Kirk v. Olson

Decision Date10 December 1917
Docket NumberNo. 81,81
Citation62 L.Ed. 256,245 U.S. 225,38 S.Ct. 114
PartiesKIRK et al. v. OLSON
CourtU.S. Supreme Court

Mr. William G. Porter, of Aberdeen, S. D., for plaintiffs in error.

Messrs. Samuel Herrick, of Washington, D. C., and Clifford A. Wilson, of Hot Springs, S. D., for defendant in error.

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

This was a suit to quiet the title to a small tract of land in South Dakota which had been the subject of conflicting claims under the public land laws. One claim was made under the placer mining law and the other under the homestead law. Both claims embraced other lands, the tract in question being all that was common to both. It was subject to disposal under the placer mining law if valuable for placer mining, and under the homestead law1 if valuable only for agriculture. Whether it was valuable for the one purpose or the other was a question of fact to be determined by the officers of the Land Department. The claim under the placer mining law was first brought to the attention of those officers and, upon ex parte proofs presented in support of that claim, they found the tract to be valuable for placer mining and permitted it to be included in a placer entry. The homestead claim was next brought to their attention and, upon ex parte proofs presented in support of that claim, they found the tract to be valuable only for agriculture and permitted it to be included in a homestead entry. Thus the findings upon the ex parte proofs were incon- sistent and the tract was included in conflicting entries. This was discovered before either entry was passed to patent, and so a hearing was ordered to determine the true character of the land. The placer entry had been made by two brothers and through some inadvertence one of these was not notified of the hearing. The other brother and the homestead entryman appeared and the hearing proceeded as if all parties in interest were present; that is to say, there was no reference to the absence of the placer claimant not notified. Upon the proofs produced at this hearing the land officers found the tract to have no value for placer mining and to be valuable only for agriculture, and as a result of the finding the tract was eliminated from the placer entry and the homestead entry was passed to patent. The patentee afterward sold and transferred the tract to the plaintiff, who knew that a right to it was still being asserted under the placer entry.

By their answer, which was in the nature of a cross-bill, the defendants, who were the placer claimants, asserted that they had located and were entitled to the mining claim before mentioned, that the tract in question was lawfully included in that claim and was valuable for placer mining, that the entry of the claim at the land office was lawful and entitled them to a patent, and that the subsequent elimination of the tract from that entry was unlawful and violative of their rights, because the earlier finding that the tract was valuable for placer mining was conclusive upon that point, and, if not conclusive, could not be recalled or disturbed except upon due notice to both placer claimants and after giving them a reasonable opportunity to sustain their entry by evidence and otherwise. The right of the homestead claimant to have the tract patented to him was questioned on other grounds, but these need not be noticed, for they plainly were such as could not be urged by the defendants. The answer con- cluded with a prayer that the plaintiff be decreed to hold the title to the tract in trust for the defendants and compelled to convey the same to them.

At the trial the evidence bearing upon the character of the tract disclosed, without any contradiction, that it had no value for...

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4 cases
  • Procter & Gamble Company v. FTC
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • March 18, 1966
    ...At best, its first decision was interlocutory in nature and was subject to reconsideration and change. Kirk v. Olson, 245 U.S. 225, 38 S.Ct. 114, 62 L.Ed. 256 (1917); Cia Mexicana De Gas, S.A., v. F. P. C., 167 F.2d 804 (5th Cir., 1964); 2 Am.Jur.2d, Administrative Law, § Procter relies on ......
  • Stockley v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 24, 1921
    ... ... Abbey, 228 U.S. 42, 33 ... Sup.Ct. 503, 57 L.Ed. 724; Hawley v. Diller, 178 ... U.S. 481, 488, 20 Sup.Ct. 986, 44 L.Ed. 1157; Kirk v ... Olson, 245 U.S. 225, 228, 38 Sup.Ct. 114, 62 L.Ed. 256 ... 5. The ... findings of the General Land Commissioner and the ... ...
  • Florer v. Queen City Grain Co., Inc.
    • United States
    • Ohio Court of Appeals
    • October 28, 1981
    ...right of an aggrieved party may not be made without notice and an opportunity to be heard. Kirk v. Olson (1917), 245 U.S. 225. In the Kirk the irregularity was held to be not prejudicial, i.e., it did not affect a substantial right of the complaining party. A change by which parties cannot ......
  • United States Johnson v. Payne
    • United States
    • U.S. Supreme Court
    • June 1, 1920
    ...L. Ed. 168, until the act was done. New Orleans v. Paine, 147 U. S. 261, 266, 13 Sup. Ct. 303, 37 L. Ed. 162; Kirk v. Olson, 245 U. S. 225, 228, 38 Sup. Ct. 114, 62 L. Ed. 256. The petitioners' names never were on the rolls. The Secretary was the final judge whether they should be, and they......

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