APPEAL FROM THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
MR. JUSTICE McKENNA delivered the opinion of the court.
Bill in equity by appellants, who were complainants in the Circuit Court, and we shall so refer to them, and to the appellee as defendant, to adjudge defendant trustee for complainants of the S.W. 1/4 of the S.E. 1/4 of section 13, Township 55 North, Range 26 West of the Principal Meridian, and to compel a conveyance to them. The Santa Fe Railroad Company was impleaded with defendant, but it filed a disclaimer and the suit proceeded against him alone.
The rights of complainants are based upon an application for the lands as unappropriated public lands of the United States by Robinson, one of the complainants, as assignee of one James Carroll. The application was duly entered of record upon the tract and plat book in the local land office and proof of the claim of Carroll for an additional homestead entry was transmitted to the General Land Office for examination and action. Upon investigation the Land Department decided that Carroll was not entitled to make such entry and held Robinson's application for rejection and ordered a hearing to be had on June 29, 1905. Robinson did not appear and a decision was rendered holding that Carroll was not entitled to an additional homestead entry under § 2306 of the Revised Statutes. Robinson was notified of this action and that he had a right to appeal therefrom.
On the twenty-seventh of July, 1905, Robinson filed with the local land office for transmission to the General Land Office an application for leave to substitute in support of his application for entry of the land another soldier's additional homestead right in lieu of that of Carroll. In his application he said he appealed from the order canceling Carroll's entry, and excused himself for not appearing at the hearing on June 29, 1905, on account
of the sudden and serious illness of his mother, which prevented his attendance at the hearing and also prevented him from providing a representative thereat. He disclaimed a desire to incommode the Department and expressed a willingness to aid it in the adjustment of all matters in which he should be interested. He further said that he was deeply sensible and appreciated the seriousness of defaulting at the hearing and that he did not want the case reopened. He requested a delay of thirty days and asked that the decision of the Register and Receiver of the Land Office be amended so as to grant him a reasonable time within which to perfect his entry.
An order was made allowing him thirty days after notice to file a proper substitute for the right of Carroll. On October 4, 1905, he, Robinson, filed the additional homestead right of one Justin F. Heath.
On February 15, 1906, the Commissioner of the General Land Office accepted the substitute and directed the local land office that upon the payment by Robinson of the legal fees and commissions within sixty days they should allow the entry made by him. He paid the fees as required, and thereupon final certificate No. 715, Cass Lake, Minnesota, Series, was issued to him.
On July 11, 1905, that is, prior to the filing by Robinson of the Homestead right of Heath, the Santa Fe Railroad, through the defendant Lundrigan, its attorney in fact for that purpose, filed in the local land office under the act of Congress of June 4, 1897, its application to select the land. He application was received subject to final action on Robinson's application. Upon the allowance of Robinson's application and the issue to him of a final certificate the local land office rejected the application of the railroad company, from which action the latter appealed to the Commissioner of the General Land Office. The Commissioner held that the application of the railroad company constituted a valid intervening adverse right such as to
bar the substitution by Ronsinson of the additional homestead right of Heath. On February 25, 1907, the Secretary of the Interior affirmed the decision of the Commissioner. Upon motion for review the decision was affirmed May 13, 1907, and, on petition for re-review, reaffirmed July 18, 1907.
In pursuance of this decision Robinson's entry was cancelled, and a patent for the land was issued to the railroad company. The railroad company ...