# Downs v. Hubbard/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
123 U.S. 189
Downs v. Hubbard
e to the provisions of the act of twenty-first of June, 1860, (12 St. 71,) and of the act of the twenty-fifth February, 1869, (15 St. 275,) it will appear that after the survey of the exterior lines of the Las Animas grant, the claims first to be provided for were those of all actual settlers holding possession under 'titles or promises to settle' made by Vigil and St. Vrain, or their legal representatives, prior to the passage of the act. It was required that those claims, within one year from the passage of the act, should be established to the satisfaction of the register and receiver of the proper land-district, when they were to be adjusted according to the subdivisional lines of survey so as to include the lands so settled upon or purchased. It follows, of course, that these were to be surveys of distinct locations, which might be widely separated from each other in different parts of the original Mexican grant, but, of course, within its exterior limits. The grant itself, however, having been confirmed only to the extent of 22 square leagues, it also follows that these surveys in their aggregate areas were not to exceed that quantity. If, however, there were other actual settlers within the limits of the original grant to Vigil and St. Vrain, not claiming title from or under them, but merely by reason of their actual possession, their several settlements might be established either as pre-emption rights or homesteads, according to law, but the quantities were not to be deducted from the 22 square leagues. If any part of this quantity of 22 square leagues should remain unexhausted by the claims of actual settlers holding possession under 'titles or promises to settle' made by Vigil and St. Vrain, and therefore clalled in this record 'derivative claims,' any such surplus was to be located in two equal tracts, each of square form, in any part of the tract covered by the original grant, for the benefit of Vigil and St. Vrain, and their assigns or representatives.
It is conceded by all parties to this record that, in point of fact, the claims of the first class, including Craig's, being those of actual settlers holding possession under titles or promises to settle made by Vigil and St. Vrain, exhausted the whole quantity of the grant as confirmed and reduced to 22 square leagues. The controversy now, is therefore confined to the conflicting claims of this class.
It is further to be observed that the complainant Leitensdorfer lays no claim to any part of the lands embraced in the survey and plat, and covered by the patent issued to Craig. He does not allege or complain that any lands belonging in equity to him were awarded to another. He admits that he was not an actual settler upon, and held no possession of, any part of that tract. On the contrary, the possession which he does allege, and the title which he asserts, have reference to another and distinct tract of land, which, as he alleges, lies within the exterior boundaries of the original Las Animas grant, but several miles distant from any part of the tract allotted and patented to Craig. He, therefore, does not claim as a part of his case in equity that Craig holds the legal title to any lands in trust for him. The prayer of the amended bill, so far as it asserted any right to such relief, was expressly withdrawn, and has been abandoned by counsel in argument.
The case presented, therefore, by the complainant, is not one of that class of which many instances may be found in the reports of the decisions of this court, where a defendant holding the legal title under a patent from the United States has been declared to hold that legal title merely as trustee for a complainant with a superior equity, and decreed to hold for or to convey to the true owner. The right of the complainant in this case to relief is supposed to rest upon different grounds. The injury which he alleges is that Craig wrongfully obtained from the register and receiver an award of lands to which he had no rightful claim, whereby the whole quantity of the confirmed grant has been reduced and absorbed so as to exclude the complainant from that share to which he was entitled. The wrong of which he complains is that Craig fraudulently and corruptly procured the award and decision of the register and receiver in his own behalf, and against Leitensdorfer, and that the latter has been illegally cut off from his right to appeal from the decision of the register and receiver in favor of Craig and against himself, by the illegal and unauthorized issue and delivery to Craig by the surveyor general of the approved plat of the survey of the lands awarded to him, confirmed by the subsequent issue of a formal patent relinquishing the title of the United States to the same tract. This is a short but accurate statement of the complainant's case as he presents it for examination and analysis, and for which we are to seek a rule of decision.
The fraud and corruption alleged against Craig, and which, for the purposes of the case, we are at present to assume to have been proved, as it was in fact found by the decree appealed from, do not necessarily vitiate Craig's claim of title, nor establish that of Leitensdorfer. The charge is that Craig bribed the register and receiver to make the award which they did in his favor. It may, nevertheless, be true that the award ought so to have been made upon the merits. So the register and receiver may have been right in rejecting the claim of Leitensdorfer. This possibility is tacitly admitted, for the bill does not ask a declaration and decree that Craig has no valid claim, nor a decree establishing the claim of Leitensdorfer; and it is plainly not within the jurisdiction of the circuit court to grant any such relief, even if it were asked.
The ascertainment of what persons came within the description of actual settlers under titles or promises to settle upon the Las Animas grant, and the proper limits of their actual settlement and possession, and the adjustment thereof by suitable surveys, were intrusted by the acts of congress on that subject in the first instance to the determination of the register and receiver of the proper land-district, and in case by law an appeal lies from their decision, then to those superior officers in the land-office and the department of the interior to whom such an appeal might be taken. The adjustment of these claims, and their definition by the prescribed surveys and plats establishing them in their appropriate locations within the limits of the original grant, and all questions of possession, of boundary, and of conflict, constitute a part of the administration of the law confided to that branch of the executive department. The free course of that administration within the limits of the law cannot be interrupted or interfered with by the judicial power. Undoubtedly, private rights of great value and importance may be involved, and the exercise of executive discretion may require decisions in favor of some and against others in a conflict of interests and claims. But, as all these claims and titles and interests arise under the law which refers their settlement to executive officers, that reference is itself a condition and qualification of the right, and the latter is altogether subject to its consequences. When the department has exercised its discretion, and exhausted its function, the legal and equitable effect of what it has done or failed to do may be drawn in question when necessary to the determination of conflicting rights between private parties in a judicial proceeding; but as long as the alleged rights which are the subject of contention are in the course of adjudication by the special tribunal, to which they are referred for settlement, the function of that tribunal cannot be displaced by courts of justice. And what the complainant in this case really asks for as his ultimate relief is that the way may be cleared for him to the exercise of the right of appeal, which he claims, from the adverse decision of the register and receiver, to the commissioner of the general land-office, by the removal of those obstructions which he alleges have been illegally interposed against him by the issue of the approved survey and plat by the surveyor general of Colorado upon the order of the president, in disregard and denial of his right of appeal, and the subsequent issue of the patent, in consequence of which the commissioner of the general land-office and the secretary of the interior have decided that they are precluded from now entertaining the complainant's appeal. It is supposed that these obstructions are removed by the decree of the circuit court, which adjudges that the decision and award of the register and receiver in favor of Craig is fraudulent and void, and annuls and declares void the approved plat delivered to Craig by the surveyor general of Colorado, and the patent issued to him for the same lands. The decree seeks to destroy the foundation and muniments of Craig's title to the particular lands described in the plat and patent, but it does not award those lands to any one else, and it does not assume to establish the title of Leitensdorfer to those which he claims. What is the effect of this decree? In any action brought by a stranger to this record against Craig for the recovery of the lands covered by his patent, this decree could not operate as evidence against him. It can only be effective by way of estoppel, and a stranger to the record cannot avail himself of an estoppel by which he is not himself bound. Nor can the decree be supposed to operate upon the record of the survey and plat and of the decision of the register and receiver as they remain recorded in the land department, so as to render them null and void as if they had never existed, and bind and oblige the officers of the department of the interior to proceed in the administration of the law with reference to these lands as if nothing of that sort had taken place. The decree operates only in personam and inter partes. The courts have no control of the public records of the land department, nor supervision over the conduct of its officers, otherwise than as it can be exercised in appropriate cases by the writ of mandamus; besides which, to annul the decision of the register and receiver, if that were possible, would be to destroy the foundation of the complainant's appeal, and restore the matter to the condition in which it was when all the claims were pending before the register and receiver. This result is not within the scope of the complainant's bill.
If, on the other hand, the operation of the decree is limited so as to cancel and annul the approved plat delivered by the surveyor general, and the patent issued thereupon, leaving the decision of the register and receiver to stand as the subject of an appeal to the commissioner of the general land-office, supposed to be still pending, the case of the complainant for equitable interference does not seem to be bettered. For, in that event, what power has the circuit court, sitting in Colorado as a court of equity, to enforce and make effective the complainant's supposed right of appeal? The decree does not operate upon the officers whose action is invoked as necessary to secure the complainant's alleged rights. The process of a court of equity is not appropriate to the exigency, and the circuit court of the United States in Colorado has no jurisdiction, either at law or in equity, over the officers of the land department to compel them to entertain the appeal. Neither is there reason to suppose that the land department will on the basis of such a decree sua sponte proceed with the appeal as pending, or take such action on the application of the complainant.
The ground on which Mr. Schurz, as secretary of the interior, upon the advice of the attorney general, Mr. Devens, declined to reopen and rehear the case, was that the matter had been finally acted upon by his predecessor in office. 15 Op. Atty. Gen. 208. That fact remains, notwithstanding a decree in this case declaring the survey and plat and patent to Craig to be illegal and invalid. Such a declaration and decree operates only in the case and between the parties to this record. It does not operate, as has been already stated, upon the public records of the land department in which they are recorded, nor does it bind and oblige the executive officers of the government in control of that department. Such a decree, therefore, would grant to the complainant no practical relief; it would be vain and nugatory.
The ground which it is claimed in argument justifies such a decree is that, pending Leitensdorfer's appeal to the commissioner of the general land-office, the delivery by the surveyor general of the approved survey and plat, under the order of the president, was illegal and void, and that by reason thereof the subsequent issue of the patent could not operate as a confirmation or conveyance of the title. But if the order of the president, interrupting the course of the appeal in the land department, and the action of the officers of that department in compliance with it, were illegal, and therefore void, they were and are of no force and efficacy, either at law or in equity, and are not binding on any succeeding incumbents of the offices of commissioner of the general land-office or secretary of the interior. It follows that the case of the complainant, based upon his right to prosecute his appeal, is as complete without such a decree as with it. If the duty of the commissioner of the general land-office to entertain and determine that appeal exists as contended, it is a legal duty. That duty is to take up, consider, and adjudge the rights, of the parties in interest, and the entertaining of the appeal is a purely ministerial act, although the questions to be considered in the course of that appeal are to be resolved by the exercise of official discretion and judgment. Nevertheless, it is quite clear, as it has been oftentimes decided, that the duty of entering upon their consideration and proceeding to their determination is strictly ministerial. The remedy in such cases is at law, by means of a writ of mandamus, and not in equity. Ex parte Parker, 120 U.S. 737, 7 Sup. Ct. Rep. 767; Ex parte Brown, 116 U.S. 401, 6 Sup. Ct. Rep. 387. If, to such a writ, issued by a competent court, the officer should make return that he was precluded from entertaining the appeal by reason of the prior action of a predecessor in office, under the order of the president, the question of the sufficiency of that return would be presented to the court issuing the writ, and would involve necessarily the adjudication of the questions mooted in this case. If such a return should, in such a tribunal, be adjudged to be sufficient, then the complainant would be without remedy, for the right which he claims, if it exists, is a legal right cognizable in courts of law, and not a right resting upon any equity within the jurisdiction of chancery courts. If, on the other hand, such a return in such a proceeding should be adjudged to be insufficient, then the complainant would have the remedy which he is here seeking, by a direct and effective process, binding upon the parties whose conduct he is seeking to control. In either alternative, therefore, it is equally conclusive that the complainant cannot obtain in this cause the relief which he seeks, and which alone is adequate to the redress of the wrong of which he complains.
This conclusion is not disturbed or affected by the assumption that the decision and award of the register and receiver was obtained by corrupt and fraudulent practices for which Craig is responsible. The right of appeal from that decision to the commissioner of the general land-office, if it exists in any case, is not hindered by the fraudulent character of the decision appealed from, and the appeal itself is the mode pointed out by law for the correction of any error that may be shown in the decision complained of, whether that error has been produced by the practice of fraud and corruption, or was merely an honest mistake. The proof of such fraud and corruption does not, as has been already stated, demonstrate error. The decision may be right, notwithstanding the fraud, and on the appeal Craig's title, as it now stands upon the approved survey and plat and the patent, may be adjudged to be valid, and any error in it we must assume will be corrected, whether fraudulent or innocent. The question of fraud, therefore, alleged against Craig and the register and receiver, in view of the relief asked, is immaterial.
There is an alternative in which it might be supposed that the question of fraud in procuring the decision of the register and receiver, and thereby obtaining the muniments of title on which Craig's claim now rests, might become material for determination in a judicial cause. That alternative is the supposition, contrary to that on which the complainant rests his case, that the decision of the register and receiver, the issue of the approved survey and plat, and of the patent based thereon, are final and conclusive upon the department of the interior, and not subject to the appeal taken to the commissioner of the general land-office. It may be asked whether such a determination of inferior officers of the land department, involving private rights and interests of great magnitude and value, infected with fraud, is to be protected from attack by judicial process. We are told that 'equity has always had jurisdiction of fraud, misrepresentation, and concealment, and it does not depend upon discovery.' Jones v. Bolles, 9 Wall. 364, 369. That equity will interfere by a proper proceeding where the executive power has exhausted itself. Commissioner v. Whiteley, 4 Wall. 522; Gaines v. Thompson, 7 Wall. 347; Litchfield v. Register, etc., 9 Wall. 575; Samson v. Smiley, 13 Wall. 91; Johnson v. Towsley, Id. 72; Warren v. Van Brunt, 19 Wall. 646. 'That the officers of the land department are specially designated by law to receive, consider, and pass upon proofs presented with respect to settlements upon the public lands with a view to secure rights of pre-emption. If they err in the construction of the law applicable to any case, or if fraud is practiced upon them or they themselves are chargeable with fraudulent practices, their rulings may be reviewed and annulled by the courts when a controversy arises between private parties founded upon their decisions.' Shepley v. Cowan, 91 U.S. 340; Moore v. Robbins, 96 U.S. 530. This doctrine is undoubtedly true, but its limitation is found in the statement that such rulings 'may be reviewed and annulled by the courts when a controversy arises between parties founded upon their decisions.' The jurisdiction to determine such questions does not arise in the courts of the United States by virtue of any power of supervision given to them whereby they have a right to control, to correct, to reverse, and to dictate the procedure and action of executive officers within the scope of the duties confided to them by law. No such power of revision is given, and none such can be exercised. Such a function is not judicial; it is administrative, executive, and political in its nature. The abstract right to interfere in such cases has been uniformly denied by judicial tribunals, as breaking down the distinction so important and well defined in our system between the several, separate, and independent branches of the government; and where the character of the interference sought falls within that designation, the application for it has been uniformly denied.
The case is different in a litigation between parties involving a contest of conflicting claims, where, under some known head of jurisdiction, definite relief or redress may be conclusively administered in favor of one and against the other party. In such cases, the right at law or in equity belongs to one or the other of the constestants; to which of the two it should be awarded is the judicial question involved. The solution of that question may depend upon the effect to be given, either at law or in equity, to some action or determination of the executive officers charged in the first instance with duties of administration in connection with the subject of the litigation, such as, for example, the officers of the land department in the administration of the system of law in reference to the public domain of the United States. It is in such cases that the question has most frequently arisen. In those cases it has, indeed, been held, as claimed, that if the executive officer has made a mistake of law in his administration; if he has exercised power without authority of law; if his determination has been procured by the fraudulent practices of one party upon the officer or upon the opposite party; or if the officer has himself fraudulently decided in favor of one and against the other,-a court of justice will give effect to the rights of the parties as between themselves, notwithstanding the errors and the frauds alleged and shown. The principle is that 'the decision of the officers of the land department, made within the scope of their authority on questions of this kind, is in general conclusive everywhere, except when considered by way of appeal within that department; and that as to the facts on which their decision is based, in the absence of fraud or mistake, that decision is conclusive even in courts of justice when the title afterwards comes in question. But that in this class of cases, as in all others, there exists in the courts of equity the jurisdiction to correct mistakes, to relieve against frauds and impositions, and, in cases where it is clear that those officers have by a mistake of the law given to one man the land which on the undisputed facts belonged to another, to give appropriate relief.' Moore v. Robbins, 96 U.S. 530, 535; Shepley v. Cowan, 91 U.S. 330; Johnson v. Towsley, 13 Wall. 72; Marquez v. Frisbie, 101 U.S. 473; Vance v. Burbank, Id. 514; Quinby v. Conlan, 104 U.S. 420, 425; White v. Cannon, 6 Wall. 443; Silver v. Ladd, 7 Wall. 219, 228.
In Smelting Co. v. Kemp, 104 U.S. 636, 647, it was said: 'If in issuing a patent its officers took mistaken views of the law, or drew erroneous conclusions from the evidence, or acted from imperfect views of their duty, or even from corrupt motives, a court of law can afford no remedy to a party alleging that he is thereby aggrieved. He must resort to a court of equity for relief, and even there his complaint cannot be heard unless he connect himself with the original source of title, so as to be able to aver that his rights are injuriously affected by the existence of the patent; and he must possess such equities as will control the legal title in the patentee's hands.'
And in Silver v. Ladd, 7 Wall. 219, 228, the doctrine was stated in these terms: 'The relief given in this class of cases does not proceed upon the ground of annulling or setting aside the patent wrongfully issued. That would leave the title in the United States, and the plaintiff might be as far from obtaining justice as before. And it may be well doubted whether the patent can be set aside without the United States being a party to the suit. The relief granted is founded on the theory that the title which has passed from the United States to the defendant inured in equity to the benefit of the plaintiff; and a court of chancery gives effect to this equity, according to its forms, in several ways.'
But if the court, by reason of other circumstances, is powerless to adjust and adjudge with final and conclusive effect the opposing claims of the litigating parties, so as to award to one what has been wrongfully given to another, then the mere circumstance that the official act of the executive authority is challenged for error of law or for fraud does not and cannot constitute the ground of an independent jurisdiction. It is only as necessarily incident to the proper decision of a case at law or in equity between parties regularly in court for a determination of their rights as between themselves that such questions can be discussed or decided. Where the whole force of the judgment is spent upon a mere declaration that the act in question is void for want of authority, or voidable by reason of being infected with fraud, and it cannot, consistently with known principles of law or equity, go further by changing the relations between the parties to the suit towards each other, or towards the subject-matter of the litigation, the case is not judicial. This is precisely the present case. Here a declaration by a decree that the decision of the register and receiver was fraudulent, and therefore voidable; that the action of the president in ordering the issue of the approved survey and plat by the surveyor general of Colorado, and its delivery in pursuance thereof, and the subsequent issue of the patent to Craig, were without warrant of law, and therefore void absolutely,-does not decide the controversy raised by Leitensdorfer, nor settle and adjudge the rights of any of the parties thereto. Nor does it, as we have already shown, remove any obstacles WHICH HAVE BEEN WRONGFULLY AND UNJUSTLY Interposed by the defendant to the prosecution in another forum of the rights which the complainant seeks to recover. It is entirely inefficacious for any such result, because, as already intimated, if the acts complained of are, as complainant contends, void, as being without authority of law, then they can have no legal effect whatever, and cannot be set up by the officers of the department of the interior as reasons for refusing to entertain and determine the appeals of Leitensdorfer from the decision of the register and receiver to the commissioner of the general land-office. If, in point of fact, such a right of appeal is secured to him by the law, and the officer whose duty it is to hear and determine it refuses without just reason so to do, the proper remedy is by a writ of mandamus, and not by a bill in equity.
But it is shown in this record that Leitensdorfer, in pursuance of an interlocutory order of the circuit court, and as a condition on which the original injunction was granted, in June, 1877, made his application to the supreme court of the District of Columbia for a mandamus against the commissioner of the general land-office, to require him to proceed with the hearing of the appeals alleged to be pending before him, and that his application was denied by that court; and he alleges that he did not appeal from that judgment, because he was advised by counsel that no appeal would lie from such a judgment. But this is not sufficient to confer jurisdiction upon a court of equity. We are not called upon in this cause to decide whether the judgment of the supreme court of the District of Columbia at special term is or is not erroneous, nor whether an appeal would lie from it, nor whether by law Leitensdorfer is entitled to be heard before the commissioners of the general land-office upon his appeal from the decision of the register and receiver. What we do say, and all we say, is that if he is entitled to such an appeal his remedy is not by a bill in equity.
For these reasons the decree of the circuit court is reversed, and the cause remanded, with instructions to dismiss the bill; and it is so ordered.

## Notes

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