et al. v.
(Oircuit OCYUllt, D. Idaho.
April '16, 1892.')
PtlllLtO LA.'N1>s-LAND-OFFICE REGULATIONS.
r/'lgu!ations,for the disposal of pnbliclands must be appropriate, reasonable, and witliin the limitations of the law for the enforcement of which tbey are provided,and when otherwise they are void.
(SyUabu8 blithe OOUrt.)
InEquity. Bill byH. E. Anchor and others against Benjamin S. Howe and others to determine an adverse claim to publio lands. Plea in abatement disallowed. HaganaQd Richard Z. JohnlKYn, for plaintiffs. W.B. Heyburn, for defendants. BEATTY r District Judge; It is alleged by the bill that this action is inetituted in of the provisions of section 2326, Rev. St.., and that "complainants made their protest and adverse claim under oath and indue form of law, and tiled ,the same in the United States land office," etc. The defendants plead, in abatement of the action, that no ad\'erse claim was filed or aliQwed in !!uch land office. It sufficiently appears that an adverse claim in due form was presented to the land office for filing, but was rejected because it did not appear therefrom that a survey of the disputed prelnises, and a map thereof, had been made bya deputy ,United Stntes surveyor. Said section 2326 requires that the ad· verse,claim filed ,"shall show the natllre, boundaries, and extent" thereof. This statute is ,it) all particulars complied with by the adverse claim presented to the land office, and no question is or cnnbe raised that the statute itself is not fully observf'd. But by the forty-ninth rule, issued by the,commissioner,of the ,general land office, approved by the secretary of the interior,theplat showing the boundaries of the conflicting premises' "must bel1lade from an actual survey by a del;uty United States surveyor." Must this rule be regarded fie a part of the law, and be closely follo-wed? is the only question for determination. The plat and certificate attached. comply with the rule, except that it does not appear tQ&tthe who made them and the survey was a United States surveyor. In support of the effect of this rule, the department decisions found in Sickles, Min. Dec. 263, 265, 277, are cited. In those cases it appears the adverse claims were very irregular, and wholly failed to corn· ply with said rule in not showing that any survey had been made, and in omitting the certificates required. Their conclusion is not based alone upon the fact that the surveyor was not a United States deputy, but, on the contrary, it is stated in one that "no surveyor," and in another that"no United States deputy or other surveyor," had performed the required acts. It may fairly be inferred from these cases that the performance of such acts by any surveyor would be sufficient. Weeks on Mineral Lands, 190, says they may be performed by a United States deputy or other surveyor. But aJmitting that such rule can btl complied with
ANCHOR t7. HOWE.
only 1'>y procuring the services oh UnitedSta.te's sur\leyor, the question -still remains whether the rule itself has the force of positive law; alldbJ what authority can the land .department make it. It is clearly invested by the statute with the executive duties in the disposal of the public landsj and by section 2478 "the commissioner of the general land office * * * is authorized to enforce and carry into execution, by appropriate regulations, every part of the provisions" applicable to the disposal of the pu.blic lands, including mineral lands. Under this section the validity of all departmental regulations which are appropriate, and within the limitations of the law, cannot. be dOUbted. This, however, is not a grant of power to legislatej to add to the lawj to render its enforcement difficult; to burden the proceedings under it with unnecessary expense or hardshipj or to incumber them with onerous and technical conditions. It'i'l designed that the permitted regulations shall simplify and explain, not embarrass, the administration of the lawj and certainly theymustno,t only be appropriate, but they must be reasonable, and within the limitations and intent of the statute. By the requirement that the boundaries and extent of the conflict shall be shown, it was not designed that the representation thereof mlldein the land office should be final, in that office or elsewhere; for that question is remitted to the courts for decision, and they are not in any way dependent upon the adverse claim Rsfiled,but base their action upon a full development of all the facts. .The most'apparent, if not the only, object of this statute is that the l1pplicimt for patent may have a definite notice of what is claimed against him,whiclihe may then ooncede or contest. Any adverse claim, apparently made in good faith, and which clearly and definitely notifies the applicant for patent of the conflict between his and the adverse min· ing claim,wonld seem to meet and comply with the object of the statute, and certainly would be sufficient to so put in issue the question of eontest that the interest of all parties could be protected by the courts. It is suggested thatthe government does not design that its mineral lands shall be patented upcin, a survey made by any surveyors except those specially appointed by it. No patent, however,is issued upon such unofficial survey, or, at least,not until after an investigation by the court, where any error can be detected and corrected, and neither the govern.. ment nor others ean beinjured thereby. I am unwilling to say that this and all the departinent regulations, regardles3 of their encroachment· upon or variation from the law, and the needless expense j inconvenience, and hardship which they may entail beyond those which would result by following only the provisions of the law itself, shall be literally and technicallyconstrued and enforced. Such a rule would not be conducive to the ends of justice. When they must be followed, and when they may be disregarded, may not be easy to define by any general rulej but in all cases they must be appropriate, and within the limitations of the lItatute in the enforcement of which they are designed to aid, and which they cannot supplant. .It. has frequently been held by the supreme and other UnitedStatea courts. that regulations in conflict with the law are invalidjthose which enlarge its requirements, though not in exact con-
iietwith or contradiction of it, should be likewise regarded. If this l'lJle is not clearly within the former, it is within the latter class. The defendants' plea, therefore, is disallowed.
v. WADDELL et ale
(Circutt Oourt, N. D. Georgia. March 11, 1892.) 1.
, Whljln. on arranging the parties according to their interests in the controversr. tbe 'jurilldiction of tlie federal court will be taken away because of the citizenshlp of; o'le. party,. suchpll.rty may be dismissed, and the question will then remain whetpershe is a necessary party. Horn v. LocTMart, 17 Wall. 570, followed. ," ,In passing upon a question of juriSdiction the '!'Dy excessive delay in raising the point.
IN RAISING THE POINT. FEDERAl.. COtTRTS-JORIS1>XOTION-CITIZIllNSHIP-DISMISSAL
will take into consideration ,
tion,·· ' .Tb.e citizenship and residence of the parties is stated in the bill to be 8$ follows: ,John M, Chtiborne, guardian of the person and properly of
Sarah Vienna Phillips,is,a citizen and resident of the state of Texas, his, wJ\rd being .acitizen and resident of Missouri. Margaret L. GutbiEl and 'her husband;. who is joined with her, are citizens and residents oithe, state of Texas. All of said partil",s l:lre complainants, and Jobn''o.[Waddell, William Peek, E. H. Richardson, Thomas Berry, AlfredSborter, and John M. Berry, partners under the name and style of Berrys & Co., and Mrs. Augusta Phillips, who was formerly Mrs. Augusta Colville, citizens of and residing in the state of Georgia, in said northern :district, are defendants. The purpose of the bill is to recover asse.ts of the estate of Hiram Phillips from John O. Waddell, who was bis guardian, (l'hillipshaving been adjudged a lunatic,) and afterwards hise:lteoutpr. The interest. of Phillips, who is made one of the defeJ;id2\nts, WAS really with the complainants. It appears that she had an ,equal 'interest :with'each of the complainants in whatever might be reo.overedby the bill. , This motfon is made to dismiss the bill for want jurisdiction .on account of citizenship of the parties; the contention being thall Mrs. Phillips should be,a party complainant, and should now be consid.eredsnch, and therefore her citizenship and residence in Georgia would defeat the jurisdiction. Fulton Colvilk, for complainants. B. H. Hill. for defendants. District Judge. It will be perceived thatthis bill has been in court for 14 years, and no question of jurisdiction has ever been raised in it. The defendant Waddell, who now makes the que&NEWMAN,
In Equity. Bill by John M. Claiborne and others against John O. Waddell and others. Heard on motion to dismiss for want of jurisdic-