
    [No. 15264.
    Department Two.
    August 7, 1919.]
    Robert Bruce Brown, Appellant, v. Eugene G. Baker et al., Respondents.
    
    Public Lands (14)—Rights Acquired by Entry—Vested Rights— Price. The only vested right that a successful contestant of a homestead entry has is the preference right for thirty days to enter upon the lands; and the general land office may, between the date of contract and date of entry, change the rules relating to the manner of acquisition of government lands, and can require that timber lands previously sold at $2.50 per acre shall he appraised and sold at the appraised value.
    •Same (19)—Timber and Stone Lands—“Minimum” Price—Right to Change. 20 Stat. at L. 89, providing that the minimum price at which lands chiefly valuable for timber may be sold does not prevent the general land office from fixing' a greater price and requiring an appraisement and sale at the appraised value.
    Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered October 23, 1918, upon sustaining a demurrer to the complaint.
    Affirmed.
    
      R. B. Brown (Peters & Powell, of counsel), for appellant.
    
      Thomas A. Stiger and John R. Dally, for respondents.
    
      
      Reported in 183 Pac. 89.
    
   Mount, J.

This action was brought to obtain a decree adjudging the title to certain real estate, patented by the United States to defendants, to be held by them in trust for the benefit of plaintiff. The trial court sustained a general demurrer to the complaint and dismissed the action. Plaintiff elected to stand upon the allegations of the complaint, and the action was dismissed. Plaintiff has appealed.

The complaint alleges the following facts: That, on the 8th day of November, 1905, the real estate in controversy was public surveyed lands subject to entry at the Seattle land office; that, on November 17, 1905, one Otto J. Larson entered upon said lands under the United States homestead laws at said time, filed an affidavit of prior settlement which, under the rules of the department, gave him a preference right dating back to July 14, 1905; that, on October 24, 1906, Larson made final proof and commuted his homestead entry to a cash entry; that, on July 31, 1907, the appellant contested the homestead entry of Larson, and upon a hearing of this contest, the register and receiver rendered their decision in said contest case in favor of the appellant; that Larson appealed from that decision to the general land office, thence to the Secretary of the Interior, resulting in each instance in an affirmance of the decision of the local land office; that Larson’s entry was finally canceled and appellant was given thirty days from the date of notice thereof in which to exercise his preference right to file his entry upon the land; that, on February 25, 1910, within thirty days from the date of the cancellation of the Larson homestead entry, appellant made application to enter said lands under the stone and timber act of June 3, 1878, it having been shown, and the department having found, that the lands in question were chiefly valuable for timber; that this application was made upon the blanks and in the manner prescribed by the general land office which had been in use since the act of 1878 had become effective, up to November 30, 1908, at which last-named date a new form, of application prescribed by the Secretary of the Interior and new regulations had gone into effect, which regulations, among other things, required the applicant to file an affidavit of the value of the lands sought to be entered, and also the value of the timber thereon, and further provided for the appraisement of said lands and the timber thereon by an appraiser sent out for that purpose; and also provided that, after that date, no sale should be made under said act except as provided in such regulations; that the register and receiver of the local land office being divided in opinion as to the right of the appellant to file his application in the manner prescribed prior to November 30, 1908, the application was sent to the general land office and thence to the Secretary of the Interior, and resulted in a decision that the appellant was controlled by the new regulations and must pay the appraised value placed upon said lands and timber; that thereafter the lands were appraised at the sum of four thousand two hundred and twenty-five dollars ($4,225), and subsequently reappraised at four thousand twenty-two dollars and fifty cents ($4,022.50), which appellant refused to pay, but offered to pay two dollars and fifty cents ($2.50) per acre, as all persons had paid before, appellant claiming this was the only price at which timber land could be sold under said act; that, while appellant was contesting these various questions before the department, the respondents Eugene G-. Baker and wife moved upon the land in question with full knowledge of all the facts and of appellant’s rights therein; and that, on November 17, 1917, patent was made and issued to said Eugene Gr. Baker under the United States homestead act, and he is still holding the lands under said patent.

The prayer of the complaint is that respondents may be adjudged to hold the patent to these lands as trustees for appellant, and that respondents be required to convey said lands to appellant upon the payment of the sum of four hundred dollars ($400).

Appellant concedes upon this appeal that he may not litigate matters of fact which have been passed upon by the general land office, but argues that errors of law committed by the land office may now be litigated in this action. We may concede these positions for the purpose of this case. Appellant then argues that he initiated his right on July 31, 1907, when he instituted the contest in the United States land office at Seattle against the entry of O. J. Larson; that his contest successfully ripened into a vested right beginning at that date; and that the land department could not thereafter make any change in the rules relating either to the price to be paid or to the construction wliich had previously been placed upon the timber and stone act.

Section 2, ch. 89, 21 Stat. at L. 140 (“An act for the relief of settlers on public lands”); 8 Fed. Stat. Ann. (2d ed.), page 598, provides:

“In all eases where any person has contested, paid the land-office fees, and procured the cancellation of any preemption, homestead, or timber-culture entry, he shall be notified by the register of the land office of the district in which such land is situated of such cancellation, and shall be allowed thirty days from date of such notice to enter said lands: . . . ”

We think it is apparent that the only vested right which the appellant had upon the cancellation of the entry of Larson upon the lands was the preference right for thirty days to enter upon the lands. He acquired no vested interest in the land itself. We are also satisfied that the general land office might, between the date of the contest and the date of the entry filed by the appellant, legally change the rules relating to the manner of acquisition of government lands. It appears from the complaint that, prior to the contest above referred to, the land department had been selling these lands at the minimum price of two dollars and fifty cents ($2.50) per acre, and that, between the time of the contest and the time of the entry by appellant, the land department of the government changed this rule so that lands entered npon under the stone and timber act should he appraised and should he sold at the appraised value, rather than at the former price of two dollars and fifty cents ($2.50) per acre. In United States v. Braddock, 50 Fed. 669, the court said, at page 672:

“It is perfectly clear that the mere filing of the application to purchase under this act confers upon the applicant no right as against the United States, and that, until the applicant has acquired a vested right in the land, it is within the power of the government to withdraw it from sale or make any other disposition of it. The filing of an application to purchase may initiate a right to purchase as against a subsequent applicant for the same privilege, hut to say that the initiation of such a right imposes an obligation on the government to convey the title is to confound the manifest distinction pointed out by the supreme court in the Yosemite Valley Case, 15 Wall. 77, between the acquisition of a legal right to the land as against the owner, the United States, and the acquisition of a legal right as against other parties to he preferred in its purchase. ‘It seems to us little less than absurd,’ said the court in the case cited, ‘to say that a settler or any other person, by acquiring a right to he preferred in the purchase of property, provided a sale is made by the owner, thereby acquires a right to compel the owner to sell, or such an interest in the property as to deprive the owner of the power to control its disposition.’ ”

See, also, the Yosemite Valley Case [Hutchings v. Low], 82 U. S. 77. What is there said, we think, settles the question that a mere filing creates no vested right in the land. The right of the government to change the rule, or to entirely withdraw the land from sale, was not affected by appellant’s right to file at some later date.

Appellant also argues that the general land office had no authority to fix a greater price than two dollars and fifty cents ($2.50) per acre upon this tract of land. Section 1 of the stone and timber act, 20 Stat. at L. 89 (9 Fed. Stat. Ann., 2d ed., page 606), provides as follows:

“That surveyed public lands of the United States within the public-land states, . . . valuable chiefly for timber, but unfit for cultivation, and which have not been offered at public sale according to law, may be sold to citizens of the United States, or persons who have declared their intention to become such, in quantities not exceeding one hundred and sixty acres to any one person or association of persons, at the minimum price of two dollars and fifty cents per acre; . . .”

Appellant contends that this section fixed the price of two dollars and fifty cents ($2.50) per acre and that the general land office was without authority to change that price, and' that, when he tendered that price to the land department, that department was bound to accept it, and the refusal was error of law which may now be corrected by the court. We think it is plain that this section fixes only the minimum price at which the land may be sold. The clear inference is that the general land office may fix a greater price. This was done and, at the time the appellant filed upon the land, he was required to file under the rules and regulations then promulgated by the general land office. The words “minimum price,” used in this section, mean the lowest price, and not a fixed price of two dollars and fifty cents ($2.50) per acre. To hold otherwise would be to say that the words “minimum price” were superfluous and meant nothing. We are of the opinion, therefore, that the general land office or the secretary of the interior committed no error in law when a provision was made for the appraisement of such lands, and that the lands should be sold at the appraised value and not at the minimum price.

From these considerations, we are led to the conclusion that the trial court properly sustained the demurrer, and the judgment is therefore affirmed.

Holcomb, C. J., Bridges, and Parker, JJ., concur.

Fullerton, J., concurs in the result.  