Wilkinson v. Merrill

McKee, J.: In a contention, under an Act of Congress passed July 23rd, 1866, between the defendant and the plaintiff in this case, before the register and receiver of the United States land office, involving the rights of the parties to a tract of land, which is now, as it was then, the subject of controversy between them, the commissioner of the land office, by his judgment, canceled the pre-emption claim of the plaintiff to the land, adjudged that the locations, which had been made by the defendant upon the land under the laws of the State, were regular and valid, and that the State was entitled to have the land listed to it for the use of the defendant. That judgment was afterwards affirmed by the Secretary of the Interior, and under it, the land was thereafter listed to the State. Notwithstanding the judgment, the plaintiff claims the right to purchase the land from the State against the locations which were made upon it by the defendant, and which were declared by the judgment to be regular and valid. But the judgment is decisive of the rights of the parties to [560] the land. Such was the decision of the late Supreme Court, when the case was before it on a former appeal. “ The decision of the land department,” says the Court, “ was conclusive against the plaintiff who subsequently sought to acquire title from the State. ” (Wilkinson v. Merrill, 52 Cal. 424.) That decision must be regarded as the law of the case, unless the case itself has undergone a change in its facts or the pleadings. The facts of the case are substantially the same. The pleadings have been changed; for, when the remittitur went down to the Court below, the plaintiff amended his complaint, by alleging matters of fraud and fraudulent imposition by the defendant, on the officers of the United States, which, it was charged, controlled their decision in the controversy between the defendant and the plaintiff,- by which the land was awarded to the State for the use of the defendant. The charges were denied by the defendant, and the issue raised by them constituted the only new feature in the case. Upon the trial, the Court below found: “ That the selection approved by the commissioner of the general land office, and affirmed by the Secretary of the Interior, was not procured by fraudulent representations and contrivances of the defendant, or by mistake in law by the commissioner or Secretary of the Interior, or from want of information of the facts concerning the location of Edward Merrill.” It is assigned as- error, that the1-finding is not supported by the evidence; and a like assignment is made to almost each particular finding in the case. But the assignments are unsustainable; for the evidence in the record before us sufficiently sustains the finding, as well as the other findings of fact in the case; none of them is contrary to the evidence, and each is sufficiently sustained by it. Again: it is objected that the conclusion of law drawn by the Court from its findings, to the effect that the defendant is entitled to purchase the land from the State, is erroneous, because his application to purchase was not made within ninety days after the filing of the township map in the office of the register and receiver, as provided in § 3 of the Act of July 23rd, 1866. The map was filed in the office on the 27th of April, 1868, but it was afterwards withdrawn, and was refiled on the [561] 21st day of November, 1871. Defendant made his application to purchase the land in January, 1872, and supplemented it by other applications after that date. The application was made within ninety days after the refiling. When the filing of a map is withdrawn by the proper authority, it is as though the map had never been filed, and the day of its return to the files is, in contemplation of law, the date of its filing. Judgment and order affirmed. McKinstry, J., Sharpstein, J., and. Thornton, J.s concurred.