Cahalan v. McTague

• Decision Date: 20 April 1891
• Citation: 46 F. 251
• Parties: CAHALAN v. McTAGUE.
• Court: U.S. Court of Appeals — Ninth Circuit

46 F. 251

CAHALAN v. McTAGUE.

United States Circuit Court, D. Montana.

April 20, 1891

Cullen Sanders & Shelton, for plaintiff.

Word &amp Smith, for defendant.

KNOWLES J.

The plaintiff sets forth in his complaint facts sufficient to show that the Northern Pacific Railroad Company received from the United States a grant to the S.W. 1/4 of the S.W. 1/4 the S.W. 1/4 of the N.W. 1/4, and the N. 1/2 of the S.W. 1/4 of section 11 in township 13 N., of range 12 -. of the principal meridian for Montana, situate in Deer Lodge county territory (now state) of Montana; that plaintiff purchased said premises from said railroad company, and was in the actual possession of said premises, when, on the 21 st day of March, 1889, defendant entered upon the same, and took possession thereof, without plaintiff's consent, and now withholds possession thereof from plaintiff. Defendant sets forth in his answer to said complaint that in the month of September, 1871, one Louis B. Barthelotte, with his family settled upon the premises in dispute, and occupied and improved the same as a home, and with him family continued to reside and live upon said land, and to cultivate the same, and on the 13th day of June, 1878, made application at the United States land-office at Helena, Mont., to enter the said land under the laws of the United States; that said application was allowed by the United States land-office; that said Barthelotte and his grantees remained upon, occupied, used, and enjoyed said land as a home, and were in the use, occupation, and enjoyment, and possession of said land on the 6th day of July, 1882, at which time the Northern Pacific Railroad Company filed its map and location of its line of its road, as definitely fixed, in the office of the commissioner of the general land-office, and on said date the land was in the absolute possession and under the control of the said Louis B. Barthelotte and his grantees, occupied as a home. But it is further alleged that on the 29th day of July, 1880, the said Barthelotte sold his right, title, and interest in and to the improvements on said land to Pat Cahalan, a citizen of the United States, and the said Cahalan then and there went into the possession of said land and held it until the 21st day of March, 1889, when defendant entered into possession of the same, and filed his declaratory statement, and made his pre-emption entry, upon said land, and that he is using, occupying, and holding possession thereof. It is also alleged that the Northern Pacific Railroad Company filed a map of its general route, in the proper office, in the month of February, 1872, and it would appear that said land was surveyed in 1872. The plaintiff demurred to this answer, on the ground that it did not state facts sufficient to constitute a defense to plaintiff's cause of action as set forth in his complaint. This presents to the court for consideration the question as to whether the premises in dispute under the allegations in the answer were public lands not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of the said Northern Pacific Railroad Company's railroad was definitely fixed and a plat thereof filed in the office of the commissioner of the general land-office, which act, it appears, was performed on the 6th day of July,...