IN RE EMBLEN, PETITIONER
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Emblen sought a writ of mandamus against the Secretary of the Interior to review a land preemption contest decision favoring Weed, but the Supreme Court denied the petition, holding that disputes over preemption rights and the issuance of land patents are within the exclusive jurisdiction of the land department and cannot be controlled by mandamus, and that once a patent is issued, the only available remedy is an equity action against the patentee rather than judicial review of the administrative decision.
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Mr. Justice Gray,
after stating the case, delivered the opinion of the court.
This is an attempt to use a writ.of mandamus to the Secretary of the Interior as a writ of error to review his acts, and to draw into the' jurisdiction of the courts matters which are within the exclusive cognizance of the land department.
By section 2273 of the Revised Statutes, “ When two or more persons settle on the same tract of land, the right of preemption shall be in him who made the first settlement, provided such person conforms to the other provision of the law; and all questions as to the right of preemption arising between different settlers shall be determined by the register and receiver of the district within which the land is situated; and appeals from the decision of district officers, in .cases of contest for the right of preemption, shall be made to the Commissioner of the General Land Office, whose decision shall be final, unless appeal therefrom be taken to the Secretary of the Interior.”
By the act of May 14, 1880, c. 89, .§ 2, “ In all cases where any person has contested, paid the land office fees, and procured the cancellation of any preemption, homestead or timber-culture .entry, he shall be notified by the register of the land office of the district in which such land is situated of such cancellation, and shall be allowed thirty days from date of such notice to enter said lands.” 21 Stat. 141.
The contest between Emblen and Weed was conducted in accordance with these statutes. After the last decision of the register and receiver, affirmed by the Commissioner of the General Land Office, and by the Secretary of the Interior, in favor of Weed; and after the Secretary of the Interior had granted a petition of Emblen for a rehearing, and before the rehearing had been had; Congress passed an act confirming Weed’s entry, and directing that a patent issue to him for the land in controversy. The Secretary of the Interior thereupon suspended the pending proceedings, and declined to authorize any further hearing of the contest;' and a patent was actually issued to Weed before this petition for a writ of mandamus was filed.
Such being the state of the case, it is quite clear that (even if the act of Congress was unconstitutional, which we do not intimate) the writ, of mandamus prayed for should not be granted. The determination of the contest between the claimants of conflicting rights of preemption, as well as the issue of a patent to either, was within the general jurisdiction and authority of the land department, and cannot be controlled or restrained by mandamus or injunction. After the patent has once been issued, the original contest is no longer within the jurisdiction of the land department. The patent conveys the legal title to the patentee; and cannot be revoked or set aside, except upon judicial proceedings instituted in behalf of the United States. The only remedy of Emblen is by bill in equity to charge Weed with a trust in his favor. All this is clearly settled by previous decisions of this court, including some of those on which the petitioner most relies. Johnson v. Towsley, 13 Wall. 72; Moore v. Robbins, 96 U. S. 530; Marquez v. Frisbie, 101 U. S. 473; Smelting Co. v. Kemp, 104 U. S. 636; Steel v. Smelting Co., 106 U. S. 447; Monroe Cattle Co. v. Becker, 147 U. S. 47; Turner v. Sawyer, 150 U. S. 578, 586.
Writ of mandamus denied.
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Putnam v. Ickes, 78 F.2d 223 (D.C. Cir. 1935)…re he declared: “The principle is well settled, in other cases, that a patent is unassailable by any title commenced after its emanation.” This rule has been affirmed in many cases. Hosmer v. Wallace, 97 U. S. 575, 579, 24 L. Ed. 1130; In re Emblen, 161 U. S. 52, 54, 56, 16 S. Ct. 487, 40 L. Ed. 613; Emblen v. Lincoln Land Co., 184 U. S. 660, 664, 22 S. Ct. 523, 46 L. Ed. 736; Hodges v. Colcord, 193 U. S. 192, 24 S. Ct. 433, 48 L. Ed. 677; McMichael v. Murphy, 197 U. S. 304, 25 S. Ct. 460, 49 L. Ed. 766. I…1 / 2
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Greenameyer v. Coate, 212 U.S. 434 (U.S. 1909)
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Bockfinger v. Foster, 190 U.S. 116 (U.S. 1903)…90; consequently, what was said in that case as to the scope of the act is pertinent here. Several cases were cited in argument as sustaining such a construction of the act of Congress as would authorize a suit like this. We allude to In re Emblen, 161 U. S. 52, 56; Germania Iron Co. v. United States, 165 U. S. 379; and Payne v. Robertson, 169 U. S. 323. In Emblen's case it appeared that pending a contest before the Secretary of the Interior between Emblen and Weed as to whom a patent should be issued for…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited (20 total)
- De la Fayette Wilcox v. Jackson, 13 Pet. 498 (U.S. 1839)
- McPHERSON v. Blacker, 146 U.S. 1 (U.S. 1892)
- Smelting Co. v. Kemp, 104 U.S. 636 (U.S. 1881)
- Johnson v. Towsley, 13 Wall. 72 (U.S. 1871)
- In re Hohorst, 150 U.S. 653 (U.S. 1893)
- Shepley v. Cowan, 91 U.S. 330 (U.S. 1875)
- Steel v. Smelting Co., 106 U.S. 447 (U.S. 1882)
- Moore v. Robbins, 96 U.S. 530 (U.S. 1877)
- Marquez v. Frisbie, 101 U.S. 473 (U.S. 1879)
- Kan. Pac. Ry. Co. v. Dunmeyer, 113 U.S. 629 (U.S. 1885)