Edgar Wilson, for defendants in error.
Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.
The first question arises on the plaintiff's claim of a legal title by virtue of a location of Sioux half-breed scrip. It appears that, under the act of congress, a certificate (No. 430, letter C, for 80 acres) was issued to Walter Bourke. This certificate, which was marked 'Not transferable or assignable,' was dated November 24, 1856. On June 5, 1886, it was presented by W. R. Wallace at the local land office at Coeur d'Alene, accompanied by an irrevocable power of attorney to him executed by Walter Bourke and his wife, on February 27, 1883, and was located upon 80 acres within which was the property in dispute. When the location papers were transmitted to the general land office at Washington, it was discovered that Bourke had on October 26, 1870, applied to the department for a duplicate certificate, on a representation that the original had been lost or destroyed; that such application had been sustained, and a duplicate certificate issued; that on March 9, 1880, he had located such duplicate on land in Dakota, and received a patent therefor, Upon the dis- [166 U.S. 493, 495] closure of these facts, the commissioner of the general land office canceled this location in Idaho.
Now, the contention of plaintiff is that the location of this scrip operated to transfer the legal title to Bourke, by deed, from whom the plaintiff claimed; that no patent was necessary; and that, whatever of wrong Bourke may have committed, the legal title was in him, and could only be divested by a suit in equity brought by the United States. This scrip is of the same character as that which was before this court in Felix v. Patrick, 145 U.S. 317 , 12 Sup. Ct. 862. While it is true that the act of 1851 does not in terms provide for the issue of a patent, and simply authorizes the location of the scrip upon any public lands, yet the general rule is that a patent is necessary for the transfer of the legal title to public lands. In Bagnell v. Broderick, 13 Pet. 436, 450, it was said: 'Congress has the sole power to declare the dignity and effect of titles emanating from the United States; and the whole legislation of the federal government in reference to the public lands declares the patent the superior and conclusive evidence of legal title. Until it issues, the fee is in the government. By the patent, it passes to the grantee, and he is entitled to recover the possession in ejectment.' See, also, Wilcox v. Jackson, 13 Pet. 498, 516; Langdon v. Sherwood, 124, U. S. 74, 83, 8 Sup. Ct. 429, 431, in which it was said: 'It has been repeatedly decided by this court that such certificates do not convey the legal title of the land to the holder of the certificate, but that they only evidence an equitable title, which may afterwards be perfected by the issue of a patent, and that in the courts of the United States such certificates are not sufficient to authorize a recovery in an action of ejectment.' Hussman v. Durham, 165 U.S. 144 , 17 Sup. Ct. 253.
It is true there are exceptions to this rule. One is specially provided by statute (Rev. St. 2449), which makes a certification to a state equivalent to a patent as a conveyance of title. Again, as said in Wilcox v. Jackson, supra, 'one class of cases to be excepted is where an act of congress grants land, as is sometimes done in words of present grant.' This [166 U.S. 493, 496] exception was recognized in Wisconsin Cent. R. Co. v. Price Co., 133 U.S. 496 , 10 Sup. Ct. 341; St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U.S. 1 , 11 Sup. Ct. Salt Co. v. Tarpey, 142 U.S. 241 , 12 Sup. Ct. 158.
It is well settled that an action of ejectment cannot be maintained in the courts of the United States on a merely equitable title. See, in addition to Langdon v. Sherwood, supra, Johnson v. Christian, 128 U.S. 374, 382 , 9 S. Sup. Ct. 87, and cases cited.
With reference to the power of the commissioner of the general land office to cancel an erroneous certificate of location issued by local land officers, see Cornelius v. Kessel, 128 U.S. 456 , 9 Sup. Ct. 122; Knight v. Association, 142 U.S. 161, 177 , 12 S. Sup. Ct. 258; Orchard v. Alexander, 157 U.S. 372 , 15 Sup. Ct. 635. It is, however, unnecessary to enter into any inquiry as to the power of the land department to issue duplicate in lieu of original scrip alleged to have been lost or destroyed, or even as to the regularity of the proceedings by which this certificate of location was canceled. It is enough that there is nothing to exempt this case from the ordinary rule that a patent is necessary to convey the legal title; that the certificate of location created, at best, but an equitable title; and that such a title is not sufficient to sustain an action of ejectment in the federal courts.
We pass, therefore, to the other question which arises on the contention of the plaintiff that he was in peaceable possession, holding under a claim or title, when the defendants forcibly dispossessed him, and that such prior possession under claim of title is sufficient to sustain this action against mere intruders. To an understanding of this question some further facts must be stated. In May, 1886, and before the certificate of location, one Trask, a surveyor, surveyed this tract of 80 acres, and laid it off into lots and blocks. This was done at the instance of Wallace, who held the scrip and power of attorney from Bourke, and who was proposing to establish the town or Wallace. On this plat block 22 was laid off into 24 lots, 12 facing north and 12 south, with an alley between them. On July 31, 1886, Bourke, by his at- [166 U.S. 493, 497] torney, Wallace, conveyed this block to plaintiff, the description in the deed being 'block 22 (twenty-two) in said town of Wallace, consisting of twenty-four town lots, each of 25 x 100 ft., and bounded on the north by Lockey St., on the south by Bank St. and on the west by Sixth St., on the east by Seventh St., the title of said land having been vested in the party of the first part by location of half-breed Sioux scrip issued to the said Walter Bourke, under an act of congress of July 17th, A. D. 1854, in exchange for lands held by said party of the first part at Lake Pepin, Minnesota, and now located and duly recorded in the U. S. land office with field notes of survey as provided by said act of congress, at Coeur d'Alene city, Idaho territory.'
At the time of the certificate of location and of the deed, the 80- acre tract was covered with a dense growth of timber, and plaintiff, who put up a sawmill near by, proceeded, under contract with Wallace, to cut down the trees, and convert them into lumber at his mill. In this way, block 22 was substantially cleared of standing timber. Prior to February 19, 1889, plaintiff had built two houses on the noth half of the block. These houses were on lots in controversy in this action. There was no fencing around the block, or any part of it. Some board sidewalk had been placed by plaintiff in front of some of the lots, and on one side of the block; buy it was claimed by defendants that this was done in order to accommodate the travel passing between the depot and a hotel belonging to the plaintiff some little distance from the lots in controversy. There was a conflict in the testimony as to the condition of the block other than the lots upon which the houses were built, the defendants' testimony tending to show that it was covered over with stumps, fallen timber, and brush. In May, 1888, proceedings were taken before the county commissioners of Shoshone county for the incorporation of the town of Wallace. On February 19, 1889, there was a general taking possession of vacant lots, done apparently with a view to the acquiring of title under the townsite acts of congress; and among other lots these in controversy were taken possession of and fenced by the several defendants. There was [166 U.S. 493, 498] other testimony bearing upon the question of the alleged possession by plaintiff, but enough has been stated to outline the nature of the dispute between the parties. Of course, the verdict of the jury determines the questions of fact adversely to the plaintiff; and it is not the province of this court to review such determination or to examine the testimony further than to see that there was sufficient to justify the conclusions reached by the jury.
We pass therefore to consider the charge of the court, and the instructions asked and refused. The plaintiff insists that he entered into possession by virtue of the deed of July 31, 1886; that his actual possession of two lots by virtue of the erection of houses thereon must be taken as constructive possession of the entire block, there being at the time no pretense of any adverse possession; and that, therefore, he was entitled to a peremptory instruction directing a verdict in his favor. He cites, in support of the extent of his possession, Lessess of Clark v. Courtney, 5 Pet. 319, 354, in which this court said: 'Where a person enters into land under a deed or title, his possession is construed to be co-extensive with his deed or title; and, although the deed or title may turn out to be defective or void, yet the true owner will be deemed disseised to the extent of the boundaries of such deed or title.'
The court declined to give such peremptory instruction, but charged as follows:
In respect to which the court of appeals, in its opinion, well said:
We do not think it could have been properly held, as matter of law, that the plaintiff was in constructive possession of this entire half block, and the rule of law in respect to such constructive possession was in the charge we have quoted correctly stated. In this respect it may not be inappropriate to notice two sections of the territorial statutes,-4040 and 4556, Rev. St. Idaho 1887,-the first of which, referring to property held for five years under a claim of title founded upon a written instrument, declares that the property so included in such instrument is deemed to have been adversely held, 'except that, when it consists of a tract divided into lots, the possession of one lot is not deemed a possession of any other lot of the same tract'; and the second provides that in an [166 U.S. 493, 501] action for the possession of 'a lot or parcel of land, situated in any city, town or village on the public lands,' the plaintiff is required to prove and actual inclosure of the whole lot, or the erection of a dwelling house or other substantial building on some part thereof, and adds that 'proof of such building, with or without inclosure, is sufficient to hold such lot or parcel to the bounds thereof, as indicated by the plat of such city, town or village, if there be one, and if there be no such plat, then to hold the same, with its full width and extent from and including such building to the nearest adjacent street, where the intervening space has not been previously claimed by adverse possession.'
As to the circumstances to be considered in determining the question of possession other than the instrument under which the title is claimed, we think the court, in paragraphs 11 and 12, heretofore quoted, stated the law in such a way as to give the plaintiff no ground of objection; and as, upon these instructions, the jury found the facts adversely to the plaintiff, we must accept that finding as conclusive. We see no error in the record, and the judgment of the court of appeals is affirmed.