As the Secretary rightly held petitioner not entitled to the permit, he has no standing to maintain this suit. Fisher v. Rule, 248 U.S. 314, 318. Anicker v. Gunsburg, 246 U.S. 110, 117. Decree affirmed.
If, as he asserts, the tract was so occupied or appropriated that it properly could not be selected and patented in lieu of land in place found to be mineral, that may afford an adequate basis for a suit by the United States to cancel the patent, Diamond Coal Coke Co. v. United States, 233 U.S. 236, or afford a basis for holding the railroad company as a trustee of the title for him if, notwithstanding the silence of the present record on the subject, he was entitled to a patent for the tract, Svor v. Morris, 227 U.S. 524, 529-530; but it does not enable him to complain on behalf of the United States or to assail the patent collaterally. Hoofnagle v. Anderson, 7 Wheat. 212, 214-215; Smelting Co. v. Kemp, 104 U.S. 636, 647; Bohall v. Dilla, 114 U.S. 47, 51; Sparks v. Pierce, 115 U.S. 408, 412; Fisher v. Rule, 248 U.S. 314, 318. The Supreme Court of the State in its final opinion came nearer the views here expressed than did the trial court, but it assumed that the reconveyance by the railroad company to the United States was not accepted by the latter and so was of no effect.
Appellants seek only to invalidate the exchanged land titles. If a private cause of action does not exist in favor of a particular plaintiff, the standing issue need not even be addressed. National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 456, 465 n. 13, 94 S.Ct. 690, 696 n. 13, 38 L.Ed. 2d 646 (1974); Raypath, Inc. v. City of Anchorage, 544 F.2d 1019, 1021 (9th Cir. 1976). It is well established federal law that a plaintiff must establish his own entitlement to the land before the validity of a land patent may be challenged. See, e.g., Fisher v. Rule, 248 U.S. 314, 318, 39 S.Ct. 122, 123, 63 L.Ed. 263 (1919); St. Louis Smelting and Refining Co. v. Kemp, 104 U.S. (14 Otto) 636, 647, 26 L.Ed. 875 (1881); Donnelly v. United States, 850 F.2d 1313, 1320 (9th Cir. 1988), cert. denied, ___ U.S. ___, 109 S.Ct. 878, 102 L.Ed.2d 1001 (1989); Lee v. United States, 809 F.2d 1406, 1410-11 (9th Cir. 1987), cert. denied, ___ U.S. ___, 108 S.Ct. 772, 98 L.Ed.2d 859 (1988); Raypath, Inc., supra, 544 F.2d 449, 1021; Kale v. United States, 489 F.2d 449, 454 (9th Cir. 1973), cert. denied, 417 U.S. 915, 94 S.Ct. 2617, 41 L.Ed.2d 220 (1974). We have succinctly stated who is a proper party to challenge the validity of a land patent or deed:
212, 5 L.Ed. 437 (1822). It is not sufficient for one challenging a patent to show that the patentee should not have received the patent; he must also show that he (the challenger) is entitled to it. Duluth Iron Range RR. v. Roy, 173 U.S. 587, 590, 19 S.Ct. 549, 43 L.Ed. 820 (1899); Fisher v. Rule, 248 U.S. 314, 318, 39 S.Ct. 122, 63 L.Ed. 263 (1919). Kale can satisfy neither of the criteria for a successful attack upon a land patent.
Urging that the appellants have no rights which are the proper subject of equitable protection, the appellees rely upon such cases as Buford v. Houtz, 133 U.S. 320, 10 S.Ct. 305, 33 L.Ed. 618 (1890); Omaechevarria v. Idaho, 246 U.S. 343, 38 S.Ct. 323, 62 L.Ed. 763 (1918); Sparks v. Pierce, 115 U.S. 408, 6 S.Ct. 102, 29 L.Ed. 428 (1885); and The Yosemite Valley Case, 15 Wall. 77, 21 L.Ed. 82 (1872). They rely also upon Fisher v. Rule, 248 U.S. 314, 39 S.Ct. 122, 63 L.Ed. 263 (1919); Burke v. Southern Pac. R.R., 234 U.S. 669, 34 S.Ct. 907, 58 L.Ed. 1527 (1914); and Campbell v. Weyerhaeuser, 8 Cir., 161 F. 332 (1908). We think none of these cases is determinative of the question under discussion.
In this court's opinion he does not. Northern Pacific Ry. v. McComas, 250 U.S. 387, 39 S.Ct. 546, 63 L.Ed. 1049 (1919); Fisher v. Rule, 248 U.S. 314, 39 S.Ct. 122, 63 L.Ed. 263 (1919). Were the challenge to be successful, title could not inure to nor vest in the State of Minnesota in any event but would revert to the United States.
The defendants here may not succeed by asserting facts which would afford relief to the government. Fisher v. Rule, 248 U.S. 314, 39 Sup.Ct. 122, 63 L.Ed. 263. Undoubtedly the acts of Pinky, of posting notices and placing the improvements on the land, as shown by the evidence, were the assertion of a right; it created a condition.