A narrow but important question is presented by this record. The land in controversy is an odd-numbered section within the place limits of the grant to the Central Pacific Railroad Company. The identification of the lands which passed by that grant was made at the time the map of definite location was filed in the office of the Secretary of the Interior, and by him approved, to wit, October 20, 1868; and the question is whether there was anything in the occupation or entry by Olney to defeat the title apparently then passing to the railroad company. That there was nothing of record affecting the validity of that title is conceded. No one, by an investigation of any public record, could have ascertained at that time that there was any doubt in respect thereto.
It is true that there was then no local land office in which those seeking to make preemption or homestead entries could file their declaratory statements or make entries, and the want of such an office is made by the supreme court of the state one of the main grounds for holding that the land did not pass to the railroad company. We agree with that court fully in its discussion of the general principles involved in the failure of the government to provide a local land office. The right of one who has actually occupied, with an intent to make a homestead or preemption entry, cannot be defeated by the mere lack of a place in which to make a record of his intent. In many states the statutory provision in respect to suits is that the defendant, on receiving service of summons, must within a certain time file his answer in the office of the clerk of the court. It cannot be doubted that if before he is thus called upon to file his answer the office is burned and the clerk dies, and there is no place or individual at which or with whom his answer can be filed, such accident or omission will not defeat his right to make a defense, or give to the plaintiff a right to take judgment by default. Where the accident or omission is not the fault of the party, but of the government, or some official of the government, such accident or omission cannot defeat the right of the individual, and in all that is said in respect to this by the supreme court of the state of Utah we fully agree. If Olney was in possession of this tract before October 20, 1868, with a view of entering it as a homestead or pre-emption claim, and was simply deprived of his ability to make his entry or declaratory statement by the lack of a local land office, he could undoubtedly, when such office was established, have made his entry or declaratory statement in such way as to protect his rights. But when the office was opened he filed his declaratory statement, and in that he did not suggest that he had been in the occupation of the premises prior to October 20, 1868, but declared that on the 23d of April, 1869, he settled and improved the tract. Assume that such declaration was subject to correction by him, that he could thereafter have corrected the mistake (if it was a mistake) and shown that he occupied the premises prior to October 20, 1868, with an intent to enter them as a homestead or pre-emption claim, he never did make the correction, and there is nothing in the record to show that his occupation prior to April 23, 1869, was with any intent to acquire title from the United States.
And in this respect we must notice the oftrepeated declaration of this court, that 'the law deals tenderly with one who, in good faith, goes upon the public lands with a view of making a home theren. ' Ard v. Brandon, 156 U.S. 537, 543, 39 L. ed. 524, 526, 15 Sup. Ct. Rep. 406; Northern P. R. Co. v. Amacker, 175 U.S. 564, 567, 20 Sup. Ct. Rep. 236, 44 L. ed. --. With this declaration, in all its fulness, we heartily concur, and have no desire to limit it in any respect; and if Olney, the original entryman, was pressing his claims, every intendment should be in his favor in order to perfect the title which he was seeking to acquire. But when the original entryman, either because he does not care to perfect his claim to the land, or because he is conscious that it is invalid, abandons it, and a score of years thereafter some third party comes in and attempts to dispossess the railroad company (grantee of and unquestioned during these many years,-he and unquestioned during these many years-he does not come in the attitude of an equitable appellant to the consideration of the court.
