Weeks v. Bridgman/Opinion of the Court
The line of the road was definitely fixed December 30, 1857. The lands within the place limits then subject to the grant were thereby segregated from the public domain, and the grant took effect thereon. But under the granting act, lands to which pre-emption rights had attached, when the line was definitely fixed, were as much excepted therefrom as if in a deed they had been excluded by the terms of the conveyance. And this was true in respect of applications for pre-emption rejected by the local land office, and pending on appeal in the land department at the time of definite location, since the initiation of the inchoate right to the land would prevent the passage of title by the grant, and the determination of its final destination would rest with the government and the claimant. Railway Co. v. Dunmeyer, 113 U.S. 629, 5 Sup. Ct. 566; Railroad Co. v. Whitney, 132 U.S. 357, 10 Sup. Ct. 112; Bardon v. Railroad Co., 145 U.S. 535, 12 Sup. Ct. 856; Ard v. Brandon, 156 U.S. 537, 15 Sup. Ct. 406; Whitney v. Taylor, 158 U.S. 85, 15 Sup. Ct. 796. Brott selected certain lands, including this in dispute, for and built and established his mail stations thereon in 1855, and maintained the same during the term of his mail contract; and filed his application to enter these lands, as a mail contractor, under the act of March 3, 1855, in the local land office August 11, 1857. The application was rejected by the local land officers, and Brott appealed to the commissioner of the general land office, and from his decision to the secretary of the interior, who reversed the rulings of the land officers and of the commissioner, and held Brott entitled to pre-empt the stations occupied. He was, indeed, required to produce proof of the performance of his mail contract, and of the occupation of the lands as stations, and he actually entered them in pursuance of the act of congress for his relief; but in Ard v. Brandon, supra, it was held that when a pre-emptor has the right to make entry, and applies to the local land officers, and they refuse to recognize his right, it will be deemed to date from the time of his application, and this notwithstanding he proceeds to obtain title in some other way. The conclusion follows that Brott's pre-emption claim must be regarded as having attached prior to the definite location, December 30, 1857, and that the title did not pass under the congressional grant to the state.

But it is contended that, as on October 25, 1864, the secretary of the interior included section 13 in the lists of lands certified to the state of Minnesota under the act of August 3, 1854 (10 Stat. 346), as a part of the lands granted by the act of March 3, 1857, that certification was an adjudication that the land in question had not been previously disposed of, and that no pre-emption right had attached thereto, and passed the legal title, whatever Brott's equitable rights might be; and that, while the certification might be voidable, it was not absolutely void. The act of August 3, 1854, provided that, where lands had been or should be thereafter granted to the several states or territories, and the law did not convey the fee-simple title of such lands, or require patents to be issued therefor, the lists of such lands which had been or might thereafter be certified 'shall be regarded as conveying the fee simple of all the lands embraced in such lists that are of the character contemplated by such act of congress, and intended to be granted thereby; but where lands embraced in such lists are not of the character embraced by such acts of congress, and are not intended to be granted thereby, said lists, so far as these lands are concerned, shall be perfectly null and void, and no right, title, claim, or interest shall be conveyed thereby.'

As we have seen, this particular land was not included in the grant, and the secretary of the interior had so decided on August 30, 1861, when he determined that the pre-emption right had attached. And since it was not so included, nor subject to disposition as part of the public domain, on October 25, 1864, the action of the land department in including it within the lists certified on that day was ineffectual. Noble v. Railroad Co., 147 U.S. 165, 174, 13 Sup. Ct. 271.

The distinctions between void and voidable acts need not be discussed. It is rarely that things are wholly void and without force and effect as to all persons and for all purposes, and incapable of being made otherwise. Things are voidable which are valid and effectual until they are avoided by some act; while things are often said to be void which are without validity until confirmed. 8 Bac. Abr. 'Void and Voidable'; Ewell v. Daggs, 108 U.S. 143, 2 Sup. Ct. 408; Ex parte Lange, 18 Wall. 163; State v. Richmond, 6 Fost. (N. H.) 232; Anderson v. Roberts, 18 Johns. 515; Pearsoll v. Chapin, 44 Pa. St. 9.

As against Brott, the certification had no operative effect.

It is also objected that Brott was not a qualified claimant under the act of 1855, because that act only applied to a contractor engaged in carrying the mail through any of the territories west of the Mississippi, and because it does not appear that his declaratory statement was ever accepted or recognized, or that he made proof of his occupation of the land as a mail station; but these and other like objections involve questions between Brott and the government, already determined in his favor, and which the railroad company and its grantees are not in a position to raise upon this record.

Judgment affirmed. 

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