It does not appear that the court acted on the exceptions of the intervenor, Burnett. The only judgment rendered by the court was to award the peremptory mandamus directing the surveyor to survey for the appellee, Hays, the land described in his petition. The questions in the case arise upon this judgment.
On the 29th day of June, 1867, the plaintiff, Hays, made application to the county surveyor for a file upon,- and survey of, the land in controversy, claiming it as a preemptor under the Act of November 12,1866, donating one hundred and sixty acres of land to actual settlers upon the public domain. He stated in his application that he believed the land was vacant, as contemplated by the Act of November 12, 1866, and that he had settled on it in February, 1866, and asked for a survey of one hundred and sixty acres, to include his improvements.
The application was rejected by the surveyor, because, as he stated, the land had been located previous to the passage of the Act of November 12.
It was shown on the trial that appellant, Burnett, had filed on the same land in July or August, 1866, and that his survey was made on the 1st day of November thereafter, and patented on the 9th day of August, 1869.
The first section, of the Act of November 12,1866, provides that u All white persons, being heads of families, or twenty-one “ years of age, who have settled upon and improved, or who “ may hereafter settle upon and improve a portion of the vacant “ public domain, which has never been filed upon, located, or “ surveyed by virtue of some genuine, legal, and valid certifi- “ cate, or other evidence of title to land, previous to such settle- “ ment and improvement, shall have the privilege of locating “ and appropriating a tract of such vacant land, not to exceed “ one hundred and sixty acres, so as bo include said settlement “ or improvement, in preference to all other claims or claimants, “ and all files, entries, locations, or surveys made so as to inter- *485“ fere with the preference granted by this Act, shall be null and “ void.”
The second section provides that “ such settlers shall each, “ within twelve months from the passage of this Act, or within “ twelve months from the commencement of any such settle- “ ment which may hereafter be made, cause to be surveyed the “ amount of land for which such settler intends to claim pre- “ eruption privileges!”
The plaintiff’s claim to this land as stated in his petition, does not come within the protection of the decisions referred to in the brief for him. In those cases the settlement and improvement had been made during the time the statute donating lands to settlers was in force, but the claimant had failed to comply with the statute, and was relieved by subsequent legislation, as where he had neglected to return the field notes of his survey within the time required by the statute, or had gone into possession under an imperfect or void title. In such cases the settler had such equities as would prevail over a survey made for another party in the interval between the old law and the passage of the relief law.
The plaintiff’s claim as a preé'mptor is not founded on any law donating land to settlers on the public domain prior to the Act of November 12, 1866, if any such law was in force at the time of his settlement. His claim is based on the allegation of his settlement and improvement made before the passage of the Act of November 12, and that the land was vacant as contemplated by that Act. There are no allegations of any equities attaching to the plaintiff’s claim arising out of previous preemption laws, or other evidence of a claim to the land recognized as valid in law at the time of Burnett’s survey, of which the court could take cognizance. The land was open to location and survey at that time, and has since then been patented to Burnett.
The Act of November 12, in so far as it could be construed as giving to Hays the right to a survey of the land after it had been appropriated by Burnett, would change the legal position *486of the parties, and give to Hays a remedy which he did not possess previously, and would violate the Constitution as a retroactive law.
It was proved on the trial that Daniel Dailey had filed on the land prior to 1865, but that his field notes had not been returned to the General Land Office, and that Dailey had surrendered to appellee, Hays, all his right in the land. It was further proved that Hays had said at one time that he held the land as tenant- for Dailey, and again, that he had taken a preemption under previous laws. If any right had accrued to Hays under Dailey’s file, or as his tenant, or if he had taken a preemption under former laws, it is not averred in the petition, and no relief was asked on these grounds.
If Hays was in a position to invoke the aid of the court on' any of these grounds, it could not be done by mandamus before Burnett’s patent was canceled by decree of the court, or if the facts justified it, Burnett might have been regarded as holding the legal title in trust for Hays, with a decree vesting in him the title, and so regarded, the mandamus would not be necessary.
As presented, the suit might properly be dismissed, but as the plaintiff may be able to amend and show other facts not averred in the petition, the judgment will be reversed, and cause remanded for further proceedings.
Beversed and remanded.