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the registrar and the plaintiff in error had be concluded by it. On being notified that prayed an appeal "in both effects,"_i, e., the order of June 2, 1894, was in full force, for a review of the order and a stay of pro- requiring him to hold the funds, while Sarceedings,—but was refused an appeal in the ria says he is unable to accept the notificalatter aspect, from which refusal he also ap- tion, he declares "he will appear before the pealed, and this was the attitude of the audiencia in the premises.” Instead of so case at the time of the alleged purchase by doing, unless the appearance in the Roig Roig on September 11, 1894. On November case can be so considered, he made applica17, 1894, the audiencia considered the ap- tion in the court of first instance for a replication of Sixto for the enlargement of the lease of the deposited instalment in order appeal, and held that such allowance was to pay it to Roig, and that court made the wrongfully denied in the lower court, and order, although it had been notified of the ordered that the appeal be “considered as decision of the audiencia of November 29, having been taken for both effects.” On the 1895. This order could have no effect on the 8th of January, 1895, Sarria was notified of rights of the plaintiff in error, nor can it this order, and appeared and asked that a protect Sarria, who acted in the face of clear and detailed statement be given him knowledge of the decision of the higher "as to what he has to comply with.” There-court, instead of appearing in that court at upon a new explanatory order was directed the suit of Sixto, and having the rights of to Sarria, informing him that the previous Roig and the contesting heirs determined. requisition meant the ratification of the one We conclude that the plaintiff in error had previously directed to him by the court, "in the right to recover his share of the third order that the sums which he owed from and fourth instalments, notwithstanding the that time to Mr. Manuel Sixto should not be alleged transfers and payments to Roig, delivered by him except to the court in or- and the alleged decree of the audiencia in a der to deposit the same in the royal treas- proceeding to which Sixto was not a party. ury.” This order was duly served on Sar- For error in the court's charge as to the ria on February 5, 1895.

second, third, and fourth instalments, the On November 29, 1895, the audiencia judgment will be reverscd, and the cause reheard the appeal, and, reversing the order manded for further proceedings consistent of August 30, declared the order of June 2, with this opinion. 1894, in full force, whereby the cautionary entry was ordered to be made by the reg

(196 U. S. 100) istrar of property, and the notification ordered to Sarria to hold the payments on the SALLIE FIELD SCOTT, Eliza Madison mortgage, or pay the same into the treas

Scott, Harriet B. Jones, et al., Appts., ury, to abide the order of the court.

The registrar refused to comply, assign- LIZZIE W. CAREW, W. W. Hampton, E. ing as a reason that the encumbrance had

R. Gunby, et al. been assigned to third parties, and that the mortgage law did not justify such an order. Public lands--pre-emption rightsland apSubsequent proceedings resulted in the final propriated for military post. decree of the military court deciding the merits of the controversy in favor of Sixto. The right of pre-emption given by the act of The decision of November 29, 1895, was also

April 22, 1826 (4 Stat. at L. 154, chap. 28),

did not extend to lands which had been apnotified to Sarria, and on May 4, 1896, the

propriated by the United States for a millentry of the court discloses:

tary post, until such post was abandoned. “On May 4, 1896, appeared Mr. Laureano Sarria y Gonzalez and stated: That, hav

[No. 52.] ing received notice that the instalment of the mortgage had been transferred to Mr. / Argued November 7, 8, 1904. Decided Janu

ary 3, 1905. Antonio Roig, who has recorded said transfer in the registry of property, and supposing that he will proceed to collect the same A

PPEAL from the United States Circuit

Court of Appeals for the Fifth Circuit judicially, as he did the previous instal

to review a decree which affirmed a decree ment, he is unable to accept the notification, of the Circuit Court for the Southern Disand he will appear before the audiencia in trict of Florida sustaining a demurrer to, the premises." Over the objection of the plaintiff in er- in real property. Affirmed.

and dismissing, a bill to establish a trust ror, Sarria was permitted to testify that he

See same case below, 56 C. C. A. 684, 121 paid the instalment to Roig by order of the Fed. 1021. audiencia. But the plaintiff in error was not a party to such proceeding, if it had Statement by Mr. Justice Brewer: been legally proved, and of course could not On December 31, 1900, the plaintiffs, who

25 S. C.-13.

v.

are now appellants, filed their bill of com- in the year 1835, although the public surplaint in the circuit court of the United veys had not been extended into this part States for the southern district of Florida, of Florida, Hackley filed with the register praying a decree that the defendants, hold of the land office evidence designating the ing the legal title to a tract of land under particular tract which had been settled patent from the United States, be decreed upon, inhabited, and cultivated by him as to hold that title in trust for them. A de- aforesaid, and claimed the right of premurrer to the bill was sustained, and a emption and purchase thereof under and by decree of dismissal entered. This was af- virtue of the act of Congress of April 22, firmed by the circuit court of appeals for 1826 [4 Stat. at L. 154, chap. 28). By the fifth circuit, and from that affirmance change of the boundary lines of the land this appeal was taken.

districts of Florida the land subsequently The averments in the bill are: The plain. came within the jurisdiction of the land tiffs are the sole descendants and heirs at office at Newnansville, Florida, whereupon, law of Robert J. Hackley, who died in 1845. on November 27, 1843, Hackley secured In November, 1823, Hackley, then over from the register of the land office at St. twenty-one years of age, and the head of a Augustine a copy of the evidence formerly family, settled upon and cultivated the tract filed in that office, and filed it with a notice in controversy. At that time the surround- of his claim with the register of the office ing country was a dense wilderness, and he at Newnansville. On September 26, 1887, the only settler. He erected on the tract a the administrator of the estate of Hackley substantial dwelling and other buildings. filed in the local land office a supplemental In 1824 Colonel Brooke, with a detachment notice of the claim of the legal representaof United States troops, was sent to this tives of Hackley to the right of pre-emption portion of Florida, located a camp or can- in the purchase of the tract. Other parties tonment on this tract, dispossessed Hackley, made application to the Land Department and took possession of the house and land for an entry of said lands, contest proceedso occupied and cultivated by him. The ings were had, which were terminated by a Secretary of the Interior, in the contest pro- decision of the Secretary of the Interior adceedings hereinafter referred to, in an opin- verse to the claim of the plaintiffs, and a ion which is attached to the bill as an ex-patent was issued to Edmund S. Carew, unhibit, found that this action was taken by der whom the defendants claim. order of the War Department. United The following statutes are relied upon by States troops continued to occupy the camp the parties : Act of Congress, March 3, or cantonment until December 10, 1830, 1807 (2 Stat. at L. 445, chap. 46), & 1 of when by an executive order of the President which provides: the Fort Brooke military reservation was “That, if any person or persons shall, established, containing 16 square miles of after the passing of this act, take possesland, and embracing the tract in contro-sion of, or make a settlement on, any lands versy. Thereafter this military reservation ceded or secured to the United States, by was reduced from time to time by executive any treaty made with a foreign nation, or orders, until, on June 1, 1878, only the by a cession from any state to the United tract in controversy, commonly known as States, which lands shall not have been prethe “Reduced Fort Brooke military reserva- viously sold, ceded, or leased by the United tion,” remained. On January 4, 1883, it States, or the claim to which lands, by was relinquished, and transferred by the such person or persons, shall not have been Secretary of War to the Interior Depart. previously recognized and confirmed by the ment. Hackley, after his removal from the United States; or if any person or persons tract, remained a resident of Florida up to shall cause such lands to be thus occupied, the time of his death. On March 3, 1823, taken possession of, or settled; or shall surCongress passed an act [3 Stat. at L. 754, vey, or attempt to survey, or cause to be chap. 29] authorizing the President to es- surveyed, any such lands; or designate any tablish a land office in each of the districts boundaries thereon, by marking trees or of east and west Florida as soon as, in his otherwise, until thereto duly authorized by opinion, there was a sufficient quantity of law,-such offender, or offenders, shall forpublic land surveyed to justify it. Under feit all his or their right, title, and claim, this act, and by an executive order in 1828, if any he hath, or they have, of whatsoever a land office was established at St. Augus- nature or kind the same shall or may be, tine, in the district in which this land was to the lands aforesaid, which he or they situate. At the time this office was es- shall have taken possession of, or settled, or tablished the hostility of the Indian tribes cause to be occupied, taken possession of, or was such as to render communication be settled, or which he or they shall have surtween it and that portion of Florida whereveyed, or attempted to survey, or cause to Hackley resided practically impossible. But I be surveyed, or the boundaries thereof he or

they shall have designated, or cause to be receiver of public moneys of the land office, designated, by marking trees or otherwise. that any person, who has delivered his no And it shall, moreover, be lawful for the tice of claim, is entitled, according to the President of the United States to direct the provisions of this act, to a preference in bemarshal, or officer acting as marshal, in the coming the purchaser of a quarter section manner hereinafter directed, and also to of land, such person so entitled shall have take such other measures, and to employ a right to enter the same with the register such military force, as he may judge neces of the land office, on producing his receipt sary and proper, to remove from lands from the receiver of public moneys for at ceded, or secured to the United States, by least one-twentieth part of the purchase treaty, or cession as aforesaid, any person money, as in case of other public lands sold or persons who shall hereafter take posses- at private sale: Provided, That all lands sion of the same, or make, or attempt to to be sold under this act shall be entered make, a settlement thereon, until thereunto with the register, at least two weeks before authorized by law. And every right, title, the time of the commencement of the public or claim, forfeited under this act, shall be sales, in the district wherein the land lies; taken and deemed to be vested in the United and every person having a right of preferStates, without any other or further pro-ence in becoming the purchaser of a tract ceedings.”

of land, who shall fail so to make his entry The other sections have no application to with the register within the time prescribed, this case.

his right shall be forfeited, and the land by On February 5, 1813 (2 Stat. at L. 797, him claimed shall be offered at public sale, chap. 20), the following act was passed: with the other public lands in the district

“That every person, or legal representa- to which it belongs.” tive of every person, who has actually in- And on April 22, 1826 (4 Stat. at L. habited and cultivated a tract of land lying 154, chap. 28), Congress passed another act, in either of the districts established for the the 1st section of which reads as follows: sale of public lands, in the Illinois territory, “That every person, or the legal reprewhich tract is not rightfully claimed by sentatives of any person, who, being either any other person, and who shall not have the head of a family, or twenty-one years removed from said territory; every such of age, did on or before the first day of person and his legal representatives shall January, in the year one thousand eight be entitled to a preference in becoming the hundred and twenty-five, actually inhabit purchaser from the United States of such and cultivate a tract of land situated in tract of land at private sale, at the same the territory of Florida, which tract is not price and on the same terms and conditions rightfully claimed by any other person, and in every respect as are or may be provided who shall not have removed from the said by law for the sale of other lands sold at territory, shall be entitled to the right of private sale in said territory, at the time pre-emption in the purchase thereof, under of making such purchase: Provided, That the same terms, restrictions, conditions, no more than one-quarter section of land provisions, and regulations, in every reshall be sold to any one individual, in vir- spect, as are directed by the act, entitled tue of this act; and the same shall be 'An Act Giving the Right of Pre-emption, bounded by the sectional and divisional in the Purchase of Lands, to certain Setlines run, or to be run, under the direction tlers in the Illinois Territory, passed Febof the surveyor general for the division of ruary the fifth, one thousand eight hundred the public lands: Provided also, That no and thirteen: Provided, That no person lands reserved from sale by former acts, or shall be entitled to the provisions of this lands which have been directed to be sold section who claims any tract of land in said in town lots, and out lots, shall be sold territory, by virtue of a confirmation of the under this act.

commissioners, or by virtue of any act of “Sec. 2. And be it further enacted, That Congress.” every person claiming a preference in becoming the purchaser of a tract of land,

Messrs. Henry W. Anderson, Francis in virtue of this act, shall make known his P. Fleming, William H. Lamar, George H. claim, by delivering a notice in writing to Lamar, Francis P. Fleming, Jr., Beverley B. the register of the land office, for the dis- Mumford, Eppa Hunton, Jr., and E. Ram trict in which the land may lie, wherein dolph Williams for appellants.

Messrs. William Wade Hampton, Edhe shall particularly designate the quarter ward R. Ganby, and Horatio Bisbeo section he claims; which notice the register

for appellees. shall file in his office, on receiving twentyfive cents from the person delivering the Mr. Justice Brewer delivered the opinsame. And in every case where it shall ap- ion of the court: pear to the satisfaction of the register and The vital question in this case is whether person.

Hackley could claim the benefit of the act that of the President, saying (p. 513, L. of 1826, in reference to the tract in con- ed. p. 271): troversy. Prior to that act he was wrong- “Now, although the immediate agent, in fully in possession of the tract, and could requiring this reservation, was the Secrehave been summarily removed by order of tary of War, yet we feel justified in prethe President. Act of March 3, 1807. His suming that it was done by the approbadispossession was by authority of law. It tion and direction of the President. The was done in the exercise of the power vested President speaks and acts through the heads in the President as Commander-in-Chief of of the several departments in relation to the Army, the order of the War Department subjects which appertain to their respecto being presumed to be that of the President. ive duties. Both military posts and InThe occupation of the tract by the United dian affairs, including agencies, belong to States troops was rightful, being an occu- the War Department. Hence we consider pation of property of the government by the act of the War Department in requir. direction of the proper officer, and that ing this reservation to be made, as being, rightful occupation continued until the act in legal contemplation, the act of the Preswas passed. It is unnecessary to rest the case ident; and, consequently, that the reservaupon the clause in the act of 1826, "which tion thus made was in legal effect a restract is not rightfully claimed by any other ervation made by order of the President, person," although that is not without sig- within the terms of the act of Congress." nificance, or to discuss the question whether And, going beyond the special language the United States can be considered another of the act in respect to the sale of lands,

A more substantial reason is to the court observed : be found in the rule that whenever a stat- "But we go further, and say that, whenute is passed containing a general provision soever a tract of land shall have once been for the disposal of public lands, it is, un- legally appropriated to any purpose, from less an intent to the contrary is clearly that moment the land thus appropriated bemanifest by its terms, to be held inappli- comes severed from the mass of public cable to lands which for some special public lands, and that no subsequent law, or procpurpose have been in accordance with law lamation, or sale would be construed to taken full possession of by and are in the embrace it, or to operate upon it, although actual occupation of the government. no reservation were made of it. Where particular tracts have been taken “The very act which we are now considpossession of by rightful orders of an ex-ering will furnish an illustration of this ecutive department, to be used for some proposition. Thus, in that act there is expublic purpose, Congress in legislating will pressly reserved from sale the land within be presumed to have intended no interfer- that district, which had been granted to inence with such possession nor a sale or dis-dividuals and the state of Illinois. Now, posal of the property to private individuals. suppose this reservation had not been made, Such has been the rule obtaining in the either in the law, proclamation, or sale, Land Department, as well as in the courts. could it be conceived that, if that land were An early case was Wilcox v. Jackson, 13 sold at auction, the title of the purchaser Pet. 498, 10 L. ed. 264. That case rested would avail against the individuals or upon a claim of right of pre-emption under state to whom the previous grants had been the act of June 19, 1834 (4 Stat. at L. made? If, as we suppose, this question 678, chap. 54), which revived an act passed must be answered in the negative, the same May 29, 1830 (4 Stat. at L. 420, chap. 208.), principle will apply to any land which, by containing these provisions :

authority of law, shall have been severed "That no entry or sale of any land shall from the general mass.” be made, under the provisions of this act, In Leavenworth, L. & G. R. Co. v. United which shall have been reserved for the use States, 92 U. S. 733, 745, 23 L. ed. 634, 639, of the United States, or either of the sev- the doctrine announced in Wilcox v. Jackeral states in which any of the public landsson, 13 Pet. 498, 10 L. ed. 264, was reafmay be situated,” or “which is reserved from firmed; the court, quoting the first parasale by act of Congress, or by order of the graph in the last quotation, added: “It President, or which may have been appro- may be urged that it was not necessary in priated for any purpose whatsoever.” deciding that case to pass upon the ques

It appeared that at the request of the tion; but, however this may be, the prinSecretary of War the Commissioner of the ciple asserted is sound and reasonable, and General Land Office had marked upon the we accept it as a rule of construction.” In official map of that Department the tract in that case it was held that a grant of pubcontroversy as reserved for military pur- lic lands in aid of a railroad did not apply poses, and directed it to be withheld from to lands included within an Indian reservasale. The court held that this action was 'tion, and that it was immaterial that the reservation was afterwards set aside, and thereto. Nor is there any conflict in Ūnitthe lands had become a part of the public ed States v. Tichenor, 8 Sawy. 142, 12 Fed. lands of the nation. Newhall v. Sanger, 92 415. There it appeared that the commandU. S. 761, 23 L. ed. 769, ruled that lands ing officer of United States troops in Orewithin the boundaries of an alleged Mexi- gon ordered that a military reservation be can or Spanish grant which was sub judice established on the tract in controversy. In at the time the Secretary of the Interior obedience thereto, a lieutenant erected some ordered a withdrawal of lands along the buildings thereon for the use of the soldiers. route of the road, were not embraced by a It was held by the circuit court that such grant to a railroad company, and it was action constituted no appropriation of the said in the opinion (p. 763, L. ed. p. 770): land so as to exempt it from the operation “The words 'public lands' are habitually of the general land laws. But the ground used in our legislation to describe such as are subject to sale or other disposal under of the decision was that the general comgeneral laws.”

manding was acting without any direction In Shively v. Bowlby, 152 U. S. 1, 38 L. from the President or the War Departed. 331, 14 Sup. Ct. Rep. 548, it was held ment, the court saying (p. 151, Fed. p.

423): that, while Congress has power to grant lands below high-water mark in navigable Wilcox v. Jackson, 13 Pet. 513, 10 L. ed.

“It may be admitted, as suggested in waters, yet the fact that the public surveys are made to terminate on the banks or 271, that, if the order directing the resershores of those waters, indicates that such vation to be made had been issued by the lands are not subject to entry and sale un- Secretary of War,—the head of the Departder the general land laws, but, so far as

ment through whom the President would they are situated in a territory, are re- speak and act upon the subject,-in the abserved for the use and control of the future sence of evidence to the contrary, it would state. This doctrine was reaffirmed in be presumed that he acted by the direction

of the President. Mann v. Tacoma Land Co. 153 U. S. 273,

"But neither General Hitchcock nor Lieu38 L. ed. 714, 14 Sup. Ct. Rep. 820. Many authorities might be cited to the proposition tenant Wyman had any authority to desig.

nate or establish a reservation at Port Orthat a prior appropriation is always understood to except lands from the scope of ford for any purpose. It is not alleged that a subsequent grant, although no reference they were acting in the premises under the is made in the latter to the former. See authority of the President, and there is no Lake Superior Ship Canal, R. & Iron Co. v. presumption of law that they were. Cunningham, 155 U. S. 354, 373, 39 L. ed.

Again, it is urged that the establishment 183, 189, 15 Sup. Ct. Rep. 103.

of this camp or cantonment was a mere There is nothing in United States v. temporary matter, and not to be considered

as in the nature of a reservation or apFitzgerald, 15 Pet. 407, 10 L. ed. 785, to conflict with the foregoing views. It mere

propriation, and we are referred to orders ly decided that an officer of the United and other papers found in the records of

the War Department, copies of which apStates (in that case an inspector of customs) was not deprived by any act of Con- pear in the brief of appellants’ counsel.

Those orders, if we are permitted to congress of the benefit of the pre-emption laws, and the fact that he was put in possession

sider them on this demurrer, make disof a tract of land by the collector of cus. We quote from that issued from the Adju

tinctly against the contentions of counsel. toms, who had received no instructions to

tant General's office: that effect from the Treasury Department, was not an appropriation to the uses of the government. It is true a letter from the Order 70. acting commissioner of the General Land Brevet Col. Brooke, with four companies Office to the register at New Orleans, stat-of the Fourth Infantry, will proceed with ing that the Secretary of the Treasury had as little delay as practicable to Tampa bay, directed that the tract be reserved from sale east Florida, where he will establish a milifor the use of the custom house at New tary post. He will select a position with a Orleans, and requesting the register to note view to the health and in reference to the upon his plats that it was so reserved from Florida Indians about to be removed to that sale, was in evidence, but this was written vicinity agreeable to the late treaty. Upon two years after the inspector had entered this point he will consult Col. Gadsden, and paid for the land. Of course, such at the commissioner employed in locating the tempted reservation could have no effect Indians. upon a title acquired by the entryman prior The permanent headquarters of the

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