Brown v. Hitchcock

by David Josiah Brewer

United States Supreme Court

173 U.S. 473

Brown  v.  Hitchcock

On May 10, 1898, the appellant, as plaintiff, filed in the supreme court of the District of Columbia his bill, setting forth, besides certain jurisdictional matters, the swampland act of September 28, 1850; the extension of that act to all the states by the act of March 12, 1860; a selection of lands thereunder by the state of Oregon (evidenced by what is called 'List No. 5'), and an approval on September 16, 1882, of that selection by the secretary of the interior; a purchase in 1880 from the state by H. C. Owen of certain of those selected lands, and subsequent conveyances thereof to plaintiff. Then, after showing the appointment of Hon. William F. Vilas as secretary of the interior, the bill proceeds:

'That, as plaintiff is informed and believes, on the 27th day of December, A. D. 1888, the said secretary of the interior, then the said William F. Vilas, made and entered an order annulling, canceling, and revoking the said list number 5, and the approval thereof, and annulling and revoking the said judgment and determination so made by his said predecessor in said office, the aid Henry M. Teller, whereby his said predecessor had adjudged and determined that the lands aforesaid were swamp and overflowed lands, within the meaning of the acts aforesaid, and made and entered an order purporting to adjudge and determine that certain of the lands described in said list number 5, including the lands hereinbefore described, were not swamp and overflowed lands, within the meaning of the acts aforesaid.

'That thereafter, as plaintiff is informed and believes, divers proceedings were taken before the said secretary of the interior and in the general land office of the United States by the state of Oregon, and by the grantors of this plaintiff, to set aside and have held for naught the orders and rulings so made by the said William F. Vilas as such secretary of the interior, which proceedings came to an end within one year last past.

'That, as plaintiff is informed and believes, since the said proceedings last aforesaid came to an end, the defendant, as such secretary of the interior, is proceeding to put in force and to carry out the orders and rulings so as aforesaid made by the said William F. Vilas as such secretary of the interior, and to hold the lands hereinbefore described to be public lands of the United States, and subject to entry under the laws of the United States, and threatens and intends to receive and permit the officers of the land department of the United States to receive applications for and allow entries of the lands aforesaid as public lands of the United States.'

After alleging the invalidity of these proceedings, the bill goes on to aver that the proceedings thus initiated by Secretary Vilas throws a cloud upon appellant's title, 'and is likely to cause many persons to attempt to settle upon the said lands, and to enter the same in the land department of the United States as public lands of the United States subject to such entry, and that plaintiff will be unable to remove such persons from said lands, or to quiet his title thereto as against them, without a multiplicity of suits, and that, therefore, this plaintiff is entitled in this court to an order enjoining and restraining the defendant, as such secretary of the interior, and his subordinate officers of the land department of the United States, from in any way carrying said last-mentioned orders and rulings into effect, and from permitting any entries upon said lands, or holding the same open to entry, and from in any way interfering with or embarrassing the plaintiff in his title and ownership of the lands aforesaid.'

Upon these facts, plaintiff prayed a decree canceling the order of December 27, 1888, restraining the officers of the land department from carrying it into effect, and forbidding the defendant and his subordinates from holding the lands to be public lands of the United States, or subject to entry under the general land laws. To this bill a demurrer was filed, which was sustained, and the bill dismissed. Plaintiff appealed to the court of appeals of the District, and, upon an affirmance of the decree by that court, brought the decision here for review.

W. B. Treadwell and C. A. Keigwin, for appellant.

Willis Van Devanter, Asst. Atty. Gen., for appellee.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

Notes