The Iola register. [volume] (Iola, Allen County, Kansas) 1875-1902, 1895-03-29
March 4. ls95I
(Coneluded.)

the limit of homestead entry of such
lands. AS TO this matter of fact the
register was mistaken and his reiec-
ton of the application was wrongful,
and denied to defendant that home
stead entry which under the law he
was then entitled to. In the case of
Shepley VS. Cowan 60 u. S. $50, 33S)
this court said after referring to the
cases of Frisbie VS. Whitney % Wall.
1917 and the Yosemite Valley Case,
Us Wall. ~
But whilst. according to these decisions, no
vested right as against the United states is &C.
Quired until all the prerequisites for the aequis-
itiOn of the title have been complied with, par
ties may, as against eachother, acquire right
to be preferred in the purchase or other acquis-
ition of the land, when the United States has
determined 10 sell or donate the property In
all such eases the first in time of commencement
of proceedings for the acquisition of the title
when the same are followed up, is deemed TO be
the first in right So in this case Charirand the
ancestor. by his previous settlement in 1885 upon
the premises in controversy and residence with
his family and application to prove his settle
ment and enter the land obtained better right
to the premises under the law then existing
than that acquired by Mcpherson by his subse-
quent State selection in 1919. His right thus
initiated could not be prejudiced by the refusal
OF the local officers TO receive his proofs upon
the declaration that the land was then reserv-
ed II, in point of fact the reservation had then
eeased The reservation was asserted. as al
ready mentioned, ON the ground that the land
was then claimed as a part of the commons of
Carondelet. SO soon as the claim was held to
be invalid to this extent by the decision of this
court in March, 1862 the heirs of Chartrand
presented anew their claim TO presumption,
founded upon settlement of their ancestor
Within the authority of that case
we think that the defendant has
shown an equity prior to all claims of
the railroad company. He had a right
to enter the land as hOmestead; he
pursued the course of procedure pre-
scribed by the statute; he made out a
formal application for the entry, and
rendered the requisite fees, and the
application and the fees were rejected
by the officers charged with the duty
of receiving them-and wrongfully
rejected by him Such wrongful re-
lection did not operate to deprive the
defendant of his equitable rights, nor
did he forfeit or lose those rights be-
cause, after this wrongful rejection,
he followed the advice of the register
and sought in another way to ac-
quire title to the lands. The law deals
tenderly with one who in good faith
goes upon the public land, with view
of making home thereon. Ifhe does
all that the statute prescribes as the
condition of acquiring rights and does
not make their continued existence
depend alone upon thequestion wheth-
er or no he takes an appeal from an
adverse decision of the officers charged
with the duty of acting upon his APP
plication.
The policy ofth federal gov erament in ia
yOr of settlers upon public land has been liber-
al. 1t recognizes their superior equity to be-
come the purchasers of a limited extent of land,
cOmprehending their Improvements over that
of any other person" elements V. Warner, 81
How, S94 S97).
There can be no question as to the |
good faith of the defendant. Hewent |
upon the land with the view of MAX |
ing it his home. He has occupied it |
ever since. He did all that was in his |
power in the first instance to secure |
the land at his homestead. That he
failed was not his fault; it came |
through the wrongful action of one
of the officers of the government. |
We do not mean to hold that the gov
eminent or its grantees are concluded |
by the mere fact that one Ofits officers |
has given erroneous advice. If there |
was nothing more in this case than
that the defendant consulted the Off
GERS of the land Office as to how he
could best obtain title to the land,
that they gave him advice which was
founded upon a mistake of fact and
was not good advice that he pursued
the plan they suggested, and yet fail
ed to acquire the title, he would have
to bear the consequences of the error.
But here rightlul application was
wroDgfully rejected. This was not
a matter of advice but of decision.
Doubtless the error could have been
corrected by an appeal, and perhaps
that would have been the better way:
but when, instead of pursuing that
he is persuaded by the local
land officer that he can accomplish
tn at which he desires in another way
"a way that to him seems simpler
and easieT-it would be putting too
much of rigor and technicality into a
and beneficial statute like
law to hold that the equit-
able rights which he had acquired by
his application were absolutely lost.
For these reasons we are of the Opin-
on that there was error in the cOnclu-
zion of the Surprme Court of the State
Of Kansas, and the judgements in
hese two cases are reversed for furth-
,r proceedings in accordance with the
views herein expressed.
Mr.. Justice Gray was not present
lt the argument and took no part in
he decision of these cases.