Kirwan v. Murphy (189 U.S. 35)/Opinion of the Court
The bill prayed for injunction and the establishment of the boundaries of complainants' lands. The decree granted a perpetual injunction, and, describing the fractional lots, adjudged that they 'extend to and are bounded by and and upon the actual waters of Cedar Island lake.' The deflection of the lines required by the decree is indicated on the diagram.

Sections 2395, 2396, and 2397 of the Revised Statutes (U.S.C.omp. Stat. 1901, pp. 1471, 1473), specify the manner of making surveys of public lands, and prescribe the rules by which the form and boundaries of the tracts are determined. In this case no survey was in fact made, no meander line was in fact run, and no body of water in fact existed near the false meander line indicated. The line purporting to delimit the lake was from one mile to a quarter of a mile from the lake, and ran over high agricultural land, covered with ancient trees, which could not have grown in water. The theory of the decree is that the government is estopped by the pretended survey and plat to deny that these lots were bounded by the lake.

The Land Department must necessarily consider and determine what are public lands, what lands have been surveyed, what are to be surveyed, what have been disposed of, what remain to be disposed of, and what are reserved. The Department has held that the land lying between the alleged meander line and the lake, some 1,200 acres, is government land, and has ordered it to be surveyed. Re Burns, 20 Land Dec. 28, 295, 23 Land Dec. 430. The execution of that order was restrained by the preliminary injunction herein, and that has been made perpetual by the decree.

We are confronted on the threshold with two objections to the maintenance of this bill; namely, the want of jurisdiction in equity, and the want of jurisdiction thus to interfere with executive administration.

Equity jurisdiction was invoked on the ground of lack of adequate remedy at law, in that irreparable injury in the destruction of timber and exposure to fire by the survey, and multiplicity of suits, were threatened.

In our opinion complainants failed to make out a case of liability to irreparable injury. The township was resurveyed by a county surveyor in 1893; defendant Croswell has made surveys in the township, locating the actual meanders of the lake; and he testified that this survey could be made by him 'without any material injury to the soil or timber;' and that he would not 'have to cut very much valuable timber.' If complainants, as owners of the 859.38 acres contained in their fractional lots, became, through that ownership, owners of the 1,202 acres lying between those lots and the lake, the proposed survey would be but a fugitive and temporary trespass, lacking the elements of irreparable mischief, and of such long continuance as to become a nuisance.

And bills of peace will not lie where the legal remedy is otherwise adequate, and where the persons directly interested are not made parties, are not numerous, and assert separate and independent rights. Hale v. Allison, 188 U.S. 56, ante, p. 244, 23 Sup. Ct. Rep. 244; Cruickshank v. Bidwell, 176 U.S. 73, 44 L. ed. 377, 20 Sup. Ct. Rep. 280.

But, in the next place, was the circuit court justified in thus arresting the action of the Land Department in proceeding with a survey under the circumstances? In other words, Can the Land Department be stayed in the discharge of a duty, not ministerial, but involving the exercise of judgment and discretion, on the ground that its jurisdiction has been lost by estoppel? We do not think so, and hold that complainants' contention that they are entitled to bound upon the lake involves a legal right, which cannot be properly passed on until after the Department has acted.

Having participated in the proceedings before the Department, complainants, after survey was ordered, obtained this injunction against further administrative action, on the ground of absolute want of power, and not of error in its exercise.

The administration of the public lands is vested in the Land Department, and its power in that regard cannot be devested by the fraudulent action of a subordinate officer, outside of his authority, and in violation of the statute. Whiteside v. United States, 93 U.S. 247, 23 L. ed. 882; Moffat v. United States, 112 U.S. 24, 28 L. ed. 623, 5 Sup. Ct. Rep. 10; Hume v. United States, 132 U.S. 406, 414, 33 L. ed. 393, 396, 10 Sup. Ct. Rep. 134. The courts can neither correct nor make surveys. The power to do so is reposed in the political department of the government, and the Land Department, charged with the duty of surveying the public domain, must primarily determine what are public lands subject to survey and disposal under the public land laws. Possessed of the power, in general, its exercise of jurisdiction cannot be questioned by the courts before it has taken final action. Brown v. Hitchcock, 173 U.S. 473, 43 L. ed. 772, 19 Sup. Ct. Rep. 485.

In Litchfield v. The Register & Receiver, 9 Wall. 575, sub nom. Litchfield v. Richards, 19 L. ed. 681, Litchfield sought an injunction to restrain the register and receiver of the United States land office at Fort Dodge, Iowa, from entertaining and acting upon applications made to them to prove pre-emptions to certain lands which lay within the land district for which they were respectively register and receiver. The bill averred that complainant was the legal owner of the lands; that they were not public lands, and were in no manner subject to sale or pre-emption by the government or its officers. The bill was dismissed for want of jurisdiction in equity, and this court affirmed the decree. Mr. Justice Miller said: 'The principle has been so repeatedly decided in this court, that the judiciary cannot interfere, either by mandamus or injunction, with executive officers such as the respondents here, in the discharge of their official duties, unless those duties are of a character purely ministerial, and involving no exercise of judgment or discretion, that it would seem to be useless to repeat it here.' Gaines v. Thompson, 7 Wall. 347, 19 L. ed. 62; The Secretary v. McGarrahan, 9 Wall. 298, sub nom. Cox v. United States ex rel. McGarrahan, 19 L. ed. 579.

It was held that the fact that complainant asserted himself to be the owner of the tract of land which the officers were treating as public lands did not take the case out of that rule, where it was the duty of these officers to determine, upon all the facts before them, whether the land was open to pre-emption or sale; and, further, that if the court could entertain jurisdiction, the persons asserting the right of pre-emption would be necessary parties to the suit.

Mr. Justice Miller further said: 'After the land officers shall have disposed of the question, if any legal right of plaintiff has been invaded, he may seek redress in the courts. He insists that he now has the legal title. If the Land Department finally decides in his favor, he is not injured. If they give patents to the applicants for preemption, the courts can then, in an appropriate proceeding, determine who has the better title or right.'

And: 'It appears on its face, that the register and receiver have no real interest in the matter, but that persons not named are asserting before them the legal right to pre-empt these lands. These persons are the real parties whose interests are to be affected, and whose claim of right is adverse to plaintiff. If the court should hear the case, and enjoin perpetually the register and receiver from entertaining their applications, they have no further remedy. That is the initial point of establishing their right, and in this mode a valuable and recognized right may be wholly defeated and destroyed, without the possibility of a hearing on the part of the party interested. This is not a case in which the land officers represent these claimants. They have no such duty to perform.'

The case has been frequently cited, and in, among others, Carrick v. Lamar, 116 U.S. 423, sub nom. United States ex rel. Carrick v. Lamar, 29 L. ed. 677, 6 Sup. Ct. Rep. 424,-an application to the supreme court of the District of Columbia for a mandamus to the Secretary of the Interior to order the survey of an island in the Mississippi river, opposite the city of St. Louis, by an alleged settler thereon, who averred that he had applied to the Department for a survey of the island, so that it might be brought into the market, and that, on the hearing of the application, the city contended that the island had been surveyed and set apart to it, under certain acts of Congress, which he denied, because, as he insisted, the island surveyed was then located above this island. The court refused to grant the writ, and its judgment was affirmed, this court holding that the question how far the title of the city to the island was affected by its being carried down river by the action of the current required consideration and judgment on the part of the Secretary.

Noble v. Union River Logging R. Co. 147 U.S. 165, 37 L. ed. 123, 13 Sup. Ct. Rep. 271, is not to the contrary, for that was a case where the executive department had confessedly finally acted, and then attempted to resume jurisdiction, and an injunction was sustained. But the government raised no point as to the form of the remedy; deprivation of a vested legal right of property, acquired before any suggestion that it could be taken away, was threatened; and it appeared that the only remedy was through equity interposition. Cruickshank v. Bidwell, 176 U.S. 73, 80, 44 L. ed. 377, 380, 20 Sup. Ct. Rep. 280. In this case, whether the lands lying between the alleged meander line and the lake were public lands or not was for the Land Department to determine in the first instance; and, if error was committed, this is not the way to correct it.

In our judgment the circuit court should not have taken jurisdiction, and therefore the--

Decree of the Circuit Court of Appeals is reversed; the decree of the Circuit Court is also reversed, and the cause remanded to that court, with a direction to dismiss the bill. 

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