This was an action of ejectment to recover the southeast quarter of section 7, township 119, range 40, in Chippewa county, Minnesota. A jury was waived and the case tried by the court, which made a finding of facts upon which judgment was entered for the defendant. Upon appeal to the supreme court of the state, this judgment was affirmed. [216 U.S. 571, 572] 107 Minn. 568, 119 N. W. 1135. Thereupon, in due course, this writ of error was sued out by the original plaintiffs.
The plaintiffs claim title under a land grant made by Congress, July 4, 1866 [14 Stat. at L. 87, chap. 168], known as the Hastings & Dakota Railway land grant. The premises are not within the place limits of that grant, but are included within the indemnity limits of the line of railroad as located, and were withdrawn from a settlement for the benefit of the grant on July 12, 1866, and again by a modified order of April 22, 1868. On May 26, 1883, the Hastings & Dakota Railway Company, for whose benefit the grant was made, and hereafter referred to as the railway company, attempted to select the land in question, together with other lands within the indemnity limits of the grant, but the selection was rejected by the local land office of the district. Upon appeal, this action was affirmed by the Secretary of the Interior on October 23, 1891. This attempted selection was refused, because not made in accordance with the rules of the Department, requiring, as a condition precedent, that there should be furnished by the railroad company a list of the lands lost within place limits for which lands in lieu were selected. On July 22, 1890, under the land grant adjustment act of March 3, 1887 (24 Stat. at L. 556, chap. 376, U. S. Comp. Stat. 1901, p. 1595), said land grant was adjusted in the Land Department of the United States, and it was found that there existed a deficiency in the place limits of the grant of 922, 182 acres, and that all of the lands within the indemnity limits applicable to cover such loss aggregated less than 100,000 acres. On May 28, 1891, pursuant to instructions from the Secretary of the Interior, the Commissioner of the General Land Office directed the officers of the proper local office that, after giving notice, they should restore to the public domain and open to settlement all the lands in the indemnity limits of said land grant, 'not embracing selections heretofore made and applied for by said company.'
After the final rejection, on October 23, 1891, of the original selection made in 1883, the predecessor of the plaintiffs in title [216 U.S. 571, 573] made a second selection on October 29, 1891, of the land in suit, together with other lands, which last selection was in due form and in full compliance with the rules of the Department, and thereafter, through steps not necessary to be stated, the title acquired by this second selection under said grant was vested in the plaintiffs in error.
The tenth, eleventh, and twelfth findings of fact are in these words:
Messrs. Aldis B. Browne, Alexander Britton, and Evans Browne for plaintiffs in error.
Mr. C. A. Fosnes for defendant in error.
Mr. Justice Lurton, after making the foregoing statement of facts, delivered the opinion of the court:
The facts found show that on May 15, 1889, the defendant in error, being in every way qualified, entered upon the land in question with the intention of claiming it as a homestead, and has ever since continued in possession, residing thereon with his family, and that his improvements have at all times been such as to comply with the homestead laws, and exceeded in value $700 when this action of ejectment was started. On November 3, 1891, he offered at the proper land office a homestead entry, in due form, for said land. This was rejected. Upon appeal the decision was affirmed by the Secretary of the Interior on September 11, 1894. But the facts found in the trial court, and upon which the supreme court of Minnesota made its decision, show that this entry was refused by the local land office 'solely on the ground that said land was withdrawn from settlement by the executive withdrawal of April 22, 1868.' A rejection upon the ground stated was not authorized, for the Secretary of the Interior had no authority to withdraw from settlement lands within the indemnity limits of the grant which had not been before selected and approved by [216 U.S. 571, 575] him. Sjoli v. Dreschel, 199 U.S. 564 , 50 L. ed. 311, 26 Sup. Ct. Rep. 154, and cases cited. It has been insisted that although the local land office rejected the application for the reason stated, the affirmance, upon his appeal, was because his homestead application, instead of alleging that he had settled upon the land at some date prior to the selection made by the railroad company on October 29, 1891, simply alleged, that 'he resides on the described land.' This contention as to the grounds of the affirmance is only made out by the introduction now for the first time of the decision of the Secretary of the Interior, under date of January 25, 1896. But that simply affirms the decision of the Commissioner made September 11, 1894, affirming the rejection made by the local land office, and gives no reason for the affirmance. This decision is sought to be explained by what purports to be a copy of an official communication under date of September 11, 1894, from the Commissioner to the local land register and receiver, notifying him that his rejection of a number of homestead entries, including that of Froyseth, on the indemnity lands in question, had been affirmed. Among other matters in that communication, it is stated, 'that none of the applicants allege that the lands were settled upon either by themselves or others at the date of the said selections in October, 1891, by the Hastings & Dakota Company, nor do the records show that the lands were otherwise than vacant and subject to such selection at said date.' If this be competent for our consideration upon this writ of error, it being no part of the record, it does not appear that the applicant was ever advised of this supposed defect in his affidavit. The local office simply advised him that its decision had been affirmed. The matter was remediable, as the fact was that his settlement was made months prior to his application affidavit. But, assuming that the application in its then form was defective, it is of no legal consequence in determining the validity of the title of the plaintiffs in error. This was a plain common-law action of ejectment. The plaintiffs must recover, if at all, upon the [216 U.S. 571, 576] legal title. That the defendant's application for a homestead has not yet ripened into a legal title is of no moment if the plaintiffs are unable to show a complete and superior legal title. The plain effect of the settlement made upon the land here in controversy before any valid selection of the same land by the railroad company, under its grant, was to initiate a homestead right. That settlement and possession continued from the time it was first made, and when, in October 1891, the Hastings & Dakota Railroad, or its successors in title, attempted to select that land as indemnity land, the land in question was in the actual occupancy of Froyseth, claiming it as a homestead. It had, by such settlement, been segregated from the lands subject to selection, and in a contest between such a homesteader and those claiming under selections subsequently made of lieu lands, the claim of the former is the better claim. Under the act of May 14, 1880 (chap. 89, 21 Stat. at L. 141, 3, U. S. Comp. Stat. 1901, p. 1393), the right of one settling in good faith for the purpose of claiming a homestead 'relates back to the date of settlement.' Nelson v. Northern P. R. Co. 188 U.S. 108 , 47 L. ed. 406, 23 Sup. Ct. Rep. 302; Sjoli v. Dreschel, 199 U.S. 564 , 50 L. ed. 311, 26 Sup. Ct. Rep. 154; St. Paul, M. & M. R. Co. v. Donohue, 210 U.S. 21 , 52 L. ed. 941, 28 Sup. Ct. Rep. 600. But it is urged that the original selection made May 26, 1883, was valid, and operated to vest the title as of that date in the railroad company. There is nothing peculiar in the act of July 4, 1866, which protected indemnity lands against settlement upon the filing of a map showing definite location of the railroad. The grant was one of every alternate section of land, designated by odd numbers, to the amount of five alternate sections per mile on each side of the road. Then follows the indemnity provision, in these words:
The rejection by the Secretary of the Interior of the selection made in 1883 is fatal to any claim now made to carry back the title of the plaintiffs in error to that selection. The right to any land within the indemnity limits of the grant, as has been often decided, depended upon the inquiry whether deficiencies had been established within the place limits, and also whether the lands selected in place of such lost lands were, at the time, subject to such appropriation. Thus, if either preemption or homestead rights had been initiated before such selection, the parcels to which such right had attached were not subject to appropriation as indemnity lands. The function of the Secretary of the Interior was therefore judicial, and not ministerial. Wisconsin C. R. Co. v. Price County, 133 U.S. 496, 512 , 33 S. L. ed. 687, 695, 10 Sup. Ct. Rep. 341, 347. In the case cited above, this court said:
In Sjoli v. Dreschel, 199 U.S. 564, 566 , 50 S. L. ed. 311, 312, 26 Sup. Ct. Rep. 154, 155, this court said:
But it is urged that the mere fact that there was no record evidence of the homestead claim when the selections of 1891 were made was enough to give efficacy to that selection and vest the legal title under the patents thereafter issued. But this is answered by what we have already said; namely, that if, at that date, this land was actually occupied by one qualified under the law, who had entered and settled thereon before that time, with the intent to claim it as a homestead, the land had ceased to be public land, and as such subject to selection as lieu land.
We find no error in the judgment of the Supreme Court of Minnesota, and it is affirmed.
Mr. Justice Brewer did not sit in this case.