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a decision) as to the status of the land. This rule makes it the duty of the local land officers to merely forward the various applications to the General Land Office, and an original decision is to be made by the latter office upon the papers transmitted to it.”

Indeed, as I read this decision, it is not only conclusive that equitable title does pass to the applicant upon approval by the General Land Office, but, also, that it does not pass until such approval is given. Speaking of the contention that the act of June 4, 1897, constitutes a standing offer on the part of the government to exchange any of its vacant lands open to settlement for a similar area of land in a forest reserve, and that whenever a person relinquishes to the government a tract in a forest reserve and places his deed of record, as required by the Land Department rules, and selects in lieu thereof a similar area of vacant land, open to settlement, such offer of the government has thereupon been both accepted and fully complied with, and that a complete equitable title to the selected lands is thereby vested in the selector, the court says:

“But even the complete equitable title asserted by complainant must, as it would seem, be based upon the alleged right of the local land officers to accept the deed and approve the selection, even though such approval may be thereafter the subject of a review in the nature of an appeal from the action of the local officers. There must be a decision made somewhere regarding the rights asserted by the selector of land under the act before a complete equitable title to the land can exist. The mere filing of papers cannot create such title. The application must comply with and conform to the statute, and the selector cannot decide the question for himself.

“We do not see how it can be successfully maintained that, without any decision by an official representing the government, and by merely filing the deed relinquishing to the government a tract of forest reserve land and assuming to select a similar area of vacant land open to settlement, the selector has thereby acquired a complete equitable title to the selected land.

The selector has not acquired title simply because he has selected land which he claims was at the time of selection vacant land open to settlement, nor does the filing of his deed conveying the land relinquished and the abstract of title with it show necessarily that he was the owner of the land as provided for by the statute. So far as his action goes, it is an assertion on his part that he was the owner in fee simple of the land he proposed to relinquish, and that the deed conveys a fee-simple title to the government, and also that he has selected vacant land which is open to settlement, and that, therefore, he is entitled to a patent for such land. These assertions may or may not be true. Who is to decide? Complainant asserts that if a decision be necessary before the vesting of a complete equitable title that, in that case, the local officers are to decide that question, and, by accepting the deed and making the certificate already mentioned, they have decided it, and thereupon, at all events, the complete, equitable title accrued, even though such decision were subject to a review by the Commissioner of the General Land Office and thereafter by the Secretary.

“But, as has already been stated, there is nothing in the statute of 1897 which gives the local land officers the right to decide whether the selector has complied with the provisions of the act, and, unless those officers had that power, they did not acquire it by assuming to exercise it. We do not say that did so assume. They received, accepted and filed the deed, the abstract of title, the nonmineral affidavit, and the selection as made by Clarke. They entered that selection upon the official records of the land office, and they certified that it was free from conflict, and that there was no adverse filing, entry, or claim thereto, but it cannot be said that they decided that the selector had complied with the provisions of the statute or that he had done all that he ought to have done in order to acquire his alleged, complete equitable title.

"Their certificate that the land was free from conflict was simply a certificate as to what appeared on the books of the local office, and the same may be said of the statement that there was no adverse filing, entry, or claim thereto upon such books. No affidavit of nonoccupancy was filed, and they did not certify that the land so selected was, in fact, vacant or unoccupied, nor did they assume to certify that the selected land contained no minerals, although an affidavit to that effect was presented to them. In truth, all that these local officers did was to certify that the selector had done certain things, and that the land selected was vacant and open to settlement so far as it appeared from the books of the local land office.

"Taking into consideration, however, the fact that the statute did not vest the local officers with the right to decide upon the question of a compliance with its terms, and the further fact that the Land Department had adopted rule 18, above referred to, which provides for the forwarding of all applications for change of entry or settlement to the Commissioner of the General

and Office for his consideration, together with a report as to the status of the tract applied for, we must conclude that the action of the local officers did not, as it could not, amount to a decision upon the application of the selector, so that he became vested with the equitable title to the land he assumed to select. It is certain as we have already remarked, there must be some decision upon that question before any equitable title can be claimedsome decision by an officer authorized to make it. Under the rule above cited that decision has not been made. The General Land Office has (so far as this record shows) come to no conclusion in regard to it.”

In the case of the State of Minnesota v. Itaska Lumber Co. (recently decided by the Supreme Court of the state of Minnesota) 111 N. W. 276, a certified copy of which decision has been furnished me, one of the syllabi is as follows:

"During the time which elapses between the filing of an application for the location of scrip upon certain lands belonging to the United States and the approval of the application by the Commissioner of the General Land Office, the land described is not subject to taxation by the state."

And in the course of its opinion the court says:

“But, before the land can be taxed by the state as the property of the beneficial owner, the perfect equitable title must be vested and the consideration fully paid to the United States. * * * The presentation of the scrip with an application to locate it upon certain land gave the applicant the preference over other subsequent claimants of the land, but, until the application was approved and acted upon by the commissioner, the applicant acquired no interest, legal or equitable, in the land as against the United States. During the intervening time, it might have been withdrawn from entry or disposed of by the government in some other manner. Payment for the land was not made until the scrip was approved and the receipt therefor issued.”

And, speaking of the contention that the title or interest of the selector should by the application of the doctrine of relation be carried back to the date of the presentation of the scrip, the court says that such doctrine is never applied except when necessary to give effect to an act or instrument, the operation of which would otherwise be defeated, and that the doctrine has no application to a case of this character.

Among other cases in harmony with the view that the equitable title does not vest in the selector, and hence that he has no title which is subject to taxation by the state, until the selection is approved by some authorized officer of the government, are the following: Decision on Demurrer in this case, Judge Beatty; Sjoli v. Dreschel, 199 U. S. 564, 26 Sup. Ct. 154, 50 L. Ed. 311; Grant v. Railway

. 155 F-40

* * *



Co., N. W. 113, 54 Iowa, 673; Musser v. McRae, 38 Minn. 409, 38

ı N. W. 103; Dickerson v. Yetzer, 6 N. W. 41, 53 Iowa, 681; Resser v. Carney, 52 Minn. 397, 54 N. W. 89; Page v. Price County, 64 Pac. 801, 25 Wash. 6; Lafeyette Lewis, 33 Land Dec. 43; William E. Moses, 33 Land Dec. 333. In this last-named case the opinion of Secretary Hitchcock is a very clear and instructive one, and in line with the decision in Cosinos Co. v. Gray Eagle Co., supra. Moses, , like the railway company in this case, tendered to the local land office at Lewiston, Idaho, his application to select lands in lieu of forest reserve lands, a deed for the conveyance of which to the United States he furnished, together with his application. His application for the lieu lands having been rejected because of a defect in his title to the base lands, he requested the return of his deed and abstract. The Commissioner of the General Land Office denied his application. The Secretary, after stating that the possession of the deed by the grantor is presumptive evidence that the deed was never delivered, and the possession thereof by the grantee is presumptive evidence that it had been delivered and accepted, says:

“The owner of the land is entitled to the possession of his muniments of title.

“Equitable title to land relinquished to the United States under the exchange provisions of the act of June 4, 1897, does not vest until examination and acceptance of the title by an authorized officer of the United States. [Here the Honorable Secretary quotes with approval from Cosmos Co. v. Gray Eagle Co., supra, and continues.] It is a transaction of exchange, and it is a necessary condition of title by exchange that there is 'a concurrent vestiture of title' to the things exchanged.

"The deed having been delivered to officers of the United States for their inspection and acceptance and being found not acceptable, the United States has no claim to the land nor right to possession of the deed. The transaction, of which the conditional delivery was a part, having wholly failed, the deed never became operative, and the grantor is entitled to its return, that the grantee may be divested of the presumptive evidence of ownership."

In view of the doctrine thus enunciated both by the Land Department and by our Supreme Court as to the status of these lands and the title thereto during the period intervening between the date of the filing of the selection lists and the date of approval either by the Commissioner or by the Secretary of the Interior, I am unable to fully appreciate the suggestion made by counsel for the defendants that the revenue statutes of Idaho should enable the court in some way to distinguish this case and relieve defendants from the application of these general principles. It is suggested that the statutes of Idaho define improvements on public lands and possessory claims as real estate, and authorize the assessment and taxation of the same; but how does such a statute apply to the facts in this case? The revenue officers of the defendant county did not profess to assess improvements or possessory rights upon, or claims to, public lands, nor does the record show that the plaintiff had any improvements upon, or any possessory rights or claims to any of the lands in question. The lands were vacant, unoccupied, unimproved, unsurveyed public lands of the United States, which the railway company was offering to purchase as soon as the same could be surveyed and placed upon the market, by an exchange therefor of other lands which it claimed to Its right, if it could be accurately called a right at all, was not so great or so tangible as that of a qualified entryman who has filed his application to enter 160 acres of land under the homestead laws and, who has placed no improvements upon the land applied for, and who has never been in the actual possession of the same. What does such an applicant acquire, by his mere application, that is subject to taxation? If he takes actual possession of the land and places improvements upon the same, he has property interests which come within the statutory definition of improvements and claims to, or possessory rights upon, public lands. But in this case the selector, not only had no improvements upon and was not in the actual possession of the lands, but it had no right to the possession. If, as stated by Mr. Justice Field in Railroad Company v. Price County, supra, the exception to the general doctrine that land to which the government holds the legal title is not subject to taxation “is founded upon the principle that he who has the right to property, and is not excluded from its enjoyment, shall not be permitted to use the legal title of the government to avoid his just share of state taxation," upon what theory can the exception be extended to embrace this case? It is not contended, and in my view could not successfully be asserted, that, when the railway company filed its selection lists and deeds and abstracts, it had the right to take possession of the selected lands, and exercise dominion over them and cut therefrom the timber. But, if it did not have the title and did not have the right of possession or the right of use, upon what theory of law or equity could it be required to pay taxes? It is interesting and pertinent in this connection to refer to the United States v. Montana Lumber Co., 196 U. S. 573, 25 Sup. Ct. 367, 49 L. Ed. 604, where the Northern Pacific Railway Company, having, by the construction of its road, fully earned certain lands under the act granting to it lands along the line of its road, before said lands were surveyed, sold the timber standing thereon to the Montana Lumber Company, and the latter company, having determined to its satisfaction, by the employment of private surveyors, where said lands were located, proceeded to cut and manufacture the timber growing thereon, and the court held that, notwithstanding the lands had been earned, neither the railway company nor its grantee had any right to go upon said lands and cut therefrom the timber until they had been definitely located and identified by government surveys. Counsel for the defendants cite no decision or departmental regulation or rule by which, or in harmony with which, the railway company or the plaintiff would have been justified in taking possession of or using these lands or any part thereof prior to the approval of the selection by the proper officers. .

It is suggested that the complainant has come into a court of equity asking equitable relief, and that, therefore, it should be required to do equity. The principle is, of course, correct, but just what application is sought to be made of it is not quite clear. In this connection the question is asked by counsel why should the settler who entered 160 acres of timber land in Shoshone county in the year 1901, and paid the purchase price therefor, have been subject to taxation by the state at all times since, and the Timber Company here, or the railroad company, which selected these lands, be exempt from taxation? The distinction is obvious. As soon as the person referred to as a "settler" had entered 160 acres of land and paid the purchase price therefor, he became the owner of the equitable title, and, as soon as patent issued, of the legal title. But, whether patent issued or not, as soon as he paid the purchase price and received his final certificate or certificate of patent, he was recognized as the owner of the land, including the timber growing thereon. He had the right to take possession of the land and to use it, and to appropriate to his own use and benefit its products. In other words, his dominion over the land and its products became absolute. But, suppose that, between the time the "settler” made his application and the time certificate of patent or final certificate was issued to him, the land had been assessed, would it be contended that such assessment was either legal or equitable? During such time the "settler” had neither title to nor the right to use or exercise dominion over the land; and his case would be analogous to that of the plaintiff.

It is further suggested by counsel for the defendant that the Northern Pacific Railway Company, in releasing the base lands, released lands which were subject to taxation, and presumptively, it is stated, the lands so released were of less value than those selected in lieu thereof; but, even if we adopt such an assumption, how can it avail the defendant? It clearly appears from the letter of the Assistant Commissioner of the General Land Office, dated February 8, 1905, hereinbefore referred to, that the department was requiring the railway company to keep the taxes levied upon the base lands, paid up to the time the selections were approved in 1905, and it logically follows from the Moses decision and the Lewis decision (33 L. D., cited supra) that the base lands where title has passed to the selector, so that they are subject to taxation, continue to be the property of the selector, and hence subject to taxation in the state where they are situated, until the conveyance thereof is accepted and the proper exchange is consummated by the approval of the proper officers of the Land Department, and that, therefore, it is incumbent upon the selector, the Railway Company in this case, not only in order that the Government may accept its offer, but for its own protection if, for any reason, its offer is rejected by the government, to pay the taxes upon the base lands levied during the pendency of its application or selection. If, therefore, the lands in question in this case were, prior to the approval of the selections, subject to taxation as being the property of the railway company and the plaintiff, its grantee, then it logically follows that during the pendency of its application the selector must pay taxes both upon its own property and that of the United States, for at no given time could it be held that it was the owner both of the base and of the lieu lands. In their brief the defendants have cited Central Pacific Railway Co. v. Nevada, 162 U. S. 512, 16 Sup. Ct. 885, 40 L. Ed. 1057, and Northern Pacific Railway Company v. Meyers, 172 U. S. 588, 19 Sup. Ct. 276, 43 L. Ed. 564, as being in support of their contention, but both of these cases involve the construction and ap

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