DULUTH AND IRON RANGE RAILROAD COMPANY

v.

ROY

Mr. Justice McKeNNA,

after stating the facts, delivered the opinion of the court.

Do the facts entitle the defendant in error to the relief which was awarded him by the state courts ? It is now too well 'established to need argument to support .or a citation of authorities, that whén a patent is obtained from the United States by fraud, mistake or imposition, the question thence arising becomes one -of private right, and the courts in a proper proceeding and in execution of justice Will divest or control the title, thereby acquired either by compelling a conveyance to the plaintiff or by quieting his title as against the defendants, and enjoining them from asserting theirs. And in two late cases, Germania Iron Co. v. United States, 165 U. S. 379; Williams v. United States, 138 U. S. 514, it was decided that this power extends to cases in which the patent was issued by inadvertence and mistake, the grounds relied on in the case at bar. The plaintiff, in error, however-, contends tjiat defendant .in error cannot invoke this doctrine because he is not in privity with the United States; that he has not proved or offered to prove or established, or even alleged in this case, the ultimate facts upon which alone his claim could be recognized or its validity established. In other words, that he has not made or has not offered to make final proof.

This contention is attempted to be supported by the principles announced in. Bohall v. Dilla, 114 U. S. 47; Sparks v. Pierce, 115 U. S. 408; Lee v. Johnson, 116 U. S. 48. The principles are that to enable one to attack a patent from the Government he must show that he himself was entitled to it. It is not sufficient for him to show that there may have been error in adjudging the title to the patentee. He must show that by the law properly administered the title should have been awarded to him.

¥e do not question these principles, but they only mean that the claimant against the patent must so far bring himself within the laws as to entitle him, if not obstructed or .prevented, to complete his claim. It does not mean that, at the moment of time the patent issued it should have been awarded to him. The acts performed by him may or may not have reached that completeness; may not have reached it, and yet justify relief, as in Ard v. Brandon, 156 U. S. 537, and in Morrison v. Stalnaker, 104 U. S. 1213. And because of the well-established principle that where an individual in the prosecution of a right has done that which the law requires him to do, and he has failed to attain his right by the misconduct or neglect of a public officer, the law will protect him. Lytle v. Arkansas, 9 How. 314.

It would be arbitrary to apply the principle to some acts and not to others — might destroy it utterly to require the performance of all. .But we are indisposed to extend the argument, because we regard Ard v. Brandon as decisive.

In that case the claimant against the patent, being qualified and entitled, offered to make final proof, and from the denial of the offer prosecuted appeals successively to the Commissioner of the General Land Office and the Secretary of the Interior, and each decided against him. In this case defendant in error, also being qualified and entitled, offered to enter the land, which offer was denied, and against the claim of the State of Minnesota he instituted a contest, which was pending in the General Land Office, when the patent was issued by inadvertence and mistake, and his right thereby defeated. "We do not regard this difference in the cases substantial.

But it is urged defendant in error may not be able to make final proof, and that the Land Department, whose jurisdiction is exclusive, may determine the lands not to be swamp or overflowed. Neither supposition can be indulged. The findings by the court show full qualification in the defendant in error and we cannot presume that the Land Department will find against the fact, which the state courts have found, that the lands “ were not, at the time of the passage of the act of March 12, 1860, nor were they ever nor are they now, swamp, wet or overflowed, or unfit for cultivation.”

In Ard v. Brandon relief was adjudged against title derived under patents — one from the State of land certified to it by the United States and one directly from the United States. Equally is the defendant in error entitled to relief against the title claimed by plaintiff in error. Judgment affirmed.