Dissenting Opinion: Waite, C. J.

man v. Buick, 93 U. S. 209, was between the holder of a patent of the United States and the holder of a patent from the State of California, claiming under a prior grant from the United States of the same land for school purposes. The Smelting Company Cases, 104 U. S. 636, and 106 U. S. 447, were between those claiming under a patent for a placer mining claim and certain occupants of lots in the town site of Leadville which had been reserved from sale prior to the location of the claim. In Reynolds v. Iron Silver Mining Company, 116 U. S. 687, the question was not one of admitting proof to invalidate a patent, but as to the legal effect of a patent for a placer mining claim, and it was held not to include veins or lodes within the boundaries of the claim as located on the surface and extended vertically downwards, if known to exist when the patent was issued. In Wright v. Roseberry, 121 U. S. 488, decided at the last term, one party held under a conveyance by the State of California of a tract of land which the State claimed under the grant by the United States of swamp and overflowed lands, and the other under a patent from the United States issued upon a preëmption entry. Many more cases of a similar character might be cited, but it is needless to pursue them further. They establish beyond all question that, if one holds under an older title, or if he is in a position under a junior claim to represent the title of the government, he may attack the validity of a patent in a suit at law on the ground that it was issued without proper authority.

On the other hand, it seems to me equally well settled, that if he who seeks to contest the patent is a volunteer, a mere intruder, he will not be heard. Thus, in Hoofnagle v. Anderson, 7 Wheat. 212, the contest was between the holders of two Virginia military land warrants, who had made their entries on the same tract of land. One entered and got his patent eighteen months before the other located his warrant. At the trial the holder of the junior warrant sought to show that the former grant was "obtained contrary to law, being founded on a warrant which was issued by fraud or mistake;" but Chief Justice Marshall, in delivering the opinion of the court, said: "The title of the respondent to the particular tract included

Dissenting Opinion: Waite, C. J.

in his patent was complete before that of the appellants commenced. It is not doubted that a patent appropriates land. Any defects in the preliminary steps, which are required by law, are cured by the patent. It is a title from its date, and has always been held conclusive against all those whose rights did not commence previous to its emanation. Courts of equity have considered an entry as the commencement of title, and have sustained a valid entry against a patent founded on a prior defective entry, if issued after such valid entry was made. But they have gone no farther. They have never sustained an entry made after the date of the patent. They have always rejected such claims. The reason is obvious. A patent appropriates the land it covers; and that land, being no longer vacant, is no longer subject to location. If the patent has been issued irregularly, the government may provide means for repealing it; but no individual has a right to annul it, to consider the land as still vacant, and appropriate it to himself." pp. 214, 215. This seems to me to be the true rule; and one way the government may adopt to annul a patent which has been issued without authority of law, is to grant the land to another, and thus clothe the new grantee with its own power to test the validity of the former proceedings to divest it of title. Such a grantee will thus be made to represent the United States by authority, and he may sue for the land. With such a title, or something equivalent to it, the courts may properly, as has been done heretofore, allow him to assert his own title, that is, the title of the government, against one which was apparently granted before. Such an attack on the title would be direct, not collateral, as authority to proceed had been given by the government for that purpose.

In Cooper v. Roberts, 18 How. 173, the suit was brought by one holding title under a patent of the State of Michigan conveying a tract of what was claimed to be school land, against one who had got into possession under a lease by the Secretary of War for mining purposes. The title of the State was adjudged to be good as against the United States and the defendant in possession. The defendant then objected to the plaintiff's right of recovery because "the officers of the State

Dissenting Opinion: Waite, C. J.

violated the statutes of Michigan in selling the lands, after they were known, or might have been known, to contain minerals.” As to this, Mr. Justice Campbell, speaking for the court, p. 182, said: "Without a nice inquiry into these statutes, to ascertain whether they reserve such lands from sale, or into the disputed fact whether they were known, or might have been known, to contain minerals, we are of opinion that the defendant is not in a condition to raise the question on this issue. The officers of the State of Michigan, embracing the chief magistrate of the State, and who have the charge and superintendence of this property, certify this sale to have been made pursuant to law, and have clothed the purchaser with the most solemn evidence of title. The defendant does not claim in privity with Michigan, but holds an adverse right, and is a trespasser upon the land to which her title is attached. Michigan has not complained of the sale, and retains, so far as this case shows, the price paid for it. Under these circumstances we must regard the patent as conclusive of the fact of a valid and regular sale on this issue.”

So in Field v. Seabury, 19 How. 323, the same rule appears. There it was said that the question whether a grant from a sovereignty or by legislative authority was obtained by fraud was exclusively between the sovereignty making the grant and the grantee. It seems to me clear that the same rule applies to questions of illegality. The case of Spencer v. Lapsley, 20 How. 264, is equally significant. There the question was as to the validity of a Mexican grant, and the court refused to investigate the fairness of the grant at the instance of one who had "entered without a color of title," and in so doing said, again speaking through Mr. Justice Campbell: "Neither the State of Coahuila and Texas, nor the Republic of Texas, nor the State of Texas, has taken measures to cancel this grant, nor have they conferred on the defendant any commission to vindicate them from wrong. He is a volunteer. The doctrines of the court do not favor such a litigant."

The last case in this court to which I will refer in the present connection is Ehrhardt v. Hogaboom, 115 U. S. 67. There the suit was brought by one claiming title under a patent of the

Dissenting Opinion: Waite, C. J.

United States issued to a preëmption settler, against one who contended the patent was void because the lands were, at the time of the preëmption entry, swamp and overflowed lands which passed to the State of California under an act of Congress passed in 1850. As a defence to the action the defendant, offered to prove the character of the land, but we held this offer was properly denied because he was, as to the land in dispute, "a simple intruder, without claim or color of title. He was, therefore, in no position to call in question the validity of the patent of the United States, and require the plaintiff to vindicate the action of the officers of the Land Department in issuing it."

In some of the state courts the same ruling has been made. Thus, in Crommelin v. Minter, 9 Alabama, 594, before the Supreme Court of Alabama in 1846, it was decided that "a patent fraudulently obtained, or which has issued in violation of law, is void, and does not authorize a recovery against a party in possession under color of title. But a mere intruder cannot insist on the invalidity of the patent." And so in Doll v. Meador, 16 Cal. 295, it was held by the Supreme Court of California, in 1860, that "a patent, not void upon its face, cannot be questioned, either collaterally or directly, by persons who do not show themselves to be in privity with a common or paramount source of title;" and the court, in delivering its opinion, was careful to say, "the point here is as to the status of the party who can raise any question as to its [the patent's] validity, when it is regular on its face."

I cannot but believe this is the true doctrine. If the government is satisfied with what has been done, all others must be; and it will be deemed in law to be satisfied, unless it proceeds itself to correct the error or authorizes some one else to do so. It only remains to consider what position Doolan and McCue occupy in this litigation. The land was patented to the Central Pacific Railroad Company February 28, 1874, and the railroad company conveyed to Carr, the plaintiff below, June 10, No attempt has been made by the United States, so far as this record discloses, to annul the patent. On the 10th of November, 1882, Doolan and McCue each entered on 160

1874.

Dissenting Opinion: Waite, C. J.

acres of the land under a claim of preemption settlement. Each of them then made and subscribed a declaratory statement of his intention to claim and preëmpt the land on which he had settled under the laws of the United States, and presented it to the register of the proper land office; but he refused to receive it on the ground of the existence of the patent to the railroad company. This is all the claim of title which they have; but the decisions are uniform to the effect that what had thus been done conferred on them no rights as against the United States. Certainly it gave them no right to represent the United States in a suit to avoid the patent which had been issued.

In Frisbie v. Whitney, 9 Wall. 187, it appeared that in March, 1862, this court decided that what had been supposed to be a valid Mexican grant of the Soscol Ranch was void for want of authority in the Mexican government to make it. At the time of this decision Frisbie was in possession of the quarter section involved in the suit under the Mexican title. Whit

ney afterwards took forcible possession of the same quarter section and claimed to hold it as a settler under the preëmption laws of the United States. He applied to the proper land officers to make his declaration under the statute but they refused to receive it. On the 3d of March, 1863, Congress passed an act, c. 116, 12 Stat. 808, by which the bona fide purchasers under the Mexican title were allowed to buy the lands from the United States. Frisbie availed himself of this statute and got his patent. Whitney then sued him for a conveyance of the legal title because of the alleged superior equity which he, Whitney, had acquired by his preëmption settlement. This court however decided that a settlement on the public lands of the United States, no matter how long continued, conferred no right against the government, and, it was added, “the land continues subject to the absolute disposing power of Congress until the settler has made the required proof of settlement and improvement and has paid the requisite purchase money." For this reason the title of Frisbie was sustained and the bill dismissed. The Yosemite Valley Case, 15 Wall. 77, is to the same effect.