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SCOTT V. CAREW, 196 U. S. 100 (1905)

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U.S. Supreme Court

Scott v. Carew, 196 U.S. 100 (1905)

Scott v. Carew

No. 52

Argued November 7-8, 1904

Decided January 3, 1905

196 U.S. 100


Unless an intent to the contrary is clearly manifest by its terms, a statute providing generally for the disposal of public lands is inapplicable to lands taken possession of and occupied by the government for a special purpose.

A prior appropriation is always presumed to except land from the scope of a subsequent grant, although no reference may be made in the latter to the former.

The establishment of a military post under proper orders on public lands amounts to an appropriation of the land for military purposes, and withdraws the property occupied from the effect of general laws subsequently passed for the disposal of public lands, and no right of an individual settler attaches to or hangs over the land to interfere with the action of the government in regard thereto.

One who wrongfully settled on public land and was dispossessed by proper authority so that the land might be used for a military post acquired by such settlement no priority of right in the matter of purchase or homestead entry when the post was abandoned and the land opened to private purchase.

On December 31, 1900, the plaintiffs, who are now appellants, filed their bill of complaint in the Circuit Court of the chanroblesvirtualawlibrary

Page 196 U. S. 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 sixteen 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 authorizing the President to establish a land office in each of the districts of east and west Florida as soon as in his chanroblesvirtualawlibrary

Page 196 U. S. 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. 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 preemption 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. 445, section 1 of which provides:

"That, if any person or persons shall, after the passing of this act, take possession of, or make a settlement on, any lands ceded or secured to the United States, by any treaty made with a foreign nation, or by a cession from any state to the

Page 196 U. S. 103

United States, which lands shall not have been previously sold, ceded, or leased by the United States, or the claim to which lands, by such person or persons, shall not have been previously recognized and confirmed by the United States; or if any person or persons shall cause such lands to be thus occupied, taken possession of, or settled, or shall survey, or attempt to survey, or cause to be surveyed any such lands, or designate any boundaries thereon by marking trees or otherwise, until thereto duly authorized by law -- such offender or offenders shall forfeit all his or their right, title, and claim, if any he hath, or they have, of whatsoever nature or kind the same shall or may be, to the lands aforesaid, which he or they shall have taken possession of, or settled, or cause to be occupied, taken possession of, or settled, or which he or they shall have surveyed, or attempted to survey, or cause to be surveyed, or the boundaries thereof he or they shall have designated, or cause to be designated, by marking trees or otherwise. And it shall, moreover, be lawful for the President of the United States to direct the marshal, or officer acting as marshal, in the manner hereinafter directed, and also to take such other measures, and to employ such military force, as he may judge necessary and proper, to remove from lands ceded or secured to the United States by treaty or cession as aforesaid, any person or persons who shall hereafter take possession of the same, or make, or attempt to make, a settlement thereon, until thereunto authorized by law. And every right, title, or claim, forfeited under this act, shall be taken and deemed to be vested in the United States, without any other or further proceedings."

The other sections have no application to this case.

On February 5, 1813, 2 Stat. 797, the following act was passed:

"That every person, or legal representative of every person, who has actually in Stat. 797, the following act was passed:

"That every person, or legal representative of every person, who has actually in Stat. 797, the following act was passed:

"That every person, or legal representative of every person, who has actually inhabited and cultivated a tract of land lying in either of the districts established for the sale of public lands, in the Illinois Territory, which tract is not rightfully claimed

Page 196 U. S. 104

by any other person, and who shall not have removed from said territory, every such person and his legal representatives shall be entitled to a preference in becoming the purchaser from the United States of such tract of land at private sale at the same price and on the same terms and conditions in every respect as are or may be provided by law for the sale of other lands sold at private sale in said territory at the time of making such purchase: Provided, That no more than one-quarter section of land shall be sold to any one individual in virtue of this act, and the same shall be bounded by the sectional and divisional lines run, or to be run, under the direction of the surveyor general for the division of the public lands: Provided also, That no lands reserved from sale by former acts, or lands which have been directed to be sold in town lots, and out lots, shall be sold under this act."

"SEC. 2. And be it further enacted that every person claiming a preference in becoming the purchaser of a tract of land in virtue of this act shall make known his claim by delivering a notice in writing to the register of the land office for the district in which the land may lie wherein he shall particularly designate the quarter section he claims, which notice the register shall file in his office, on receiving twenty-five cents from the person delivering the same. And in every case where it shall appear to the satisfaction of the register and receiver of public moneys of the land office that any person who has delivered his notice of claim is entitled, according to the provisions of this act, to a preference in becoming the purchaser of a quarter section of land, such person so entitled shall have a right to enter the same with the register of the land office, on producing his receipt from the receiver of public moneys for at least one-twentieth part of the purchase money, as in case of other public lands sold at private sale: Provided, That all lands to be sold under this act shall be entered with the register at least two weeks before the time of the commencement of the public sales, in the district wherein the land lies, and every person having a right of preference in becoming the

Page 196 U. S. 105

purchaser of a tract of land, who shall fail so to make his entry with the register within the time prescribed, his right shall be forfeited, and the land by him claimed shall be offered at public sale, with the other public lands in the district to which it belongs."

And on April 22, 1826, 4 Stat. 154, Congress passed another act, the first section of which reads as follows:

"That every person, or the legal representatives of any person, who, being either the head of a family, or twenty-one years of age, did on or before the first day of January, in the year one thousand eight hundred and twenty-five, actually inhabit and cultivate a tract of land situated in the Territory of Florida, which tract is not rightfully claimed by any other person, and who shall not have removed from the said territory, shall be entitled to the right of preemption in the purchase thereof under the same terms, restrictions, conditions, provisions, and regulations, in every respect, as are directed by the act entitled 'An Act Giving the Right of Preemption, in the Purchase of Lands, to Certain Settlers in the Illinois Territory,' passed February the fifth, one thousand eight hundred and thirteen: Provided, That no person shall be entitled to the provisions of this section who claims any tract of land in said territory by virtue of a confirmation of the commissioners or by virtue of any act of Congress. "

Page 196 U. S. 108

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