132 US 34 Campbell v. Wade

132 U.S. 34

10 S.Ct. 9

33 L.Ed. 240


October 28, 1889.

[Statement of Case from pages 34-36 intentionally omitted]

John B. Rector, for plaintiff in error.

Mr. Justice FIELD, after stating the facts as above, delivered the opinion of the court.

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It was contended in the state courts, and the contention is renewed here, that the petitioner, by his application for a survey, had acquired a vested interest in the lands he desired to purchase, which could not be impaired by their subsequent withdrawal from sale. This position is clearly untenable. The application was only one of different steps, all of which were necessary to be performed before the applicant could acquire any right against the state. The application was to be followed by a survey, and the survey or was allowed three months in which to make it. By the express terms of the act, it was only after the return and filing in the general land-office of the surveyor's certificate, map, and field-notes of the survey that the applicant acquired the right to purchase the land by paying the purchase money within 60 days thereafter. But for this declaration of the act, we might doubt whether a right to purchase could be considered as conferred by the mere survey so as to bind the state. Clearly, there was no such right in advance of the survey. The state was under no obligation to continue the law in force because of the application of any one to purchase. It entered into no such contract with the public. The application did not bind the applicant to proceed any further in the matter; nor, in the absence of other proceedings, could it bind the state to sell the lands. The adjudications are numerous where the with drawal from sale by the government of lands previously opened to sale has been adjudged to put an end to proceedings instituted for their acquisition. Thus, under the preemption laws of the United States, large portions of the public domain are opened to settlement and sale, and parties having the requisite qualifications are allowed to acquire the title to tracts of a specific amount by occupation and improvement, and their entry at the appropriate land-of-fice, and payment of the prescribed price. But it has always been held that occupation and improvement of the tracts desired, with a view to pre-emption, though absolutely essential for that purpose, do not confer upon the settler any right in the land occupied, as against the United States, which could impair in any respect the power of congress to withdraw the land from sale for the uses of the government, or to dispose of the same to other parties. This subject was fully considered in Frisbie v. Whitney, 9 Wall. 187, where this doctrine was announced. It was subsequently affirmed in the Yosemite Valley Case, 15 Wall. 77, where the court said that, until all the preliminary steps prescribed by law for the acquisition of the property were complied with, the settler did not obtain any title against the United States, and that among these were entry of the land at the appropriate land-office, and payment of its price. 'Until such payment and entry,' the court said, 'the acts of congress give to the settler only a privilege of pre-emption in case the lands are offered for sale in the usual manner; that is, the privilege to purchase them in that event in preference to others. The United States, by those acts, enter into no contract with the settler, and incur no obligation to any one that the land occupied by him shall ever be put up for sale. They simply declare that, in case any of their lands are thrown open for sale, the privilege to purchase them in limited quantities, at fixed prices, shall be first given to parties who have settled upon and improved them.' In the present case, before the act withdrawing the lands from sale, which was equivalent to a repeal of the act authorizing the sale, could be held to impair any vested right of the applicant, he must have done everything required by law to secure such right. Until then, no contract could arise in any way binding upon the state. No contract rights of the petitioner were therefore violated by its legislation. The law in this respect is very clearly stated in the opinion of the commissioner of appeals of Texas, adopted by the supreme court of that state. Judgment affirmed.