David Josiah Brewer

“ Of course, if fraud was done by one employed by appellant, he, thought ignorant, must bear the consequences of that fraud. We do not doubt what the verdict of a jury would be, as to a charge of fraud, under these circumstances; but we do not care to place our decision upon this ground. We rest it upon the incontrovertible fact that through inadvertence and mistake this land was certified to the state. ”

“ It is obvious, it is common knowledge, that, in the administration of such large and varied interests as are intrusted to the land department, matters not foreseen, equities not anticipated, and which are therefore not provided for by express statute, may sometimes arise, and therefore that the secretary of the interior is given that superintending and supervising power which will enable him, in the face of these unexpected contingencies, to do justice. ”

“ That, certainly, is the dignified and proper course to be pursued by a state which is charged to have been the innocent instrumentality and agent by which a title to real estate has been wrongfully obtained from the general government. ”

“ In the main, we do not doubt these propositions of law; but there are certain equitable considerations which the department is authorized to recognize, and, when recognized, no court will ever disturb its action. Consider the facts in this light: Williams had made a desert-land entry. His proposition by that entry was to reclaim this land by irrigation. He conveyed by deed a portion of it to the Philadelphia Company, warranting that he had perfect title and right to convey, and receiving $5,000 for this conveyance. On the faith of it, the company expends $58,000 in improvements. ”

“ The certification after selection by the state is to be approved by the secretary of the interior. This is no mere formal act. It gives to him no mere arbitrary discretion, but it does give power to prevent such a monstrous injustice as was sought to be accomplished by these proceedings. ”

“ The controversy proceeded in regular order until December, 1883, without any suspicion on the part of the commissioner of the land-office that any certification of title had been made to any of these lands, or that the controversy was not still open for adjudication. In December, 1883, on discovery of this mistake by the land commissioner, he telegraphed to the governor of Nevada to return the approved list, which application was declined, by telegram, on the advice of the attorney general of the state. ”

“ The facts and proceedings attending this transfer of title are fully disclosed in the bill. They point to fraud and wrong, and equally to inadvertence and mistake; and, if the latter be shown, the bill is sustainable, although the former charge against the defendant may not have been fully established. For satisfactory answer to this inquiry, a fuller statement of facts is necessary. On May 19, 1879, defendant made in the proper land-office of the United States a desert-land entry for 240 acres, including therein the lands in controversy. ”