89 F. 811 (8th Cir. 1898), 1,047, Germania Iron Co. v. James

Docket Nº:1,047.
Citation:89 F. 811
Party Name:GERMANIA IRON CO. v. JAMES et al.
Case Date:October 10, 1898
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 811

89 F. 811 (8th Cir. 1898)

GERMANIA IRON CO.

v.

JAMES et al.

No. 1,047.

United States Court of Appeals, Eighth Circuit.

October 10, 1898

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This is an appeal from a judgment which sustained a demurrer to a bill brought to devest the title to certain land in section 30, township 63 N., of range 11 W. of the fourth P.M., in the state of Minnesota, from the appellees, Houghton E. James and others, and to vest it in the appellant, on the ground that through an error in law the secretary of the interior caused a patent to this land to be issued to one Craig, from whom the appellees derived their claim, when, in the absence of that error, he would have directed its issue to Emil Hartman, who has conveyed his right to the land to the appellant, the Germania Iron Company. These are the essential facts alleged in the bill: On February 18, 1898, the land in question had been segregated from the public domain, and appropriated to private use, by the location of Sioux half-breed scrip upon it. A contest had arisen between the locator of the scrip and one who subsequently applied to pre-empt the land, had been heard by the local land officers at Duluth, Minn., and was pending on appeal before the secretary of the interior. On that day the secretary filed an opinion in this contest in his office in Washington, in which he adjudged that the location of the scrip was invalid, that the attempted pre-emption was fraudulent and void, and that the land in question was thus left open to disposal under the public land laws of the United States applicable thereto. There was then 'in force in the department of the interior a rule and regulations, and a settled practice, and a long line of decisions by the department officers, providing and declaring that no decision of the honorable secretary of the interior or the commissioner of the general land office canceling an entry or appropriation of public lands should take effect as a release of such lands from such appropriation, or as a restoration thereof to the public domain open for entry or disposal under the public land laws, until such decision had been officially communicated to the local land officers of the district in which the land should be situate, and until notation of such cancellation had been made upon the plats or other records of the local land office'; and, under the rules and regulations of the land department then in force, the duties of the local land officers were to be discharged in their respective offices, and during the hours devoted to public business. The office hours of these officers were from 9 o'clock in the forenoon until 4 o'clock in the afternoon, and, under the rules and regulations of the land department, no application to make an entry of land could be received by the register or receiver out of office hours. The decision of the secretary was first received by the local land officers at Duluth on the evening of February 22, 1889. On the morning of February 23, 1889, before opening the office for business, the cancellation of the entry of this land with the Sioux scrip was noted on the books and plats of the local land office. At 9 o'clock in the forenoon of that day the office was promptly opened for business, and Emil Hartman was the first person who applied to enter the land after the office was opened, though many applicants entered with him, and presented their applications as rapidly as they could be noted. Hartman applied to locate a Porterfield land warrant upon the land, paid the fees according to law, and his application was duly accepted and allowed by the local land officers. The right and title he thus acquired are now vested in the appellant. The claim of the appellees arises in this way: At about 5 o'clock in the afternoon of February 18, 1889, and again before 9 o'clock of February 19, 1889, Houghton E. James applied to the local land officers at their office in Duluth to make a homestead entry of this land; but his application was rejected

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by the officers, in accordance with the rules and regulations pleaded, because the land was still withdrawn from the public domain by its former entry with the Sioux half-breed scrip. Thereupon a contest arose, and a hearing was had before the local land officers on the merits of the various applications for this land. Appeals were taken from their decisions, and from the subsequent decision of the commissioner of the general land office, to the secretary of the interior; and on December 21, 1884, he decided that, although Hartman was the first person who entered the local land office, and the first person who made application to enter this land, after the decision of February 18, 1889, was officially communicated to the local land officers, and the former entry of the land was canceled, yet, the attempted homestead entry of James out of office hours, and before the decision was received by the officers, was valid and effectual, and was entitled to priority over the entry of Hartman. In pursuance of this decision he caused the entry of Hartman to be canceled, permitted James to enter the land as a homestead, and then to relinquish it, and thereupon caused a patent to be issued to one Craig, who entered it...

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