Harvey v. Holles

• Citation: 160 F. 531
• Decision Date: 01 April 1908
• Docket Number: 255.
• Parties: HARVEY v. HOLLES.
• Court: U.S. District Court — Northern District of Iowa

160 F. 531

HARVEY v. HOLLES.

No. 255.

United States Circuit Court, N.D. Iowa, Western Division.

April 1, 1908

M. B Davis, for complainant.

W. P Briggs, for defendant.

REED District Judge.

The land is a part of that granted to the state of Iowa by the act of Congress approved May 12, 1864, c. 84, 13 Stat. 72, to aid in the construction of two railroads in that state, one of which was to be from Sioux City to the south line of the state of Minnesota. The state, by act of its General Assembly approved April 3, 1866, accepted the grant, and conferred upon the Sioux City & St. Paul Railroad Company, an Iowa corporation (hereinafter called the Sioux City Company), a part of the land in consideration of its constructing the road from Sioux City to the Minnesota line, a distance of some 83 miles. That company accepted the grant and filed a map of definite location of the road with the Secretary of the Interior July 16, 1872, and commenced the construction of the road, and in the same year completed 56.25 miles thereof from the south line of the state of Minnesota (where it connects with a road from Minneapolis and St. Paul) to Le mars in the direction of Sioux City, but never completed it to Sioux City. The Secretary of the Interior instead of issuing patents for the land upon certificates of the Governor of the state, showing the proper construction of completed sections of 10 consecutive miles each of the road as required by the act of May 12th, issued to the state between October 16, 1872, and June 4, 1877, for the benefit of the Sioux City Company, patents for 407,870.21 acres of public land, including the land in controversy within the limits of said grant.

Of this amount the state issued patents to the company for 322,412.80 acres, leaving 85,457.41 acres so patented to the state, including the land in suit, no part of which was ever patented to the company. The road not having been completed, as required by the act of Congress, the state, by act of its General Assembly approved March 16, 1872, resumed all of the lands not earned by the company, and in 1884 relinquished its right, title, and interest therein, except to the lands in Dickinson and O'Brien counties, to the United States. The Sioux City Company claimed all of the lands patented to the state for its use, notwithstanding the resumption and relinquishment thereof to the United States as stated. October 4, 1889, the United States pursuant to the adjustment act of Congress approved March 3, 1887, (24 Stat. 556, c. 376 (U.S. Comp. St. 1901, p. 1595)), brought suit against the Sioux City Company to quiet in the United States the title to the lands so patented to the state and not patented to the company in which suit it was finally decided by the Supreme Court, October 21, 1895, 'that, in any view that could be taken of the company's rights, it had received some 2,005 acres of land more than it was entitled to receive for the road actually constructed by it'; and quieted the title in the United States to all of the lands not patented to the company. Sioux City & St. Paul Ry. Co. v. United States, 159 U.S. 349, 16 Sup.Ct. 17, 40 L.Ed. 177. The legislation of Congress and of the state of Iowa, relative to said grant is set forth at some length in the opinion of the court in that case, and in Knepper v. Sands, 194 U.S. 476, 24 Sup.Ct. 744, 48 L.Ed. 1083. It is also referred to in Sioux City & St. Paul R.R. Co. v. Chicago, Milwaukee & St. Paul Ry. Co., 117 U.S. 406, 6 Sup.Ct. 790, 29 L.Ed. 928, and reference is made to those cases for a full statement of such legislation and other record facts relevant thereto, which need not be further set forth here. After the decision of the Supreme Court in Sioux City & St. Paul Company v. United States, 159 U.S. 349, 16 Sup.Ct. 17, 40 L.Ed. 177, and on November 18, 1895, the Secretary of the Interior issued an order declaring the lands to which the title was so quieted in the United States restored to the public domain, and subject to disposal by the Land Department of the United States, and canceled all prior claims thereto, but reserved the right of prior claimants to present new applications therefor to the local land office upon a day to be fixed by that office, public notice of which it was required to give; and in case of conflicting claims to any of the lands directed that office to proceed in accordance with the rules of practice in contest cases. Pursuant to that order the local land office on November 27, 1895, fixed February 27, 1896, as the date upon which said lands would be open to public entry, and gave the required notice thereof. It also gave public notice to all claimants to any of said lands under the act of Congress of March 3, 1887, to file notice in that office of their intention to so claim the same on or before said February 27, 1896. The land in suit is a part of the 85,407.21 acres so patented by the United States to the state of Iowa for the benefit of the Sioux City Company, and not patented by the state to that company, and is within the overlapping or common indemnity limits of the Sioux City Company and the Chicago, Milwaukee & St. Paul Railway Company (the successor in interest of the McGregor Western Railroad Company, one of the beneficiaries under the grant of May 12, 1864), and after the decision of the Supreme Court, March 29, 1886, in the suit between those companies, which was commenced April 7, 1879 (117 U.S. 406, 6 Sup.Ct. 790, 29 L.Ed. 928) it was allotted to the Sioux City Company in the division of the lands between them.

It is the N. 1/2 S.W. 1/4 Sec. No. 29, Tp. 95, R. 42, in O'Brien county, and is opposite to or co-terminous with the fourth section of 10 consecutive miles of constructed road southerly from the Minnesota state line.

In the spring of 1884, the land being then unoccupied, and never having been cultivated, or improved, Simon Powers moved upon it with his family, erected small buildings thereon, and continued to reside upon and cultivate it until he sold it in 1888, as hereinafter stated. June 25, 1887, after the partition of the lands between the two railroad companies as decreed in the suit between them (117 U.S. 406, 6 Sup.Ct. 790, 29 L.Ed. 928), he made a contract with the Sioux City Company for its purchase, agreeing to pay therefor $15.50 per acre, or $1,080, which was its then fair market value. He paid $40 upon the purchase price, and afterwards paid to that company other amounts required by his contract. December 7, 1888, he sold the land, and assigned his contract of purchase to Rasmus Larson for $400 and delivered possession to him. Larson also assumed the amount due upon the contract with the railroad company, entered at once upon the land, made substantial improvements thereon, and continued to farm and cultivate the whole thereof until September 24, 1894. On that date Larson sold the land, and assigned the contract of purchase to the defendant Holles for $600, who in addition assumed the amount owing to the Sioux City Company, which was then estimated to be $1,050. Defendant at once took possession of the land, has ever since continued to farm and cultivate the same, and has paid all required taxes thereon. In 1895, he built a house on the land, and continued to reside thereon till the fall of 1901, except for a short time in the winter of 1895-6, when he moved off temporarily, intending to return, which he did in February, 1896, and made other permanent and substantial improvements upon it. The possession of the land by Powers, Larson, and the defendant has been open, continuous, and uninterrupted since June 25, 1887, under claim of right. January 15, 1896, defendant filed in the local land office notice of his claim to the land under the adjustment act of March 3, 1887, and caused it to be published as required by the order of that office. When defendant purchased the land he was a citizen of the United States, and was then and still is duly qualified to enter and hold the land under the homestead laws of the United States. February 8, 1896, complainant went upon the southeast corner of the south half of the quarter section-- the tract immediately south of the land in suit-- and erected thereon a small building of the value of $15. It was not habitable, and he never occupied it or settled upon the land. June 25, 1887, Thomas Barry contracted with the Sioux City Company for the purchase of this south half of the quarter section, and at once took possession and remained in actual possession thereof until after February 8, 1896.

Complainant erected the structure upon that land without the knowledge or consent of either Barry or this defendant, and without permission of any one. He knew at such time that Barry had for many years been in the actual possession thereof, and that defendant and his grantors had for many years been in actual possession of the land in suit; and that defendant and Barry then claimed the land occupied by them respectively and the right to the possession thereof, under their contracts of purchase from the Sioux City Company, and the adjustment act of March 3, 1887. Barry, upon learning of complainant's acts in entering and building upon the land, brought an action of forcible entry and detainer against him under the Iowa statute, and upon a trial thereof judgment was entered ejecting complainant, and removing his building from the land, after which he never returned to that tract, and has never been in possession of the land in suit or any part thereof. February 12, 1896, complainant made application to the local land office to enter the land in suit as a homestead, which application was on that date rejected, and he was notified of his right of appeal, which he never prosecuted. February 27th following he tendered a homestead...