King v. McAndrews

Decision Date03 November 1900
Citation104 F. 430
PartiesKING v. McANDREWS et al.
CourtU.S. District Court — District of South Dakota

S. H Wright, for plaintiff.

John D Rivers, for defendants.

CARLAND District Judge.

This is an action of ejectment brought by plaintiff against defendants to recover possession of lots 3 and 4, and the S.E. 1/4 of the S.W. 1/4 of section 10, all in township 104 range 71 W., Brule county, S.D. The case was tried at the present term of the court, and a verdict directed for defendants. On the trial the plaintiff, to establish his title to the demanded premises, offered in evidence a patent from the United States dated July 26, 1899, conveying lots Nos. 3 and 4, and the S.E. 1/4 of the S.W. 1/4 of section 10 and lot No. 1 of section 15, in township 104 No., of range 71 W. Brule county, S.D. containing 112 acres and 30/100 of an acre, to one Henry J. King, plaintiff's grantor. The offer of the patent in evidence was objected to by counsel for defendants for the reason that said patent was void on its face. The court sustained the objection, and excluded the patent from evidence. This ruling of the court is alleged to be erroneous, and because thereof a new trial is asked. It was not claimed by counsel for defendants at the trial that the patent, by reason of its recitals alone, was null and void, but that, taken in connection with matters concerning which the court would take judicial notice, it conclusively appeared that the land department had no power to issue the same. In Burfenning v. Railroad Co., 163 U.S. 323, 16 Sup.Ct. 1018, 41 L.Ed. 175, the supreme court said:

'But it is also equally true that when, by act of congress, a tract of land has been reserved from homestead and pre-emption, or dedicated to any special purpose, proceedings in the land department in defiance of such reservation or education, although culminating in a patent, transfer no title, and may be challenged in an action at law. In other words, the action of the land department cannot override the expressed will of congress, or convey away public lands in disregard or defiance thereof.'

Smelting Co. v. Kemp, 104 U.S. 636, 26 L.Ed. 875; Wright v. Roseberry, 121 U.S. 488, 519, 7 Sup.Ct. 985, 30 L.Ed. 1039; Doolan v. Carr, 125 U.S. 618, 8 Sup.Ct. 1228, 31 L.Ed. 844; Davis' Adm'r v.

Weibbold, 139 U.S. 507, 11 Sup.Ct. 628, 35 L.Ed. 238; Knight v. Land Ass'n, 142 U.S. 161, 12 Sup.Ct. 258, 35 L.Ed. 974; In re Moore, 27 Land Dec.Dep.Int. 488.

In Morton v. Nebraska, 21 Wall. 660, 22 L.Ed. 639, the supreme court said:

'It does not strengthen the case of the plaintiffs that they obtained certificates of entry, and that patents were subsequently issued on these certificates. It has been repeatedly decided by this court that patents for lands which have been previously granted, reserved from sale, or appropriated are void. The executive officers have no authority to issue a patent of the lands in controversy, because they were not subject to entry, having been previously reserved, and this want of power may be proved by defendant in an action at law.'

The issuing of a patent for public lands is a ministerial act, which must be performed according to law, and, when issued upon appropriated lands, is without authority of law and void. Deweese v. Reinhard, 165 U.S. 386, 17 Sup.Ct. 340, 41 L.Ed. 757; U.S. v. Stone, 2 Wall. 525, 17 L.Ed. 765; Riley v. Welles, 154 U.S. 578, 14 Sup.Ct. 1166, 19 L.Ed. 648; U.S. v. Carpenter, 111 U.S. 347, 4 Sup.Ct. 435, 28 L.Ed. 451; Chotard v. Pope, 12 Wheat. 586, 6 L.Ed. 737; Railroad Co. v. Colburn, 164 U.S. 383, 17 Sup.Ct. 98, 41 L.Ed. 479; Railway Co. v. Forsythe, 159 U.S. 46, 15 Sup.Ct. 1020, 40 L.Ed. 71.

Section 1 of the act to incorporate the city of Chamberlain, in the county of Brule, S.D., passed by the legislative assembly of the territory of Dakota in 1883, is as follows:

'Section 1. That all that part of the county of Brule in the territory of Dakota described as follows, to wit: Beginning at a point where American creek empties into the Missouri river, thence easterly along the various courses of said American creek to the quarter section line in section 15, township 104, range 71, thence south on said line to the quarter corner between sections 15 and 22, thence in a westerly direction on said line between said sections 15 and 22, and also between sections 16 and 21, 64 chains and 78 links, thence south 20 chains, thence west to the Missouri river, and thence northeasterly along the various courses of said river to the place of beginning, is declared to be a city, and the inhabitants thereof are constituted a body corporate and politic with perpetual succession under the name of the city of Chamberlain, and by that name shall have power to sue and be sued, to make all contracts necessary to the exercise of its corporate power, to purchase, hold, lease, transfer and convey real and personal property for the use of said city, to have and use a corporate seal and change the same as pleasure, and to exercise all the rights and privileges pertaining to a municipal corporation.'

Section 1 of 'An act to amend an act entitled 'An act to incorporate the city of Chamberlain,'' passed by the legislative assembly of the territory of Dakota on March 7, 1885, is as follows:

'Section 1. That section 1 of said act be and the same is hereby amended as follows: That the corporate limits of said city of Chamberlain be and the same are hereby extended to brace and include within the limits of said city of Chamberlain, all of section number 15, also the south half of section number 10, all in township 104 north of range 71.'

The land in question is a portion of the land described in the patent to King, and is also included in the description of land contained in the act of March 7, 1885. Up to this point it appears that the land described in the patent is within the corporate limits of the city of Chamberlain, and it is claimed by counsel for defendants that for this reason the land department had no authority to entertain a homestead entry which resulted in the patent, and no authority to issue the patent. The land department, proceeding on the theory that, if the land described in the patent was within the corporate limits of the city of Chamberlain, the entry which resulted in the patent should be canceled, decided that the act of the legislative assembly of the territory of Dakota dated March 7, 1885, was null and void, for the reason that the land described by the act was at the date of its passage within the exterior boundaries of the Great Sioux Indian reservation. City of Chamberlain v. King, 24 Land Dec.Dep.Int. 526. The patent, so far as its admission in evidence on the trail is concerned, must stand or fall upon the recitals contained therein, and those matters of which the court will take judicial notice. The court, from the act of congress of March 2, 1889 (25 Stat. 888), and the proclamations of the president of the United States dated February 10, 1890, and December 5, 1894, will take judicial notice that the land in controversy was on March 7, 1885, within the exterior boundaries of the Great Sioux Indian reservation. It also appears from the act of congress and the proclamations of the president of the United States hereinbefore mentioned that a large portion of the Great Sioux Indian reservation, including the lands in question, was on the 10th day of February, 1890, restored to the public domain, so far as the Indians were concerned. It also appears from the proclamation of the president of the United States dated December 5, 1894, that a particular tract of land, including the land in controversy, was not restored to the public domain until April 15, 1895, at which time it is conceded that King made homestead entry at the local land office at Chamberlain, S.D., for the land for which he received patent. It appears from the act of congress of March 2, 1889, and the proclamations hereinbefore mentioned, that the Chicago, Milwaukee & St. Paul Railway Company, by an agreement with the Sioux Indians, had the right to perfect title to a tract of country including the lands in question, after the Indian title had been extinguished by the proclamation of February 10, 1890, and that said railroad company having failed to perform the conditions upon which it should have title to the tract of land described in the proclamation of December 5, 1894, the same was by said proclamation restored to public domain. It thus appears that the proceedings which resulted in the patent to King for the land in question were initiated long after the act of March 7, 1885, amending the act incorporating the city of Chamberlain. Assuming for the present that, during the time between the entry at the local land office and the issuance of the patent to King for the land in question, lands within the limits of an incorporated town were not subject to entry, was the act of March 7, 1885, void and inoperative by reason of the fact that the land described therein was within the boundaries and a part of the Great Sioux Reservation? The land department held that the act was void. What authority the land department possesses to annul the act of the state or territorial legislature is not apparent. It has generally been supposed that that power either rested in congress or the courts. Section 6 of the act to provide a temporary government for the territory of Dakota, approved March 2, 1861, provided 'that the legislative power of the territory shall extend to all rightful subjects of legislation consistent with the constitution of the United States and the provisions of this act, but no law shall be passed interfering with the primary disposal of the soil. ' Neither this act, the treaty with the Sioux Indians concluded...

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5 cases
  • King v. McAndrews
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 28, 1901
    ...a motion for a new trial of this action, in which he stated the reasons which led him to his conclusions, and this opinion is published in 104 F. 430. SANBORN and THAYER, Circuit Judges, and ADAMS, District Judge. SANBORN, Circuit Judge, after stating the case as above, . The only complaint......
  • State v. Lohnes
    • United States
    • United States State Supreme Court of North Dakota
    • February 18, 1955
    ...States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419; Lebo v. Griffith, supra (42 S.D. 198, 173 N.W. 840); King v. McAndrews, supra, C.C., 104 F. 430; State ex rel. Tompton v. Denoyer, 6 N.D. 586, 72 N.W. 1014; State ex rel. Baker v. Mountrail County, 28 N.D. 389, 149 N.W. 120; Porter v. Hall, ......
  • Sanford v. King
    • United States
    • Supreme Court of South Dakota
    • April 5, 1905
    ...103 N.W. 28 19 S.D. 334 SANFORD, City Mayor, et al. v. KING et al. Supreme Court of South DakotaApril 5, 1905 .          Appeal. from Circuit Court, Brule County. . .          Action. by James W. Sanford, mayor of the city of Chamberlain, as. trustee for M. McAndrews and others, against Henry J. King. and others. From an order sustaining a demurrer to the. complaint, plaintiffs appeal. Affirmed. . .          John D. Rivers, for appellants. S. H. Wright, J. E. House, and A. B. Chubbuck, for respondents Henry J. King, Eliza Reynolds, and. Frank ......
  • Anderson v. Brule County
    • United States
    • Supreme Court of South Dakota
    • June 11, 1940
    ...propositions. Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419; Lebo v. Griffith, supra; King v. McAndrews, supra, C.C., 104 F. 430; State ex Tompton et al. v. Denoyer et al., 6 N.D. 586, 72 N.W. 1014; State ex rel. Baker v. Mountrail County, 28 N.D. 389, 149 N.W. 120; Port......
  • Request a trial to view additional results

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