George v. Riddle
| Decision Date | 22 May 1899 |
| Citation | 94 F. 689 |
| Parties | GEORGE et al. v. RIDDLE et al. |
| Court | United States Circuit Court, District of Washington, Southern Division |
Richard H. Ormsbee, Melvin M. Godman, Thomas H. Brents, and Wellington M. Clark, for complainants.
B. L. & J. L. Sharpstein, for defendants.
The undisputed facts in this case, briefly stated, are as follows:
On November 8, 1870, the land in controversy appeared upon the plats in the land office for the district in which the same are situated to be vacant, unappropriated public land offered for sale under the then existing land laws of the United States at private cash entry; and on said date James K. Kennedy made application to purchase the same, and paid the price therefor to the receiver. The officers accepted the application and money, and issued to said purchaser a patent certificate, stating that he had purchased and paid for the land according to law, and was entitled to receive a patent therefor; but no patent has ever been issued to him or to his vendees. Nearly two years after the entry, and before any proceedings to cancel the same had been commenced, said purchaser sold part of the land to one George, and the remaining part to one Bruce; and immediately thereafter these vendees caused their deeds to be properly recorded in the public records of Walla Walla county, in which the land is situated, and inclosed the same by substantial fences, and commenced cultivation thereof, and have made valuable improvements thereon; and they and their successors in interest have, ever since the date mentioned, held actual, visible, and exclusive possession of said land, except as hereinafter recited; and the plaintiffs now claim to be the equitable owners, as the lawful successors in interest of their ancestors, George and Bruce, the vendees of the original purchaser from the government. The land is part of an odd-numbered section, but not part of the grant to the Northern Pacific Railroad Company, because not within the limits of the granted lands as fixed and determined by the definite location of the line of the railroad, and it has not been selected or claimed by the railroad company as lieu land. Nevertheless the land department has assumed to cancel the above-mentioned cash entry on the ground that at the date of the entry the land was not subject to sale, because situated within 40 miles of the line of the general route of the Northern Pacific Railroad, as indicated on a map filed in the general land office on the 13th of August, 1870. The only authority for canceling the entry claimed by the land department of the defendants is found in the 6th section of the charter of the Northern Pacific Railroad Company (Act July 2, 1864 (13 Stat 365)), which reads as follows:
* * * '
It was the practice of the land department to promulgate an order withdrawing from sale, and from pre-emption and homestead entries, all odd-numbered sections of land within 40 miles of the proposed line of the Northern Pacific Railroad, after receiving each of the maps of the general route which the company filed, and before the grant had become legally attached to the land within such limits by the definite location of the line of the road; but no order withdrawing the lands in controversy from sale was promulgated until December 8, 1870, which was a month after the above-mentioned cash entry. Before the initiation of any proceedings to cancel said entry, to wit, on February 21, 1872, the Northern Pacific Railroad Company filed in the general land office an amended map of its general route, making such a deviation from the line indicated by the map filed August 13, 1870, as to exclude the land in controversy from the 40-mile limit. The action of the land department in assuming to cancel the entry was initiated after the original purchaser had sold the land and conveyed all his interest therein, and after his vendees had recorded their deeds and entered into actual possession of the land; but notice of such proposed cancellation was not given to them, and they had no actual information thereof, or opportunity to be heard in opposition thereto, and the money paid to the government for the land has not been repaid or tendered to the original purchaser his vendees, or their successors. In the year 1882 the father of the defendant Riddle purchased George's part of the land on credit, and gave a mortgage upon it for the purchase money, no part of which has been paid; and the mortgage has been duly foreclosed and repurchased by George, who resumed possession. During the time that the George tract was in possession of said purchaser, he neglected to keep up the fences, and said defendant made entry upon the land in his father's possession, through a gap in the fence, and erected a house thereon, and thereafter filed an application in the land office to enter the entire tract, including the portion in possession of the Bruce...
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