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FRISBIE V. WHITNEY, 76 U. S. 187 (1869)
U.S. Supreme Court
Frisbie v. Whitney, 76 U.S. 9 Wall. 187 187 (1869)
Frisbie v. Whitney
76 U.S. (9 Wall.) 187
1. Occupation and improvement on the public lands with a view to preemption, do not confer a vested right in the land so occupied.
2. It does confer a preference over others in the purchase of such land by the bona fide settler, which will enable him to protect his possession against other individuals, and which the land officers are bound to respect.
3. This inchoate right may be protected by the courts against the claims of other persons who have not an equal or superior right, but it is not valid against the United States.
4. The power of Congress over the public lands, as conferred by the Constitution, can only be restrained by the courts, in cases where the land has ceased to be government property by reason of a right vested in some person or corporation.
5. Such a vested right, under the preemption laws, is only obtained when the purchase money has been paid, and the receipt of the proper land officer given to the purchaser.
6. Until this is done, it is within the legal and constitutional competency of Congress to withdraw the land from entry or sale, though this may defeat the imperfect right of the settler.
In March, 1862, and for many years before, there was a
large body of land in California known as the Soscol Ranch, and which was supposed by almost everyone in that country to be private property. The tract covered eighteen square leagues, and included the City of Benicia, the Town of Vallejo, the navy yard of the United States, the depot of the Pacific Steamship Company, and hundreds of acres of land in cultivation and in possession of a large rural population. These parties all claimed under grants to a certain Vallejo by the Mexican government, made in 1843 and 1844, which had been presented to the Board of Land Commissioners and confirmed, and the decision of the board had been also affirmed on appeal to the district court.
In March, 1862, the case coming before this tribunal, the court felt itself compelled to declare the grant void for want of authority in the Mexican government to make it, and on the 22d day of the month just named did so declare it; the decision not in any way impeaching the good faith of the numerous purchasers under Vallejo. However, as the act of Congress [Footnote 1] which organized the Board of Commissioners to determine the land titles in California, declared that when any of the claims presented to it should finally be decided to be invalid the land should be considered as a part of the public domain, the effect of the decision was, that the United States became the absolute owner in fee of all the property, as above described; city, town, depot, ranch, the houses, the homes, the cultivated grounds and orchards, which the persons had bought and paid for, had built on and cultivated. The occupants had nothing left, of course, but an appeal to the equity and generosity of the government.
As soon as it became generally known in Benicia, and among the population on and about the Soscol Ranch, that this Court had declared the Vallejo claim void, and that the whole eighteen leagues were public land, a rush was made to secure all of it that was valuable, and which it was supposed had become subject to the preemption laws. The report of the register and receiver of the Land Office, who were subsequently required to investigate the claims set up
to these lands, both by the Vallejo claimants and the settlers, presents the mode in which this was done. The parties desiring to make preemption claims generally went on the lands in the night, because they were resisted by those in possession, and in the morning a house, eight or ten feet square with shed roof of redwood boards, set up edgewise, without window, fireplace, or floor, was discovered, the evidence of a bona fide settlement and occupation under the preemption laws of the United States.
Among the persons who sought to obtain a property by preemption right in this land was one Whitney, who, according to his own account, entered on a quarter-section one afternoon with his family, consisting of his wife, two children, a man and a carpenter, with his team, goods, and household furniture. He commenced building next day, and made a better house than those above described. It had three rooms. The quarter-section on which he entered had been already occupied by one Frisbie, a son-in-law of Vallejo, and one of the numerous persons in possession under Vallejo's title. It was enclosed by a fence, had a crop not yet gathered and a house occupied by a tenant of Frisbie. Whitney's occupation was resisted by Frisbie, who on one occasion seized a double-barreled shotgun of Whitney's, cocked it at him, and stood in a menacing attitude, Whitney twisting it out of his hands.
On the 3d March, 1863, after the effect of the decision in United States v. Vallejo became known and after Congress had had time to examine into the case, that body passed an act for the benefit of these occupants of the Vallejo claim. [Footnote 2] This act authorized the lines of the public surveys to be extended over the Soscol Ranch and enacted that bona fide purchasers from Vallejo or his assigns might enter the lands so purchased and reduced to possession at the time of the adjudication of the Supreme Court at one dollar and twenty-five cents per acre. Under this act, Frisbie paid his money, made his entry, and finally received his patent.
When, on the other hand, shortly after his settlement above described, Whitney applied to the land officers to make his declaration of intention to occupy and cultivate the land, they refused to receive it, first because no surveys had been made by which the land could be identified, and afterwards because Congress had passed the act already cited for the benefit of the claimants under Vallejo. He never paid any money to the government, nor did he receive a certificate of entry or preemption, though he offered to prove his settlement.
In this state of things, Whitney filed a bill in the court below setting forth such of the preceding facts as bore favorably on his case, setting forth also that Vallejo's title had been declared void by this Court on the 24th March, 1862, and that the land had so become part of the public domain, and subject to the right of preemption, and that he had settled upon it, erecting a dwelling house, which he occupied with his family, cultivating &c.; that the act of the 3d of March, 1863, had been passed at the solicitation of Vallejo and purchasers under him. The bill proceeded:
"But your orator insists that after the decision of the Supreme Court of the United States in March, 1862, and before the passage of the Special Act of March 3, 1863, above mentioned, the said lands were by law open to preemption, and your orator having within that period made a bona fide settlement and having fully complied with all the conditions prescribed by law, is vested with the right to enter said lands."
It therefore prayed that as he, Whitney, had the superior equity, Frisbie should be compelled to convey the land to him.
Frisbie answered setting forth such of the already stated facts as affected favorably his case, denying the sufficiency of the settlement set up, admitting the decision of the Supreme Court, asserting that
"the effect of that decision upon the rights of the purchasers under that grant, who had by themselves and their tenants settled and improved the land, was a question of law,"
but maintaining "that it
did not subject the said land to settlement and preemption by strangers."
There was no great controversy apparently about the facts, and the court below, citing and relying on United States v. Fitzgerald, [Footnote 3] Smith v. United States, [Footnote 4] Delassus v. United States, [Footnote 5] and Lytle v. State of Arkansas, [Footnote 6] was of the opinion
"that at the date of the complainant's entry on the land in controversy in October, 1862, it was open to actual settlement and preemption; that he having made his actual settlement and improvement on the land and complied with all the terms and conditions required by law to complete his title, or tendered performance thereof, was entitled to have a patent for the land, and obtained such an interest and vested title and property therein as could not be taken from him and transferred to another against his consent, even by an act of Congress."
It accordingly held Frisbie a trustee for Whitney, and decreed the conveyance prayed for.
The case was now brought here on appeal by Frisbie.
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