196 U.S. 100
SALLIE FIELD SCOTT, Eliza Madison Scott, Harriet B. Jones, et al., Appts.,
LIZZIE W. CAREW, W. W. Hampton, E. R. Gunby, et al.
Argued November 7, 8, 1904.
Decided January 3, 1905.
On December 31, 1900, the plaintiffs, who are now appellants, filed their bill of complaint in the circuit court of the [196 U.S. 100, 101] United States for the southern district of Florida, praying a decree that the defendants, holding the legal title to a tract of land under patent from the United States, be decreed to hold that title in trust for them. A demurrer to the bill was sustained, and a decree of dismissal entered. This was affirmed by the circuit court of appeals for the fifth circuit, and from that affirmance this appeal was taken.
The averments in the bill are: The plaintiffs are the sole descendants and heirs at law of Robert J. Hackley, who died in 1845. In November, 1823, Hackley, then over twenty-one years of age, and the head of a family, settled upon and cultivated the tract in controversy. At that time the surrounding country was a dense wilderness, and he the only settler. He erected on the tract a substantial dwelling and other buildings. In 1824 Colonel Brooke, with a detachment of United States troops, was sent to this portion of Florida, located a camp or cantonment on this tract, dispossessed Hackley, and took possession of the house and land so occupied and cultivated by him. The Secretary of the Interior, in the contest proceedings hereinafter referred to, in an opinion which is attached to the bill as an exhibit, found that this action was taken by order of the War Department. United States troops continued to occupy the camp or cantonment until December 10, 1830, when by an executive order of the President the Fort Brooke military reservation was established, containing 16 square miles of land, and embracing the tract in controversy. Thereafter this military reservation was reduced from time to time by executive orders, until on June 1, 1878, only the tract in controversy, commonly known as the 'Reduced Fort Brooke military reservation,' remained. On January 4, 1883, it was relinquished, and transferred by the Secretary of War to the Interior Department. Hackley, after his removal from the tract, remained a resident of Florida up to the time of his death. On March 3, 1823, Congress passed an act [3 Stat. at L. 754, chap. 29] authorizing the President to establish a land office in each of the districts of east and west Florida as soon as, in his [196 U.S. 100, 102] opinion, there was a sufficient quantity of public land surveyed to justify it. Under this act, and by an executive order in 1828, a land office was established at St. Augustine, in the district in which this land was situate. At the time this office was established the hostility of the Indian tribes was such as to render communication between it and that portion of Florida where Hackley resided practically impossible. But in the year 1835, although the public surveys had not been extended into this part of Florida, Hackley filed with the register of the land office evidence designating the particular tract which had been settled upon, inhabited, and cultivated by him as aforesaid, and claimed the right of preemption and purchase thereof under and by virtue of the act of Congress of April 22, 1826 [4 Stat. at L. 154, chap. 28]. By change of the boundary lines of the land districts of Florida the land subsequently came within the jurisdiction of the land office at Newnansville, Florida, whereupon, on November 27, 1843, Hackley secured from the register of the land office at St. Augustine a copy of the evidence formerly filed in that office, and filed it with a notice of his claim with the register of the office at Newnansville. On September 26, 1887, the administrator of the estate of Hackley filed in the local land office a supplemental notice of the claim of the legal representatives of Hackley to the right of pre-emption in the purchase of the tract. Other parties made application to the Land Department for an entry of said lands, contest proceedings were had, which were terminated by a decision of the Secretary of the Interior adverse to the claim of the plaintiffs, and a patent was issued to Edmund S. Carew, under whom the defendants claim.
The following statutes are relied upon by the parties: Act of Congress, March 3, 1807 (2 Stat. at L. 445, chap. 46), 1 of which provides:
The other sections have no application to this case.
On February 5, 1813 (2 Stat. at L. 797, chap. 20), the following act was passed:
And on April 22, 1826 (4 Stat. at L. 154, chap. 28), Congress passed another act, the 1st section of which reads as follows:
Messrs. Henry W. Anderson, Francis P. Fleming, William H. Lamar, George H. Lamer, Francis P. Fleming, Jr., Beverley B. Mumford, Eppa Hunton, Jr., and E. Randolph Williams for appellants.
[196 U.S. 100, 108] Messrs. William Wade Hampton, Edward R. Gunby, and Horatio Bisbee for appellees.
Mr. Justice Brewer delivered the opinion of the court:
The vital question in this case is whether Hackley could claim the benefit of the act of 1826, in reference to the tract in [196 U.S. 100, 109] controversy. Prior to that act he was wrongfully in possession of the tract, and could have been summarily removed by order of the President. Act of March 3, 1807. His dispossession was by authority of law. It was done in the exercise of the power vested in the President as Commander-in- Chief of the Army, the order of the War Department being presumed to be that of the President. The occupation of the tract by the United States troops was rightful, being an occupation of property of the government by direction of the proper officer, and that rightful occupation continued until the act was passed. It is unnecessary to rest the case upon the clause in the act of 1826, 'which tract is not rightfully claimed by any other person,' although that is not without significance, or to discuss the question whether the United States can be considered another person. A more substantial reason is to be found in the rule that whenever a statute is passed containing a general provision for the disposal of public lands, it is, unless an intent to the contrary is clearly manifest by its terms, to be held inapplicable to lands which for some special public purpose have been in accordance with law taken full possession of by and are in the actual occupation of the government. Where particular tracts have been taken possession of by rightful orders of an executive department, to be used for some public purpose, Congress in legislating will be presumed to have intended no interference with such possession nor a sale or disposal of the property to private individuals. Such has been the rule obtaining in the Land Department, as well as in the courts. An early case was Wilcox v. Jackson, 13 Pet. 498, 10 L. ed. 264. That case rested upon a claim of right of pre-emption under the act of June 19, 1834 (4 Stat. at L. 678, chap. 54), which revived an act passed May 29, 1830 (4 Stat. at L. 420, chap. 208.), containing these provisions:
It appeared that at the request of the Secretary of War the Commissioner of the General Land Office had marked upon the official map of that Department the tract in controversy as reserved for military purposes, and directed it to be withheld from sale. The court held that this action was that of the President, saying (p. 513, L. ed. p. 271):
And, going beyond the special language of the act in respect to the sale of lands, the court observed:
In Leavenworth, L. & G. R. Co. v. United States, 92 U.S. 733, 745 , 23 S. L. ed. 634, 639, the doctrine announced in Wilcox v. Jackson, 13 Pet. 498, 10 L. ed. 264, was reaffirmed; the court, quoting the first paragraph in the last quotation, added: 'It may be urged that it was not necessary in deciding that case to pass upon the question; but, however this may be, the principle asserted is sound and reasonable, and we accept it as a rule of construction.' In that case it was held that a grant of public lands in aid of a railroad did not apply to lands included within an Indian reservation, and that it was immaterial that the reservation was afterwards set aside, and the lands had become a part of the public lands of the nation. Newhall v. Sanger, 92 U.S. 761 , 23 L. ed. 769, ruled that lands within the boundaries of an alleged Mexican or Spanish grant which was sub judice at the time the Secretary of the Interior ordered a withdrawal of lands along the route of the road, were not embraced by a grant to a railroad company, and it was said in the opinion (p. 763, L. ed. p. 770): 'The words 'public lands' are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.'
In Shively v. Bowlby, 152 U.S. 1 , 38 L. ed. 331, 14 Sup. Ct. Rep. 548, it was held that, while Congress has power to grant lands below high- water mark in navigable waters, yet the fact that the public surveys are made to terminate on the banks or shores of those waters, indicates that such lands are not subject to entry and sale under the general land laws, but, so far as they are situated in a territory, are reserved for the use and control of the future state. This doctrine was reaffirmed in Mann v. Tacoma Land Co. 153 U.S. 273 , 38 L. ed. 714, 14 Sup. Ct. Rep. 820. Many authorities might be cited to the proposition that prior approriation is always understood to except lands from the scope of a subsequent grant, although no refer- [196 U.S. 100, 112] ence is made in the latter to the former. See Lake Superior Ship Canal, R . & Iron Co. v. Cunningham, 155 U.S. 354, 373 , 39 S. L. ed. 183, 189, 15 Sup. Ct. Rep. 103.
There is nothing in United States v. Fitzgerald, 15 Pet. 407, 10 L. ed 785, to conflict with the foregoing views. It merely decided that an officer of the United States (in that case an inspector of customs) was not deprived by any act of Congress of the benefit of the pre-emption laws, and the fact that he was put in possession of a tract of land by the collector of customs, who had received no instructions to that effect from the Treasury Department was not an appropriation to the uses of the government. It is true a letter from the acting commissioner of the General Land Office to the register at New Orleans, stating that the Secretary of the Treasury had directed that the tract be reserved from sale for the use of the custom house at New Orleans, and requesting the register to note upon his plats that it was so reserved from sale, was in evidence, but this was written two years after the inspector had entered and paid for the land. Of course, such attempted reservation could have no effect upon a title acquired by the entryman prior thereto. Nor is there any conflict in United States v. Tichenor, 8 Sawy. 142, 12 Fed. 415. There it appeared that the commanding officer of United States troops in Oregon ordered that a military reservation be established on the tract in controversy. In obedience thereto, a lieutenant erected some buildings thereon for the use of the soldiers. It was held by the circuit court that such action constituted no appropriation of the land so as to exempt it from the operation of the general land laws. But the ground of the decision was that the general commanding was acting without any direction from the President or the War Department, the court saying (p. 151, Fed. p. 423):
Again, it is urged that the establishment of this camp or cantonment was a mere temporary matter, and not to be considered as in the nature of a reservation or appropriation, and we are referred to orders and other papers found in the records of the War Department, copies of which appear in the brief of appellants' counsel. Those orders, if we are permitted to consider them on this demurrer, make distinctly against the contentions of counsel. We quote from that issued from the Adjutant General's office:
Brevet Col. Brooke, with four companies of the Fourth Infantry, will proceed with as little delay as practicable to Tampa bay, east Florida, where he will establish a military post. He will select a position with a view to the health and in reference to the Florida Indians about to be removed to that vicinity agreeable to the late treaty. Upon this point he will consult Col. Gadsden, the commissioner employed in locating the Indians. . . .
The permanent headquarters of the Fourth Infantry will remain at Cantonment Clinch, and, should Col. Clinch have rejoined his regiment, on the receipt of this order he will be charged with the duty of preparing Col. Brooke's command for the expedition to Tampa.
By order of Major Gen. Brown.
E. Kirby, Aide-de-Camp.
It will be seen that the direction is to 'establish a military post.' It was for this 'post' that the tract in controversy was taken, and the statement in the report of Colonel Brooke, as one of the reasons for its selection, that, some 2 miles in [196 U.S. 100, 114] the rear of the place, a ridge of piney lands commences, to which the troops could retire with their tents on the slightest manifestation of disease, does not alter the fact that this tract was selected for the 'post.' The further fact that permanent headquarters of the Fourth Infantry were to remain at Cantonment Clinch is entirely consistent with the direction to Colonel Brooke to proceed with four companies to Tampa bay and there establish this military post. The judgment of the War Department, whose action is presumed to be the action of the Presidtent, was that, having reference to the Florida Indians who were about to be removed to that vicinity, it was important to have a military post established. Its permanence would depend largely on the developments of the future. It remained a military post for half a century, and a very large tract was, in 1830, set apart for a surrounding reservation. True, it has since been all abandoned, but, although it may have been within the contemplation of the authorities that a time would come when the necessity for this military post would cease, it was none the less for the time being a post established by the proper department of the government. It was until the post was abandoned an appropriation of the land for military purposes. Quite a number of reservations and posts in our western territory, once established, have afterwards been abandoned; but, while so appropriated they are excepted from the operation of the public land laws, and no right of an individual settler, attaches to, or hangs over, the land to interfere with such action as the government may thereafter see fit to take in respect to it. No cloud can be cast upon the title of the government,-nothing done by an individual to embarrass it in the future disposition of the land.
Without considering, therefore, the question of laches or limitation, we are of opinion that the decision of the Court of Appeals was correct, and it is affirmed.