#### SMALL, Appellant, v. RAKESTRAW, Respondent.

(No. 1,592.)

(Submitted May 29, 1903.

Decided June 16, 1903.)

*Public Lands*— Homestead — *Residence*— *Decision by Land Department*— Review■ *by the Courts*— Patents — Trustee— *Evidence.*

*1*A residence for voting purposes in another precinct than that in which land is situated precludes an entryman from claiming residence at the same time on the land for homestead purposes.

2. The question of an entryman’s residence upon the land and the *liona /ides*of his settlement thereon is one of fact the determination of which by the officers of the land department is conclusive upon the courts, in the absence of fraud or imposition.

3. It not appearing that the secretary of the interior, in holding that one claiming under the homestead law had not complied therewith ,as to resi*414dence, had no other evidence before him than that he had a residence for voting purposes in another precinct, it cannot be said that his decision was on an erroneous construction of the law, so as to allow interference by a court, even if his holding .that residence for voting purposes in one precinct precluded his claiming residence at the same time on land in another precinct for homestead purposes was wrong.

4 That the holder of the legal title under a patent may be adjudged to hold it as trustee for plaintiff, because of an erroneous ruling of the land department, it is necessary to show not only that defendant was not entitled to the patent, but that plaintiff was so entitled.

*Appeal from, District Court, Flathead County; D. F. Smith, Judge.*

ActioN by Walter W. Small against Samuel 0. Rakestraw. Judgement for defendant. Plaintiff appeals.

Affirmed.

*Messrs. Foot & Pomeroy,*for Appellants.

A court of equity will not permit a nonjudicial or a quasi-judicial officer, in any proceedings before him, by tbe misconstruction of any law, to take property from one person, under the law entitled to it, and give it to another. . *(Johnson*v. *Tows-ley,*13 Wall. 72; *Sanford v.. Sanford,*139 U. S. 642; *Hawley*v. *Diller,*178 TJ. S. 476, 20 Sup. Ot. Rep. 986; *Baldwin v. Starks,*107 TJ. S, 463, 465, 27 L, Ed. 526, 2 Sup. Ct. Rep; 473; *Cornelius*v. *Kessel,*128 TJ. S. 456, 461, 32 L. Ed. 482, 9 Sup.-Ct. Rep. 122; *Quiriby*v. *Conlon,*104 TJ. S. 420, 426, 26 L. Ed. 800, 802; *Rector*v. *Gibbon,*111 TJ. S. 276, 4 Sup. Ct. Rep. 605, 612; *Bernier*v. *Bernier,*147 TJ. S. 242, 13 Sup; Ct. 244, 246; *Northern Pac. R. Co.*v. *Colburn,*164 TJ. S. 383, 17 Sup-. Ct. Rep-. 98; *Northern Pacific R.,Co<.*v. *McCormick,*19 C. 0. A. 165, 167; *United States*v. *Northern Pacific R. Co.,*37 G. C. A. 290, 296; Note 2 in *Iiartman*v. *Warren,*22 C. C. A. 40 ; *Hartman*v. *Smith,*7 Mont. 19-29; *Colburn*v. *Northern Pac. R. Co’.,*13 Mont. 476; *Moore*v. *N. P. R. Co.,*18 Mont. 290; *Murray*v. *Mont. Lumber & M. Co.,*25 Mont. 14.)

Voting in a different precipct from that in which the land is located may be an illegal act, and as such subject the-entryman *415to punishment for illegal voting, but it does not necessarily work a forfeiture of his established place of residence or property rights. *(Spaulding*v. *Steele*(Mich.), 88 N. W. 627; *Dickenson*v. *Inhabitants of Brookline*(Mass.), 63 N. E; 331; *Hoscall*v. *Hafford*(Tenn.), 65 S. W. 423; *California*v. *Sevoy,*9 L. D. 142.)

A residence once established or acquired is presumed to continue until it is shown to have been changed. (5 Ency. Law (1st Ed.), p. 865, paragraph 4, note 1; 6 Ency. Law (1st Ed.), p. 123 and notes; Vol. I, Nice on Evidence, p. 85, citing *Mitchell*v. *United Statesj*88 IJ. S., 21 Wall. 350, 22 L. Ed. 584; Wharton on Evidence, Vol. 2, Sec. 1285, p. 465.)

Before abandonment can be established, change of residence must be clearly shown. The most important and the all necessary element in establishing or changing a residence is the intention of the party. With this must be coupled the act. .The union of the two is indispensable. . This rule is recognized by the department in the case of *Anderson*v. *Anderson,*5 L. D. 6, 7, and in *William Penrose,*5 L. D. 179. C£To constitute the new domicile two things are indispensable: Eirst, residence in the new locality; and, second, the intention . to remain there. The change cannot be except *facto et animo.*Both are alike necessary. Either without the other is insufficient.” *(Mitchell*v. *United States,*88 U. S. 21 Wall. 350, 22 L. Ed. 584, 588.) The place where a person lives and makes his home in his domicile. *(Id.)*The land department has recognized that domicile and residence are convertible terms in the decision of Secretary Lamar *In re James Woodley,*4 L. D. 198, 200.

“A settlement cannot be made upon public lands already occupied; as against existing occupants, the settlement of another is ineffectual to establish a preemptive right. Such is the purport of the decisions in *Atherton*v. *Fowler,*96 U. S. 513, XXIV, 732, and *Hosmer*v. *Wallace,*97 IT. S. 575, XXIV, 1130.” *(Quinby*v. *Conlon,*104 U. S. 420-427, 26 L. Ed. 800-80.1.) The findings are that the plaintiff and the man *416sent by Mm to cultivate the land were driven from it. by defendant in the year 1891. “One who occupies public land against the will and over the protest of one having a homestead entry upon such land is a trespasser.” *(Glover*v. *Swartz,*58 Pac. (Oída.) 943, 944, and many cases therein cited.) “An adverse claimant will not be allowed to' take advantage of his own wrongful acts in preventing' an entryman from maintaining a continuous residence.” (Secretary Smith in *Johnston*v. *Harris,*20' L. E!d. 183; *Vaughan*v. *Gammon,*27 L. D. 438, 444.) A court of equity will decree that the defendant holds the legal title as trustee for the plaintiff. *{Starts*v. *Starr,*73 IJ. S., 6 Wall. 102, 18 L. Ed. 925; *Gornelius*v. *Kessel, Bald-wm*v. *Starts, Hawley*v. *Diller, Rector*v. *Gibbon, Quinby*v. *Gonion,*and numerous other cases cited *supra.)*

MR. COMMISSIONER CALLAWAY

prepared the opinion for the court.

On demurrer to complaint. The substance of the complaint is that in a contest for a tract of land between the plaintiff here, Walter W. Small, and the defendant here, Samuel O. Rake-straw, before the land department, the secretary of the interior erroneously decided in favor of Rakestraw, and that, had it not been for the wrongful acts of the defendant, and the erroneous ruling of the secretary, patent for the land would have issued to plaintiff. The prayer of the complaint is that the defendant shall be decreed to. hold the title to the land in trust for the plaintiff, and convey it to him. Tb this complaint the defendant interposed a demurrer, alleging that “the court has no jurisdiction of the canse, or the subject-matter thereof,” and that the complaint does not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and, the plaintiff refusing to amend, judgment was entered for defendant for costs. From this judgment, the plaintiff appeals.

Plaintiff alleges that he settled upon the land in controversy during the latter part of the year 1886, and resided thereon *417continuously until after be submitted, final proof upon bis homestead claim to tbe land department. Tbe lands became subject to entry on August 16, 1891, under tbe laws of tbe United States, and on tbe day following tbe plaintiff entered tbe same under tbe homestead law, and on January 26, 1892, made final proof in furtherance of such entry. March 26, 1892, Rake-straw filed an affidavit of contest against appellant’s homestead entry, charging that Small bad failed to comply with tbe United States law as to residence. Tbe bearing was bad before tbe register and receiver of tbe local land office, which resulted in favor of Rakestraw. Small thereupon appealed to tbe commissioner of tbe general land office, who found in bis favor, and ordered tbe contest dismissed. Rakestraw then appealed to tbe secretary of the interior, who reversed tbe decision of tbe commissioner, and ordered Small’s homestead entry canceled. In giving bis opinion, tbe secretary said: “Plaintiff filed bis affidavit of contest against tbe defendant’s homestead entry, charging that tbe entryman bad failed to comply with tbe law as to residence. Tbe testimony of Small himself is that be never voted in the precinct in which bis homestead entry lies, but did vote at other points, a long distance from bis homestead, at least twice during tbe time be- claims be was seeking to maintain residence upon the land. He runs a carpenter shop in town, and, to use bis own words, ‘determined to return to tbe ranch only often enough to keep a good showing of habitation.’ His excuse for that was that tbe plaintiff threatened him with violence if be undertook to stay on tbe land. Without passing upon any other question, it is enough to say that a residence for voting purposes in another precinct from tbe land precludes an entryman from claiming residence at tbe same time on tbe land for homestead purposes. *(George T. Burns,*4 L. D. 62; *Hart*v. *McHugh,*17 L. D. 176; *Edwards*v. *Ford and O’Connor,*decided June 18, 1894.)”

Plaintiff contends that, in saying “a residence for voting purposes in another precinct from tbe land precludes tbe entry-man from claiming residence at tbe same time on the land for *418homestead purposes,” the secretary committed such “a gross mistake and misapplication and misconstruction of the law” as brings this case within the rule that whenever it is made to appear to a court of equity that the officers of the land department have issued a patent to the wrong person by reason of a. mistaken application of the law to the facts in the case, the court will, in a proper proceeding, interfere, and control the determination of the department so as to- secure the just rights of the parties injuriously affected. In coming to his determination as to the plaintiff’s residence upon the land, and the *bona fides*of his settlement thereon, the secretary passed upon questions of fact,- whereof he was the exclusive judge, in the absence of fraud or imposition, and neither is shown in this case.

Plaintiff says that the secretary was in error in drawing a conclusive presumption of abandonment from the fact- that plaintiff voted in Granite and Bonner, precincts other than the one in which his homestead claim was. Granite is in another county. What other evidence touching the question of plaintiff’s residence for voting purposes may have been before the secretary, we do not know, as it does not appear from the complaint that the only facts before him on that subject were those relating -to plaintiff’s voting at Granite and Bonner. The question of residence is one of fact. *(McHarry*v. *Stewart*(Cal.), 35 Pac. 141; *Stewart*v. *McHarry,*159 U. S. 643, 16 Sup. Ct 117, 40 L. Ed. 290.)

From the facts before him, the secretary decided that the plaintiff had not resided upon his homestead continuously for the five years prior to January 26, 1892. On the contrary, he found that the plaintiff had established a residence elsewhere for voting purposes during that time. And we think the secretary’s statement that *“a residence for voting purposes*in another precinct from the land precludes an entryman from claiming residence at the same time on the land for homestead purposes” is correct. Whether the secretary erred in his finding upon the facts submitted to him is immaterial in this inquiry. It makes no difference what our conclusion on the subject might *419be. *(Bohall*v. *Dilla,*114 U. S. 47, 5 Sup. Ct. 782, 29 L. Ed. 61)

“The officers of tbe 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 se¡-cure 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; but, for mere errors of judgment upon the weight of evidence in a contested case before them, the only remedy is by appeal from one officer to another of the department.” *(Shepley*v. *Cowan,*91 U. S. 340, 23 L. Ed. 424, quoted in *Moore*v. *Robbins,*96 U. S. 530, 24 L. Ed. 848.)

In *Lee*v. *Johnson,*116 U. S. 48, 6 Sup. Ct. 249, 29, L. Ed. 570, Mr. Justice Eield, speaking for the court, said: “Without going into any detail of the evidence presented to the commisr sioner and the secretary of the interior, but taking the general statement of its nature, which we have given, it is clear that their attention was' drawn by it to the character of the settlement of Johnson, and that they considered whether his entry was made to acquire a home for himself or for his son-in-law, whether his residence had been sufficiently personal and continuous to save and perfect any right, if in fact he had' ever initiated and, and whether or not he had abandoned the land. The findings of the secretary upon any of these matters must be taken as conclusive, in the absence of any fraud and imposition such as we have mentioned. ITpon this point it is only necessary to refer to the cases where this conclusive character of the action of the department upon matters of fact cognizable by it has been expressly affirmed. *Johnson*v. *Towsley,*13 Wall. 72, 20 L. Ed. 485; *Shepley*v. *Cowan,*91 U. S. 330, 340, 23 L. Ed. 424; *Moore*v. *Robbins,*96 U. S. 530, 535, 24 L. Ed. 848; *Quinby*v. *Conlan,*104 U. S. 420, 426, 26 L. Ed. 800; *Smelting Co.*v. *Kemp,*104 U. S. 636, 640, 26 L. Ed. 875; *Steel v.**420*Smelting Co.,*106 U. S. 447, 450, 27 L. Ed. 226.” (And see *Murray*v. *Montana Lumber & Manufacturing Co.,*25 Mont. 14, 63 Pac. 719; *Sanford*v. *Sanford,*139 U. S. 642, 11 Sup. Ct. 666, 35 L. Ed. 290.)

“It would lead to’ endless litigation and be fruitful of evil, if a supervisory power were vested in tbe courts over tbe action of tbe numerous officers of tbe land department, on mere questions of fact presented for tbeir consideration.” *(Quinby*v. *Conlan,*104 U. S. 430, 26 L. Ed. 800.)

Tbe following language in *Moore*v. *Northern Pacific Railroad Company,*18 Mont 290, 45 Pac. 215, is applicable to this case: “Counsel for appellant contends tbat decisions of the secretary of tbe interior, made solely on tbe construction of tbe law, may be attacked in ibis proceeding; but it nowbere appears tbat tbe land contest between plaintiff and defendant was determined by tbe secretary of tbe interior upon a construction of tbe law only. As far as tbe record shows, tbe secretary passed upon tbe facts, and we cannot say tbat bis decision was arrived at from a construction of tbe law only. Decisions are generally rendered upon a consideration of botb law and facts.” (See *Power*v. *Sla,*24 Mont. 243, 61 Pac. 468.)

Tbe plaintiff contends, however, tbat a settlement cannot be made upon public lands already occupied, and therefore tbe defendant bad no right to obtain tbe patent, for tbe reason tbat be initiated bis claim to tbe land in controversy by trespass upon tbe plaintiff. In answer to* this contention, we quote tbe following from tbe opinion of tbe court in *Bohall*v. *Lilia, supra:*“To charge the bolder of the legal title to land under a patent of tbe United States, as a trustee of another, and to compel him to transfer the title, tbe claimant must present such a case as will show tbat be himseslf was entitled to tbe patent from tbe gpverament, and that, in consequence of erroneous rulings of tbe officers of tbe land department upon tbe law applicable to the facts found, it was refused to him. It is not sufficient to show tbat there may have been error in adjudging tbe title to tbe patentee. It must appear tbat by tbe law, prop*421erly administered, the title sbonld have been awarded to the claimant. *(Smelting Co.*v. *Kemp,*104 U. S. 636, 647, 26 L. Ed. 875; *Boggs*v. *Merced Mining Co.,*14 Cal. 279, 363.) It is therefore immaterial for the decision of this case what our judgment may'be upon the conclusions of those officers as to the possession of the patentee.”

We are of the opinion that the complaint does not state facts sufficient to invoke the action of a court of equity, and therefore the judgment should be affirmed.

Pee CuriaM. — For the reasons given in the foregoing opinion, the judgment is affirmed.