The defendant (now plaintiff in error) filed a plea of not guilty, and also a plea based on equitable grounds. A demurrer to this latter plea was sustained, and thereupon the defendant asked leave to file an amended equitable plea. This application was denied, the court holding that the grounds of defense set up therein were not sufficient. That plea alleged in substance that the plaintiff's title rested on a patent from the United States, issued on a location of Valentine scrip; that such scrip was, by the terms of the statute under which it was issued, to be located only upon unoccupied and unappropriated lands of the United States; that the land in controversy was, at the time of the location of the scrip, a part of Ft. Brooke military reservation, and was also in the actual occupancy of the defendant. The case came on for trial in September, 1889, and the defendant offered evidence in support of all of his defenses, including therein the matters set up in the equitable plea which he had been refused leave to file. This testimony was held insufficient by the court, and the trial resulted in a verdict and judgment for the plaintiff, which judgment was thereafter, and in June, 1894, affirmed by the supreme court of the state (15 South. 780), whereupon the defendant sued out this writ of error.
The Valentine scrip act was passed April 5, 1872 ( [171 U.S. 93, 95] 17 Stat. 649) and authorized the location of such scrip on 'the unoccupied and unappropriated public lands of the United States, not mineral, and in tracts not less than the subdivisions provided for in the United States land laws.' The patent to the plaintiff was issued September 30, 1882, and recited that it was upon a location of Valentine scrip, and in his equitable plea defendant averred that the patent was predicated upon an entry at the local land office of the United States at Gainesville, Fla. On August 18, 1856, congress passed an act (11 Stat. 87) containing this provision:
At that time there was in existence what was known as the Ft. Brooke military reservation, near the town of Tampa, Fla. As appears from the testimony offered by the defendant, on July 24, 1860, the secretary of war wrote to the secretary of the interior as follows:
From the date of this last communication up to 1877, the record discloses no action by either department; but in January, 1877, the secretary of war requested that a military reservation at Ft. Brooke be declared and set apart by the executive. Subsequently, and on May 29, 1878, the secretary of war addressed a communication to the president, as follows:
This request was approved, and the reservation was made and declared accordingly. The plat, notes, and survey referred to in this letter were not introduced in evidence, so that the exact boundaries of the reservation then ordered were not distinctly shown, nor can it be determined from the description in the letter alone whether it included the lands in controversy. In March, 1883, this last reservation was abandoned, and the land again turned over to the interior department. Defendant also offered a diagram, certified by the commissioner of the land office, of sections 18 and 19 of township 29, range 19, and section 24 of township 29, range 18, which, as the record recites, 'shows the contiguity of the land in question to that portion of the Ft. Brooke military reservation last relinquished by the secretary of war to the secretary of the interior.' The diagram is not very definite, and it is difficult to determine therefrom the boundaries of either the earlier or later Ft. Brooke military reservation. The defendant also offered evidence tending to show that he entered into occupation of the tract in controversy in 1871, and had continued in occupancy ever since. [171 U.S. 93, 98] Samuel Y. Finley, for plaintiff in error.
C. M. Cooper and J. C. Cooper, for defendant in error.
Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.
The ruling of the trial court in sustaining the demurrer to the first equitable plea, and refusing leave to permit the second to be filed, presents no question for the consideration of this court; for it was held by the supreme court of the state that, under the plea of not guilty, all the matters of defense set up in these equitable pleas could be offered in evidence and made available; and, in fact, the defendant on the trial did offer his testimony to establish them. So, the substantial rights of the defendant were not prejudiced, and the ruling involved merely a question of state practice.
We pass, therefore, to a consideration of the merits of the case: Was the land within the limits of any military reservation at the time that it was patented? The supreme court of the state said in respect to this matter:
It is clear to us that they were not. The description of the reservation asked for in the letter of May 29, 1878, from the secretary of war to the president, is not of itself sufficient to show whether the land was within or without the limits of such reservation. The plat, notes, and survey were not in evidence. But the record recites that the diagram, certified by the commissioner of the land office, 'shows the contiguity of the land in question.' If contiguous, it was not within; and, while the diagram is unsatisfactory, yet it tends to support this statement of the record. Again, the testimony of the defendant is that he entered into possession of this land in 1871, which was before the reservation was established, and [171 U.S. 93, 99] continued in such possession until after the restoration in 1883, and this is in accord with the averments in the equitable plea. This also indicates that the land was not included in any government reservation. Further and finally, the plat on file in the general land office, and a part of the public records, puts the question at rest, and locates the land outside the reservation. Hence, as shown by the testimony and by the public records, this land ever since 1870 has been part of the public lands of the United States, and subject to disposal in accordance with the general land laws. It was unappropriated land, within the meaning of the act o 1872.
It being so a part of the public domain, subject to administration by the land department, and to disposal in the ordinary way, the question arises whether a party can defend against a patent duly issued therefor, upon an entry made in the local land office, on the ground that he was in actual possession of the land at the time of the issue of the patent. We are of opinion that he cannot. It appears from the testimony that the defendant, although in occupation of this land, as he says, from 1871, never attempted to make any entry in the local land office, never took any steps to secure a title, and in fact did nothing until after the issue of a patent, when he began to make inquiry as to his supposed rights. But whether a party was or was not in possession of a particular tract at a given time is a question of fact, depending upon parol testimony; and, if there is any one thing respecting the administration of the public lands which must be considered as settled by repeated adjudications of this court, it is that the decision of the land department upon mere questions of fact is, in the absence of fraud or deceit, conclusive, and such questions cannot thereafter be relitigated in the courts. The law in reference to this matter was summed up in the case of Burfenning v. Railway Co., 163 U.S. 321, 323 , 16 S. Sup. Ct. 1018, 1019, as follows:
Reference is made in the brief to the act of congress of July 5, 1884 ( 23 Stat. 103), concerning the disposal of abandoned and useless military reservations. But, obviously, that statute can have no significance in this case, for the patent had issued and the title passed from the government prior to its enactment. We see no reason to doubt that, upon the facts in this case, the judgment of the supreme court of Florida was right, and it is therefore affirmed.