Fred Hewitt v. Emil Schultz

• Decision Date: 07 January 1901
• Docket Number: No. 34,34
• Citation: 45 L.Ed. 463,180 U.S. 139,21 S.Ct. 309
• Parties: FRED HEWITT, Plff. in Err. , v. EMIL SCHULTZ and Friederika Schultz
• Court: U.S. Supreme Court

180 U.S. 139

21 S.Ct. 309

45 L.Ed. 463

FRED HEWITT, Plff. in Err.,

v EMIL SCHULTZ and Friederika Schultz.

No. 34.

Argued October 15, 16, 1900.

Decided January 7, 1901.

Messrs. J. H. McGowan, James A. Kellogg, C. D. Austin, George Turner, and George H. Patrick for plaintiff in error.

Messrs. C. W. Bunn and James B. Kerr for defendants in error.

Mr. Justice Harlan delivered the opinion of the court:

This action is in the nature of ejectment. It was brought to recover the possession of the northeast quarter of section 13 township 132, north of range 57, west of the 5th principal meridian, situated in the county of Sargent, North Dakota, and of which the plaintiff Hewitt, now plaintiff in error, claimed to be the owner in fee in virtue of a patent issued to him by the United States.

The present defendants in error, who were defendants below, claimed title as purchasers from the Northern Pacific Railroad Company, which asserted ownership of the land in virtue of the act of Congress of July 2d, 1864, granting public lands to that corporation to aid in the construction of a railroad and telegraph line from Lake Superior to Puget sound on the Pacific coast by the northern route. 13 Stat. at L. 365, chap. 217.

There was a verdict and judgment in the court of original jurisdiction in favor of the plaintiff. But that judgment was reversed in the supreme court of North Dakota, and the cause was remanded, with directions to dismiss the action. 7 N. D. 601, 76 N. W. 230.

This appeal questions the final judgment of the highest court of North Dakota upon the ground that it denied to Hewitt rights and privileges specially set up and claimed by him under the laws of the United States.

The record contains a voluminous finding of facts based upon the stipulation of the parties. In the view taken of the case by this court many of those facts are immaterial. The precise case to be determined is shown by the following statement, based upon the finding of facts:

On the 30th day of March 1872, the railroad company, having, by a map, designated its general route from the Red River of the North to the Missouri river in the then territory of Dakota, an acting commissioner of the General Land Office transmitted to the register and receiver of the proper local office a diagram showing such route, and, in conformity with instructions from the Secretary of the Interior, directed them 'to withhold from sale or location, pre-emption, or homestead entry all the surveyed or unsurveyed odd-numbered sections of public lands falling within the limits of 40 miles' (the place or granted limits) as designated on such map. This order took effect April 22d, 1872, on which day it was received at the local land office.

The land in dispute is conterminous with the general route of the railroad as indicated by the above map.

On the 11th day of June, 1873, the railroad company having previously filed a map of the definite location of its line from the Red River of the North to the Missouri river in Dakota territory, the General Land Office transmitted to the local land office a diagram showing the 40 and 50-mile limits of the land grant along that line, and that office was directed 'to withhold from sale or entry all the odd-numbered sections, both surveyed or unsurveyed, falling within those limits, and to hold subject to pre-emption and homestead entry only the even-numbered sections at $2.50 per acre within the 40-mile limits, and $1.25 per acre between the 40 and 50-mile or indemnity limits.' This order was recorded at the local land office June 24th, 1873.

The land in dispute, the finding of facts states, was conterminous with such line of definite location, was more than 40 but within 50 miles of such line, that is, was within the indemnity limits, and was at the date of such location public lands to which the United States had full title, not reserved, sold, granted, or otherwise appropriated, free from pre-emption or other claims or rights, and nonmineral in character.

It may be here observed that the controlling question in this case is whether it was competent for the Secretary of the Interior, upon receiving and approving the map of the definite location of the road, to make the above order of withdrawal in respect of the odd-numbered sections of lands within the indemnity limits, that is , of lands between the 40-mile and 50-mile limits. This question will be adverted to after we shall have stated other facts material in the case.

On or about the 10th day of April, 1882,—the railroad company not having at that time made or attempted to make any selection of lands in the indemnity limits to supply losses in the place limits,—Hewitt, being qualified to acquire and hold lands under the pre-emption laws of the United States, settled upon and improved the lands here in dispute with the intention of entering the same under the provisions of the act of Congress approved September 4th, 1841 (5 Stat. at L. 453, chap. 16), and the acts supplemental thereto and amendatory thereof, authorizing the entry and purchase of public lands by citizens of the United States and by those who declared their intention to become citizens.

The township embracing the land in dispute was surveyed in July, 1882, and the plat of survey was filed in the local land office on the 13th day of October of the same year.

On the 2d day of November, 1882, Hewitt presented to the proper United States local land office a declaratory statement for this land, as provided by law, which was received, filed, and placed upon the records of that office.

On the 19th day of March, 1883, the railroad company filed in the local land office a list of selections of land 'in bulk' embracing the land in dispute, which, as already stated, was within the indemnity limits of the railroad company.

Having from the day of his settlement upon the land until April 4th, 1883, resided upon and cultivated the same as required by law, Hewitt, on the day last named, submitted his final proofs for the land, and duly tendered to the local land office the government's price for it, together with all required fees. But such final proof was rejected, the reason assigned for such rejection being that the land had been withdrawn from entry under the act of July 2d, 1864, granting lands to the Northern Pacific Railroad Company, and the acts of Congress supplemental thereto and amendatory thereof. From that decision Hewitt appealed to the Commissioner of the General Land Office, and on the 5th of October, 1883, that officer affirmed the decision of the local land office.

On the 21st of June, 1884, while Hewitt was in possession,—he had been in actual possession since April 10th, 1882, and had made valuable improvements on the land,—the defendant Emil Schultz (his codefendant being his wife) made a contract with the railroad company, by which the latter agreed, in consideration of $1,200, to sell and convey to the former the land in dispute. Thereupon Schultz entered upon the land, ousting Hewitt from actual possession, and taking up his residence thereon, and cultivating the same. Schultz having paid the above consideration, the railroad company conveyed the land to him. But the conveyance was not made until December 18th, 1889.

Before that conveyance was made, namely, on the 15th day of August, 1887, the Secretary of the Interior revoked the above order withdrawing the odd-numbered sections of the indemnity lands from sale or entry.

Subsequently, October 12th, 1887, the railroad company filed in the local land office a list designating an amount of lands equal to those 'selected' in the list of March 19th, 1883, as having been lost and excepted from the grant, and within its place lands as defined on the map of definite location.

Of the decision of the Commissioner of the General Land Office on the 5th day of October, 1883, Hewitt had no notice whatever until on or about August 1st, 1888. On the latter day he applied for a review by the Commissioner. That review was had with the result that the decision of the local land office against Hewitt was reversed and set aside, his final proofs were admitted, and the selection by the railroad was held for cancelation.

In his opinion delivered September 25th, 1888, the Commissioner said: 'Said tract is within the 50-mile indemnity limit of the withdrawal for the benefit of the Northern Pacific Railroad Company, ordered by letter from this office, dated June 11th, 1873, received at the local land office then at Pembina, June 24th, 1873. The township was surveyed July 12th to 27th, 1882, and the plat of survey was filed in your office on the 13th day of October following; the whole of said section was selected by the agent of the railroad company March 19th, 1883, per list No. 6. . . . The final proof submitted by applicant shows that he is a native-born citizen, over twenty-one years of age, and a qualified pre-emptor, July 10th, 1882; his improvements consisted of a frame house, 16x16 feet, stable 10x12 feet, and 20 acres of ground broken, the value of the same being estimated at $350. This declaratory statement was presented for filing within the time prescribed by law and was accepted by your office, a receipt issuing therefor. Under the late decision of the Hon. Secretary of the Interior in the case of the Northern P. R. Co. v. Miller, 7 Land Dec. 100, it is held that the withdrawal of the indemnity lands for the benefit of said company was prohibited by the 6th section of the granting act, and being in violation of law and without effect, was not operative to defeat the rights of bona fide adverse claimants under the general laws of the United States, who settled on lands within such limits prior to the time when selection by the railroad had been made. In view of the fact that claimant established his actual residence and had permanent improvements upon the land prior to the government survey or selection by the railroad company, his claim was...