States to erect fortifications in such place or places as the public safety should, in his opinion, require. By the act of 21st of April, 1806 (vol. 4, Laws U. S. 64), the president was authorized to establish trading houses at such posts and places on the frontiers or in the Indian country on either or both sides of the Mississippi river as he should *Page 194 judge most convenient for carrying on trade with the Indians. And by act of June 14, 1809, he was authorized to erect such fortifications as might, in his opinion, be necessary for the protection of the northern and western frontiers.
"We thus see that the establishing trading houses with the Indian tribes and the erection of fortifications in the West are purposes authorized by law, and that they were to be established and erected by the president. But the place in question is one at which a trading house has been established, and a fortification or military post erected.
"It would not be doubted, we suppose, by any one, that if Congress had by law directed the trading house to be established and the military post erected at Port Dearborn, by name, that this would have been by authority of law. But instead of designating the place themselves, they left it to the discretion of the president, which is precisely the same thing in effect.
"Here, then, is an appropriation, not only for one but for two purposes, of the same place, by authority of law. But there has been a third appropriation in this case by authority of law. Congress, by law, authorized the erection of a lighthouse at the mouth of Chicago river, which is within the limits of the land in question, and appropriated $5,000 for its erection; and the case agreed states that the lighthouse was built on part of the land in dispute before the 1st of May, 1834. We think, then, that there has been an appropriation, not only in fact, but in law." (Wilcox v. Jackson, 13 Pet. 498.)
The definition given to the word "appropriated" as used in the act of Congress of 1830, is the opposite of the meaning of the word "unappropriated" as it appears in act of June 16, 1880. The word "unappropriated," as used in the latter act, means unappropriated by any law of Congress.
Again, a settler upon a tract of public land, occupying and cultivating it, but without entry in the land office, acquires no rights against a government grantee.
In Railroad Co. v. Colburn, 164 U.S. 383, one Kelly settled upon the land. The state court held that his cultivation and occupation created a claim which he could have perfected *Page 195 under the public land laws, and therefore excepted the land from the company's grant.
The court said: "If it be true, as matter of law, that mere occupation or cultivation of the premises at the time of the filing of the map of definite location, unaccompanied by any filing of a claim in the land office then or thereafter, excludes the tract from the operation of the land grant, the decision of the Supreme Court of Montana was right. But frequent decisions of this court have been to the effect that no preemption or homestead claim attaches to a tract until an entry in the local land office. Thus, in the case of RailroadCo. v. Dunmeyer, 113 U.S. 629, 644, Mr. Justice Miller, speaking for the court, said: `Of all the words in the English language, this word "attached" was probably the best that could have been used. It did not mean mere settlement, residence, or cultivation of the land, but it meant a proceeding in the proper land office by which the inchoate right to the land was initiated. It meant that by such a proceeding a right of homestead had fastened to that land, which could ripen into a perfect title by future residence and cultivation.' This language was quoted and the decision reaffirmed in Railroad Co. v. Whitney,132 U.S. 357; Whitney v. Taylor, 158 U.S. 85.
"In Lansdale v. Daniels, 100 U.S. 113, 116, it was ruled that `such a notice of claim or declaratory statement is indispensably necessary to give the claimant any standing as a preemptor, the rule being that his settlement alone is not sufficient for that purpose.' See, also, Maddox v. Burnham, 156 U.S. 544. Now in this case the allegations are that Kelly never made any entry in the local land office, and the decision of the secretary of the interior is based simply on the fact of occupation and cultivation. And, while the decision of that fact may be conclusive between the parties, his ruling that such occupation and cultivation created a claim exempting the land from the operation of the land grant is a decision on a matter of law which does not conclude the parties, and which is open to review in the courts. * * * For the reasons above indicated, because the decision of the land department was only on matters of fact, and *Page 196 did not conclude the law of the case, and because such facts so found were not of themselves sufficient to disturb the title of the railroad company, the judgment is reversed," etc.
The judgment of the district court in this case is reversed, and cause remanded, with instructions to enter judgment in favor of appellant, with costs.
Rehearing denied.