Bird v. Winyer

• Decision Date: 14 March 1901
• Citation: 64 P. 178,24 Wash. 269
• Court: Washington Supreme Court
• Parties: BIRD v. WINYER et al.

64 P. 178

24 Wash. 269

BIRD v. WINYER et al.

Supreme Court of Washington

March 14, 1901

Appeal from superior court, Pierce county; J. A. Williamson, Judge.

Action to quiet title by George Bird against Henry Winyer and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Geo. T. Reid, James Wickersham, and Reid & Meade for appellant.

Samuel F. McAnally, for respondents.

MOUNT J.

The plaintiff brings suit against the defendants to remove a cloud from title to certain real estate, and alleges substantially as follows: That he was born of Indian parents a member of the tribe of Puyallup Indians, on the Puyallup Indian reservation, in the state of Washington. That under the terms of the treaty of December 26, 1854, between the United States and the said Puyallup Indians, he was entitled to have, and there was allotted, assigned, and patented to him in severalty, 40 acres of land on said reservation, as follows: The N.E. 1/4 of the S.W. 1/4 of section 12 township 20 N., range 3 E., W. M. That on January 17, 1881, with his wife, Mary Bird, an Indian woman also a member of said tribe, he accepted said allotment, located upon, improved, and occupied the same continuously thereafter, and is now in possession thereof, occupying the same as a permanent home. That on January 30, 1886, a patent issued to him, as follows: 'The United States of America to all to whom these presents shall come, greeting: Whereas, by the sixth article of the treaty concluded on the twenty-sixth day of December, Anno Domini one thousand eight hundred and fifty-four, between Isaac I. Stevens, governor and superintendent of Indian affairs of Washington Territory, on the part of the United States, and the chiefs, headmen, and delegates of the Nisqually, Puyallup, Steilacoom, Squawksin, S'Homamish, Stehchass, T'Peeksin, Squiaitt, and Sa-heh-wamish tribes and bands of Indians, it is provided that the president, 'at his discretion, cause the whole or any portion of the lands hereby reserved, or of such other land as may be selected in lieu thereof, to be surveyed into lots, and assign the same to such individuals or families as are willing to avail themselves of the privilege, and will locate on the same as a permanent home, on the same terms and subject to the same regulations as are provided in the sixth article of the treaty with the Omahas, so far as the same may be applicable'; and whereas, there has been deposited in the general land office of the United States as order bearing date January 20th, 1886, from the secretary of the interior, accompanied by a return dated October 30th, 1884, from the office of Indian affairs, with a list approved October 23rd, 1884, by the president of the United States, showing the names of members of the Puyallup band of Indians who have made selections of land in accordance with the provisions of the said treaties, in which list the following tracts of land have been designated as the selection of Teo-away or George Bird, and head of a family consisting of himself and Mary, viz. the southwest quarter of the northwest quarter of section fifteen (40.00 acres), the southeast quarter of the northeast quarter and the northeast quarter of the southeast quarter of section sixteen (80.00 acres), in township twenty-one north, and the northeast quarter of the southwest quarter of section twelve (40.00 acres), in township twenty north, of range three east of the Williamette meridian, Washington Territory, containing in the aggregate one hundred and sixty acres: Now, know ye, that the United States of America, in consideration of the premises, and in accordance with the directions of the president of the United States, under the aforesaid sixth article of the treaty of the sixteenth day of March, Anno Domini one thousand eight hundred and fifty-four, with the Omaha Indians, has given and granted, and by these presents does give and grant, unto the said Teo-away, or George Bird, as the head of the family as aforesaid, and to his heirs, the tracts of land above described, but with the stipulation contained in the said sixth article of the treaty with the Omaha Indians that the said tracts shall not be alienated or leased for a longer term than two years, and shall be exempt from levy, sale, or forfeiture, which conditions shall continue in force until a state constitution embraching such lands within its boundaries shall have been formed, and the legislature of the state shall remove the restrictions; and no state legislature shall remove the restrictions without the consent of congress. To have and to hold the said tracts of land, with the appurtenances, unto the said Teo-away, or George Bird, as the head of the family as aforesaid, and to his heirs, forever, with the stipulation aforesaid. In testimony whereof, I, Grover Cleveland, president of the United States, have caused these letters to be made patent, and the seal of the general land office to be hereunto affixed. Given under my hand, at the city of Washington, this thirtieth day of January, in the year of our Lord one thousand eight hundred and eighty-six, and of the independence of the United States the one hundred and tenth. By the President: Grover Cleveland, by M. McKean, Secretary. S.W. Clark, Recorder of the General Land Office.' That plaintiff and Mary Bird had no children of their own, but Mary Bird had two children by a former husband. That these two children did not live with plaintiff and Mary, and were not a part of the family. That about August 15, 1887, Mary died intestate, and defendants thereupon set up a claim to an undivided one-half interest in said lands, which claim is without any right, operates as a cloud upon plaintiff's title and the rents and profits of said premises, and causes plaintiff irreparable injury. That both plaintiff and defendants are citizens of the United States and residents of the state of Washington. A demurrer was filed by the defendants to be complaint on the grounds that the court had no jurisdiction, and that the said complaint did not state a cause of action. This demurrer being overruled, and exception taken, defendants thereupon filed their answer admitting all the allegations of the complaint, and alleged, in substance as follows: That the title to said lands remains in the government of the United States, and that this cause cannot be heard and determined without making the United States government a party to the suit; and, second, that a commission was appointed by the United States, whose duty it was to ascertain and determine the true owners of said land, and that said commission did thereafter ascertain and determine the ownership thereof, and found that the defendants were the owners of an undivided one-half thereof, and that the same was duly reported to the secretary of the interior, and that the said findings and determinations were duly approved by said secretary, and are conclusive and binding upon the plaintiff in this action; and, third, that when the patent aforesaid was issued to said George Bird it was issued under the provisions of the treaty before set out, and was for the benefit of the said family, and that Mary Bird, his wife, by said patent, took an equal interest in and to said land with the plaintiff. That defendants are heirs at law of said Mary Bird, and that upon the death of said Mary Bird, as aforesaid, the defendants herein became and are entitled to the said undivided one-half thereof. A demurrer by the plaintiff to the first two causes of defense above set out was sustained by the court, but as to the third was overruled, the said demurrer being to each of the said causes, for the reason that the facts stated did not constitute a defense. The plaintiff electing to stand upon his demurrer to the answer, the court made an order dismissing the said action. Plaintiff appeals from the said order of dismissal, and the defendants appeal from that part of the order sustaining the demurrer to the first and second answers, and also from the order of the court overruling the demurrer to the complaint.

The section of the treaty referred to is found in 10 Stat. 1044 and is as follows: 'The president may from time to at his discretion cause the whole or such portion of the land hereby reserved as he may think proper or of such other land as may be selected in lieu thereof, as provided for in article first, to be surveyed into lots, and to assign to such Indian or Indians (Indian or families) of said tribe as are willing to avail of the privilege, and who will locate on the same as a permanent home, if a single person over twenty-one years of age, one-eighth of a section; to each family of two, one-quarter section; to each family of three and not exceeding five, one-half section; to each family of six and not exceeding ten, one section; and so each family over ten in number, one-quarter section for every additional five members. And he may prescribe such rules and regulations as will insure to the family, in case of the death of the head thereof the possession and enjoyment of such permanent home and the improvements thereon. And the president may, at any time in his discretion, after such person or family has made a location on the land assigned for a permanent home, issue a patent to such person or family for such assigned land,...