ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
MR. JUSTICE BREWER, after making the above statement, delivered the opinion of the court.
The first question arises on the plaintiff's claim of a legal title by virtue of a location of Sioux half-breed scrip. It appears that under the act of Congress a certificate, No. 430, Letter C, for 80 acres, was issued to Walter Bourke. This certificate, which was marked "not transferable or assignable," was dated November 24, 1856. On June 5, 1886, it was presented by W.R. Wallace at the local land office at Coeur d'Alene, accompanied by an irrevocable power of attorney to him executed by Walter Bourke and his wife, on February 27, 1883, and was located upon 80 acres, within which was the property in dispute. When the location papers were transmitted to the General Land Office at Washington it was discovered that Bourke had on Cotober 26, 1870, applied to the department for a duplicate certificate, on a representation that the original had been lost or destroyed; that such application had been sustained and a duplicate certificate issued; that on March 9, 1880, he had located such duplicate on land in Dakota, and received a patent therefor. Upon the disclosure
of these facts the Commissioner of the General Land Office cancelled this location in Idaho.
Now, the contention of plaintiff is that the location of this scrip operated to transfer the legal title to Bourke, by deed from whom the plaintiff claimed; that no patent was necessary, and that whatever of wrong Bourke may have committed, the legal title was in him and could only be divested by a suit in equity brought by the United States. This scrip is of the same character as that which was before this court in Felix v. Patrick, 145 U.S. 317. While it is true that the act of 1854 does not in terms provide for the issue of a patent, and simply authorizes the location of the scrip upon any public lands, yet the general rule is that a patent is necessary for the transfer of the legal title to public lands. In Bagnell v. Broderick, 13 Pet. 436, 450, it was said: "Congress has the sole power to declare the dignity and effect of titles emanating from the United States; and the whole legislation of the Federal government, in reference to the public lands, declares the patent the superior and conclusive evidence of legal title; until its issuance the fee is in the Government; by the patent, it passes to the grantee, and he is entitled to recover the possession in ejectment." See also Wilcox v. Jackson, 13 Pet. 498, 516; Langdon v. Sherwood, 124 U.S. 74, 83, in which it was said: "It has been repeatedly decided by this court, that such certificates of the officers of the land department do not convey the legal title of the land to the holder of the certificate, but that they only evidence an equitable title, which may afterwards be perfected by the issue of a patent, and that in the courts of the United States such certificates are not sufficient to authorize a recovery in an action of ejectment." Hussman v. Durham, 165 U.S. 144.
It is true there are exceptions to this rule. One is specially provided by statute, Rev. Stat. § 2449, which makes a certification to a State equivalent to a patent as a conveyance of title. Again, as said in Wilcox v. Jackson (supra), "One class of cases to be excepted is, where an act of Congress grants land, as is sometimes done in words of present grant." This
exception was recognized in Wisconsin Central Railroad v. Price County, 133 U.S. 496; St. Paul & Pacific Railroad v. Northern Pacific Railroad, 139 U.S. 1; Deseret Salt Company v. Tarpey, 142 U.S. 241.
It is well settled that an action of ejectment cannot be maintained in the courts of the United States on a merely equitable title. See in addition to Langdon v. Sherwood (supra); Johnson v. Christian, 128 U.S. 374, 382, and cases cited.
With reference to the power of the Commissioner of the General Land Office to cancel an erroneous certificate of location issued by local land officers see Cornelius v. Kessel, 128 U.S. 456; Knight v. U.S. Land Association, 142 U.S. 161, 177; Orchard v. Alexander, 157 U.S. 372. It is, however, unnecessary to enter into any inquiry as to the power of the land department to issue duplicate in lieu of original scrip alleged to have been lost or destroyed, or even as to the regularity of the proceedings by which this certificate of location was cancelled. It is enough that there is nothing to exempt this case from the ordinary rule that a patent is necessary to convey the legal title; that the certificate of location created at best but an equitable title, and that such a title is not sufficient to sustain an action of ejectment in the Federal courts.
We pass, therefore, to the other question which arises on the contention of the plaintiff that he was in peaceable possession, holding under a claim of title, when the defendants forcibly dispossessed him, and that such prior possession under claim of title is sufficient to sustain this action against mere intruders. To an understanding of this question some further facts must be stated. In May, 1886, and before the certificate of location, one Trask, a surveyor, surveyed this tract of 80 acres and laid it off into lots and blocks. This was done at the instance of Wallace, who held the scrip and power of attorney from Bourke, and who was proposing to establish ...