Cunningham appeared before the Receiver and Register, and claimed the right under the pre-emption laws, to enter the land which was the subject of controversy.

—the register and receiver had not acted on the proof at all; yet it was held that the proof ought to have been satisfactory to them, and this court decreed in favor of the pre-emption.

The right set up by the plaintiffs in error arises under an act of Congress, and the decision of the supreme court of Arkansas was against that right, consequently this court has jurisdiction of the case, without regard to the particular ground upon which the decree of the state court is based.

Where a proceeding to set aside an entry for land was ex parte, and without notice, it is not conclusive, and a court of equity may inquire into the proceedings and afford relief.

And yet this court has uniformly held that a pre emptioner acquires a right by his settlement under the law, although the land department disapproves of the entry.

A pre-emption based on the act of May 29, 1880, fully sustained by proof of settlement and improvement, is superior to titles under floating rights derived from the act of July 14, 1832.

If other parties possess equities superior to those of the patentee, upon which the patent issued, a court of enforce such equities by compelling & equity will, upon proper proceedings, transfer of the legal title, or enjoining its enforcement, or canceling the patent

A court of equity may, in a direct proceeding for that purpose, set aside such a patent or certificate, or declare the legal title under it to be held in trust for one who has a better right to it, in cases in which the action of the Land Department has resulted from fraud, mistake or erroneous views of the law.

Kenneth Baillio and EB Dubuisson argued the cause, and, with Mr. Hampden Story, filed a brief for plaintiff in error: Federal and constitutional questions are presented for review by this court under the writ of error granted in this case.

The rule laid down by the Supreme Court is that to the Secretary is intrusted the final determination of facts in such cases as may come before him, and that his decisions as to facts are conclusive upon all the courts, but that his interpretation of the law is always subject to review and to reversal in a court of competent jurisdiction

[BOOK] A Commentary on the Mining Legislation of Congress

[BOOK] Digest of the Opinions of the Attorneys General of the United States