The Washington times., 1902-06-16
Legal Fight for Possession
Now in Judge Cla-
baugh's Hands.
IN LITIGATION SOME TIME
Action Pending Is Against the Land
Department - Decision in Case Ex-
pected From Court Latter Part of
Present Month.

Present Month.
At the conclusion of argument by
counsel on either side, on Friday last,
Justice Clabaugh took under considera-
tion the application of the Riverside
Oil Company and the Cosmos Explora-
tion Company for writs of mandamus
TO compel the Secretary of the Interior
tc issue patents to them for certain
valuable mining lands in California.
These cases, which have been in pro-
tracted litigation not only in the Land
Department. but in the Circuit Court
and Circuit Court of Appeals in Califor-
mia, involve the construction and ap-
plication of the lien land act of June 4.
1897, which permits the owner OF land
in a forest reserve to relinquish his
land and select any tract of equal size
of public land which is vacant and
open to settlement"
The Secretary had construed the term
vacant land open to settlement not to
include land occupied under any color
OF right, whether vacant of record or
not, and had required by regulation
that applicants should make affidavit
that the land was non mineral and un-
occupied under the local customs or
rules of miners. These regulations, the
petitions alleged. were void.
Must Be Vacant by Record.
On the part of the petitioners 1t was
urged at the hearing by their counsel,
Hon. Jefferson Chandler Ex-senator
John NJ. Thurston. Mr. Shirley Ward Of
Los Angeles, and Mr.. William C. Prem
tiss, that vacant land open to settle
ment meant only lands vacant OF rec
ord. That when the petitioners relin-
quished their lands in the forest re-
serve. making conveyance thereof to the
United States. these lands appeared to
be vacant of record, and therefore that
the title of the United States passed to
them at once.
1t was pressed with much earnestness
that transaction under the lien land
act was simply an exchange of lands be-
tween the United States and the appli-
cant. and must be governed by the or
binary law in relation to such ex-
changes.
That if vacant land meant land vacant
of record, then the Secretary had no
power TO make II mean vacant and unoc
cupied, and the petitioners. by selecting
land vacant OF record and paying for it,
by giving a deed for the relipquished
land. they became vested at once with
the equitable title. and had the right to
compel the United States to convey the
legal title just as they would have had
the right to compel private individual
TO do the like. And the method il was
said, to compel such a conveyance was
the writ OF mandamus.
On the part OF the Secretary OF the
Interior, each OF these contentious was
met by denial in the arguments of the
counsel representing the Government
District Attorney Gould, Assistant Dis
trict Attorney Henry H. Classic. and
Mr.. John S. Chapman, of Los Angeles,
special assistant attorney.
Action of Secretary.
In the first place they said the law
was well settled that the writ of man
damus could be used to control the ac-
tjon of an executive officer only in two
classes of cases-when he refused 10
act at all, or when his action was a
simple direct ministerial duty involv-
ing no exercise of Judgment or discre-
tion. In this case there was no conten-
tion that the Secretary had not acted;
he had acted. and in the view of the
petitioner, had acted too much. The
question, then, was, was the act dlscre-
tionary?
The land department, they continued.
was special tribunal, having judicial
functions and possessing jurisdiction
over all proceedings for the acquisition
of the public lands. So long as the legal
title TO the lands had not by action of
the department passed out of the United
States the jurisdiction of the department
remained free from control or review
or interference by the court
The question then was not. as stated
BY petitioner. what was the possible
equitable interest of the applicant. but
whether the legal title had passed.
But the legal title passed only by pat
snt. or by some action of the land de-
partment, equivalent, as matter OF rec
ord. to a patent. The thing necessary
to be found in this case was some ac-
tion of the land department having the
equivalent force of patent.
If that could be done, then the mere
issuance of patent would no doubt
be reduced TO a ministerial act, controll-
able by mandamus; but not otherwise.
But II was plain, they said, that 10
such action could be found: the land
department had expressly held the 9th
er way. No patent could issue until 1t
was determined whether the land Sc
lected was vacant land open to set
tlement;" that was n question which
the land department had TO determine
IN every case; and the solution of that
question required a construction of the
lien land act in relation to all the other
land laws.
Claim of Petitioners Denied.
The land department had construed
the act to mean land not only vacant
OF record, as claimed by petitioners. but
vacant in fact. unoccupied, and the petit
tioners had failed TO prove that it was
unoccupied. They had failed to bring
the lands within the terms OF the act
as construed by the land department.
and as the land department had power
10 construe the act, even IL the court
thought the construction wrong, ii had
no power TO reverse it.
The construction OF the land depart
ment however, was right. AS the title
to mineral lands was acquired under
the law of location and discovery. no