David Josiah Brewer

“ Ct. 37.
'But it is also equally true that when, by act of congress, a tract of land has been reserved from homestead and pre-emption, or dedicated to any special purpose, proceedings in the land department in defiance of such reservation or dedication, although culminating in a patent, transfer no title, and may be challenged in an action at law. In other words, the action of the land department cannot override the expressed will of congress, or convey away public lands in disregard or defiance thereof. ”

“ Whether, for instance, a certain tract is swamp land or not, saline land or not, mineral land or not, presents a question of fact not resting on record, dependent on oral testimony; and it cannot be doubted that the decision of the land department, one way or the other, in reference to these questions, is conclusive, and not open to relitigation in the courts, except in those cases of fraud, etc., which permit any determination to be re-examined. ”

“ It being so a part of the public domain, subject to administration by the land department, and to disposal in the ordinary way, the question arises whether a party can defend against a patent duly issued therefor, upon an entry made in the local land office, on the ground that he was in actual possession of the land at the time of the issue of the patent. We are of opinion that he cannot. ”