PHILIPS, District Judge,
after stating the case as above, delivered the opinion of the court.
It will better enable us to understand tlie gravamen of this bill by giving a succinct analysis of the desert laud act. (1) It is made lawful for any citizen, etc., upon the payment of 25 cents per acre, to file a declaration under oath with the designated officer. The statute defines what this oath shall state, to wit, that the affiant “intends to reclaim a tract of desert land not exceeding one section, by conducting water upon the same within a period of three years thereafter.” Prom this it is to be observed that the applicant does nothing more in the initiative step than to pay the required fee of so much per acre, accompanied with the oath of an intention to reclaim the* tract of desert land by means of conducting water thereon within the given period. Whether or not tlie land proposed thus to be reclaimed is desert land is a mailer of preliminary proof, to the satisfaction of the register of the land office, which will be hereafter discussed. (2) In view of the fact that water rights within the territory of Utah were of the greater value, which the law in such territories has ever been most zealous to protect, having regard to priorities and to the equitable distribution of the water supply among the people, the statute follows the first clause with the proviso that the right to use the water to be conducted upon the land proposed to be1 reclaimed shall depend upon the prior appropriation in good faith, and (he right; is limited not to exceed the amount of water actually appropriated and necessarily used for irrigation and reclamation, and all other water, including surplus, from which the required supply is drawn, shall inure to the benefit of the public. (3) If the land has been surveyed, the declaration shall describe particularly (he section, and. if unsurveyed, shall describe it as near as practicable. (4) At any [336]*336time within three years after the filing of such declaration, upon making satisfactory proof to the designated officers of the reclamation of the tract of land in the manner aforesaid, and upon payment to the receiver of the further sum of $1 per acre, a patent for the land, not exceeding 640 acres in compact form, shall be issued to the* claimant.
The occasion on which the desert character of the land is to be ascertained is at the time of filing the declaration. This is a fact to be ascertained to the satisfaction of the register of the land office, by affidavits or other appropriate evidence. The declaration of the applicant in this case, as appears from the evidence in the record, was in conformity with the first clause of the statute above noted. It would seem that the land-office department had prescribed that the declaration should contain more than the statute requires, as the declaration further stated that the land, without irrigation, would not produce an agricultural crop. But her distinct statement is that she “became acquainted with said land by reliable information,” and, further, that her reclamation was not made for the purpose of fraudulently obtaining title to mineral, timber, or agricultural land, but for the purpose of faithfully reclaiming the same within three years by conducting water thereon. This application was further supported by the affidavits of two witnesses, certifying to the desert character of the land, based upon their personal knowledge of its situation and quality. It was upon this evidence that the land-office department determined that this tract of land was subject to entry under the desert land act. This was in the nature of an adjudication by the proper designated department of government; and, without a direct impeachment for fraud of this determination by the department, the ascertainment is final and conclusive upon the courts. As said by Mr. Justice Brewer, in U. S. v. Budd, 144 U. S. 167, 168, 12 Sup. Ct. 579:
“But after all, the question is not so much one of law for the courts, after the issue of the patent, as of fact, in the first instance, for the determination of the land officers. The courts do not revise their determination upon a mere question of fact. In the absence of fraud or some other element to invoke the jurisdiction and powers of a court of equity, the determination of the land officers as to the fact whether the given tract is or is not fit for cultivation is conclusive. There is, in such eases, no general appeal from the land officers to the courts, and especially after the title has passed, and the money been paid.”
The bill of complaint in this case does not attack what i.s known as the filing proceedings, in which the desert character of the land was determined, but is lodged wholly against the final proof of entry, made at the end of the three years, for obtaining the patent. What is the proof required by the last provision aforesaid of the statute? It is “satisfactory proof to the register and receiver of the reclamation of said tract of land in the manner aforesaid.” The charging part of the bill, in this particular, is that the affidavits for final entry were untrue; but it is not distinctly averred that the applicants knew the affidavits were false. In the closing paragraph it is alleged that a false statement was made by her, and confirmatory affidavits were produced by her, with the fraudulent purpose and intent of imposing upon the register and receiver and “the officers of your ora[337]*337tor.” This presented an essential matter argumentatively, and left to inference what should have been directly charged; but, as this objection was not struck at by demurrer, the substantive matter averred may be indulgently treated. In the search after fraud, the inquiry must be limited to such matters as the statute requires to be established in making the final proof. This proof is “satisfactory proof to the register and receiver of the reclamation of said tract of ¡and in the manner aforesaid.” “The manner aforesaid” evidently refers back to the first clause, and to the words “by conducting water upon the same.”
This statute, of course, in all its provisions, should receive such construction as will reasonably carry out and effectuate the legislative intent. It was the manifest; purpose of congress to hold out to the citizens of the United States an inducement to reclaim the waste and desert lands of the public domain, and thus render them subservient to the uses of husbandry by process of irrigation. This was to be accomplished by such a system of ditches as would carry to the subdivisions of the 'land, capable of being reached by the surface flow, a supply of water such as, when let out of the ditches by draw gates or smaller ditches, might spread over the accessible parts, and stimulate vegetable life. If the main ditches were thus constructed, with the acquired adequate supply of water to irrigate the lands for the purpose of cultivation in the ordinary method of carrying it out over the surface of the ground, we think the reclamation contemplated by the statute was accomplished, without showing that this appropriation was followed by actual use and cultivation. This seems to be in accord with recent rulings of the land-office department. Dickinson v. Auerbach, 18 Land Dec. Dep. Int. 16: Instructions of Secretary Teller to Commissioner McFarlan, 3 Land Dec. Dep. Int. 385. The courts, in dealing with the rights of settlers and locators under these land laws, have regard to the rulings and regulations of the department, when they do not contravene the letter and spirit of the statute. Orchard v. Alexander, 157 U. S. 383, 15 Sup. Ct. 685.
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PHILIPS, District Judge,
after stating the case as above, delivered the opinion of the court.
It will better enable us to understand tlie gravamen of this bill by giving a succinct analysis of the desert laud act. (1) It is made lawful for any citizen, etc., upon the payment of 25 cents per acre, to file a declaration under oath with the designated officer. The statute defines what this oath shall state, to wit, that the affiant “intends to reclaim a tract of desert land not exceeding one section, by conducting water upon the same within a period of three years thereafter.” Prom this it is to be observed that the applicant does nothing more in the initiative step than to pay the required fee of so much per acre, accompanied with the oath of an intention to reclaim the* tract of desert land by means of conducting water thereon within the given period. Whether or not tlie land proposed thus to be reclaimed is desert land is a mailer of preliminary proof, to the satisfaction of the register of the land office, which will be hereafter discussed. (2) In view of the fact that water rights within the territory of Utah were of the greater value, which the law in such territories has ever been most zealous to protect, having regard to priorities and to the equitable distribution of the water supply among the people, the statute follows the first clause with the proviso that the right to use the water to be conducted upon the land proposed to be1 reclaimed shall depend upon the prior appropriation in good faith, and (he right; is limited not to exceed the amount of water actually appropriated and necessarily used for irrigation and reclamation, and all other water, including surplus, from which the required supply is drawn, shall inure to the benefit of the public. (3) If the land has been surveyed, the declaration shall describe particularly (he section, and. if unsurveyed, shall describe it as near as practicable. (4) At any [336]*336time within three years after the filing of such declaration, upon making satisfactory proof to the designated officers of the reclamation of the tract of land in the manner aforesaid, and upon payment to the receiver of the further sum of $1 per acre, a patent for the land, not exceeding 640 acres in compact form, shall be issued to the* claimant.
The occasion on which the desert character of the land is to be ascertained is at the time of filing the declaration. This is a fact to be ascertained to the satisfaction of the register of the land office, by affidavits or other appropriate evidence. The declaration of the applicant in this case, as appears from the evidence in the record, was in conformity with the first clause of the statute above noted. It would seem that the land-office department had prescribed that the declaration should contain more than the statute requires, as the declaration further stated that the land, without irrigation, would not produce an agricultural crop. But her distinct statement is that she “became acquainted with said land by reliable information,” and, further, that her reclamation was not made for the purpose of fraudulently obtaining title to mineral, timber, or agricultural land, but for the purpose of faithfully reclaiming the same within three years by conducting water thereon. This application was further supported by the affidavits of two witnesses, certifying to the desert character of the land, based upon their personal knowledge of its situation and quality. It was upon this evidence that the land-office department determined that this tract of land was subject to entry under the desert land act. This was in the nature of an adjudication by the proper designated department of government; and, without a direct impeachment for fraud of this determination by the department, the ascertainment is final and conclusive upon the courts. As said by Mr. Justice Brewer, in U. S. v. Budd, 144 U. S. 167, 168, 12 Sup. Ct. 579:
“But after all, the question is not so much one of law for the courts, after the issue of the patent, as of fact, in the first instance, for the determination of the land officers. The courts do not revise their determination upon a mere question of fact. In the absence of fraud or some other element to invoke the jurisdiction and powers of a court of equity, the determination of the land officers as to the fact whether the given tract is or is not fit for cultivation is conclusive. There is, in such eases, no general appeal from the land officers to the courts, and especially after the title has passed, and the money been paid.”
The bill of complaint in this case does not attack what i.s known as the filing proceedings, in which the desert character of the land was determined, but is lodged wholly against the final proof of entry, made at the end of the three years, for obtaining the patent. What is the proof required by the last provision aforesaid of the statute? It is “satisfactory proof to the register and receiver of the reclamation of said tract of land in the manner aforesaid.” The charging part of the bill, in this particular, is that the affidavits for final entry were untrue; but it is not distinctly averred that the applicants knew the affidavits were false. In the closing paragraph it is alleged that a false statement was made by her, and confirmatory affidavits were produced by her, with the fraudulent purpose and intent of imposing upon the register and receiver and “the officers of your ora[337]*337tor.” This presented an essential matter argumentatively, and left to inference what should have been directly charged; but, as this objection was not struck at by demurrer, the substantive matter averred may be indulgently treated. In the search after fraud, the inquiry must be limited to such matters as the statute requires to be established in making the final proof. This proof is “satisfactory proof to the register and receiver of the reclamation of said tract of ¡and in the manner aforesaid.” “The manner aforesaid” evidently refers back to the first clause, and to the words “by conducting water upon the same.”
This statute, of course, in all its provisions, should receive such construction as will reasonably carry out and effectuate the legislative intent. It was the manifest; purpose of congress to hold out to the citizens of the United States an inducement to reclaim the waste and desert lands of the public domain, and thus render them subservient to the uses of husbandry by process of irrigation. This was to be accomplished by such a system of ditches as would carry to the subdivisions of the 'land, capable of being reached by the surface flow, a supply of water such as, when let out of the ditches by draw gates or smaller ditches, might spread over the accessible parts, and stimulate vegetable life. If the main ditches were thus constructed, with the acquired adequate supply of water to irrigate the lands for the purpose of cultivation in the ordinary method of carrying it out over the surface of the ground, we think the reclamation contemplated by the statute was accomplished, without showing that this appropriation was followed by actual use and cultivation. This seems to be in accord with recent rulings of the land-office department. Dickinson v. Auerbach, 18 Land Dec. Dep. Int. 16: Instructions of Secretary Teller to Commissioner McFarlan, 3 Land Dec. Dep. Int. 385. The courts, in dealing with the rights of settlers and locators under these land laws, have regard to the rulings and regulations of the department, when they do not contravene the letter and spirit of the statute. Orchard v. Alexander, 157 U. S. 383, 15 Sup. Ct. 685.
The government, on the trial of this case, put in evidence a grant of water supply to the claimant, made to her between the filing and the final proof of entry, and made no sufficient countervailing proof of its inadequacy. On these issues of fact as to the sufficiency of the ditching and irrigation, the trial court in its opinion found in the record was satisfied, from the evidence, that outside of the high points, incapable of irrigation or cultivation, “the weight of the testimony shows that sufficient water (lowed in the streams to irrigate all that portion of the entries susceptible of irrigation. In any event, it, falls far short of proving that any misrepresentation was intentionally made on that subject.” The conclusion of fact, on the evidence, reached by the trial court, will not be disturbed, in the absence of such apparent misconception of the wreight of testimony as in our judgment would render the conclusion palpably unjust.
The remaining question for determination is: What was the effect of the amendment; to the bill by which the Salina Stock Company was brought into the case? Counsel for the government has argued the appeal as if the pleadings presented the case of a fraudulent com[338]*338bination between Mrs. Mackintosh and said company, by which it was arranged, in contravention of the spirit of the statute, that she should obtain this patent as the mere instrument of the company, and then transfer the title to it, as the real party in interest, whereby this corporation got by indirection the effect of an entry which it could not make directly. But this is neither the case presented in the bill nor satisfactorily established by the evidence. The gravamen of the amended bill is (1) that the company took the deed from the patentee with notice of the fraudulent means whereby the patent was procured, and (2) that the entry was made and the patent obtained for the benefit of the company. No fraudulent conspiracy is averred to accomplish this result, nor is it alleged or shown that the land was entered with the money of the company; but, on the contrary, the bill distinctly alleges that the filing money of 25 cents . per acre and the final purchase money of $1 per acre were paid by the patentee. There is nothing in the statute denouncing a mere intention on the part of the locator to transfer his or her title, when perfected, for the benefit of even a corporation, when the locator pays the purchase money and complies with the requirements of the statute respecting irrigation. In such case, if the patent be issued to her, she could transfer to whom she pleased. As said by Mr. Justice Brewer, in U. S. v. Budd, 144 U. S. 163, 12 Sup. Ct. 577:
“The act does not in any respect limit the dominion which the purchaser has over the land after its purchase from the government, or restrict in the slightest his power of alienation. * * * If, when the title passes from the government, no one save the purchaser has any claim upon it, or any contract or agreement for it, the act is satisfied.”
Neither was there any evidence offered on behalf of the government impeaching the consideration price expressed in the deed from Mrs. Mackintosh to the company. It is true the evidence shows that Mrs. Mackintosh and Mrs. Chambers, during the transactions in question, were the wives of two of the promoters and directors of the Salina Stock Company; and there was evidence of an inferential character that the work of irrigation done on the land was under the direction, of the agents of the company, and the inference might not be a violent one that this improvement was done at the expense of the company. But these discrediting circumstances were' not sufficient, in the opinion of the trial court, to overcome the other conspicuous and persuasive facts that the patentees paid with their own money, as the bill shows, the whole purchase money of this land, and that they acquired in their own name the right of water supply, and the further fact that there was no reliable evidence tending to show that the valuable consideration expressed in the deeds of conveyance to the stock company was fictitious.
In view of the allegations of the bill and the proofs, we fail to find sufficient grounds for overruling the conclusion Of the court below. The decrees in both cases are, therefore, affirmed.