Kinney v. Degman

• Decision Date: 05 January 1882
• Citation: 11 N.W. 318,12 Neb. 237
• Parties: CHARLES S. KINNEY, PLAINTIFF IN ERROR, v. JOHN S. DEGMAN, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

11 N.W. 318

12 Neb. 237

CHARLES S. KINNEY, PLAINTIFF IN ERROR, v. JOHN S. DEGMAN, DEFENDANT IN ERROR

Supreme Court of Nebraska

January 5, 1882

ERROR to the district court for Colfax county. Tried below before POST, J.

AFFIRMED.

Phelps & Thomas, for plaintiff in error.

Russell & Chambers, for defendant in error.

LAKE CH. J. MAXWELL, J., dissented.

OPINION

LAKE, CH. J.

This controversy concerns the ownership of a quantity of corn grown in 1879 upon the east half of the northwest quarter of section thirty-two, township eighteen, range four, in Colfax county. This tract is claimed by both of these parties--by the former under the pre-emption, and by the latter under the homestead law of the United States. The action was replevin.

The agreed statement of facts on which the case was tried below shows that for several months prior, and up to February 17th 1879, Kinney had claimed the tract under the timber culture law of congress, when his claim, for some reason undisclosed, was "cancelled." That while he was so claiming the land, he broke several acres, including that portion on which the corn in question was raised, and made other valuable improvements, of which there was a dwelling house, stable and corn crib, and during the year 1879 was residing thereon with his family.

Upon the cancellation of his timber culture claim, Kinney sought to hold it by pre-emption, and with that view offered to the register and receiver of the proper land office his declaratory statement, which these officers, on the 19th day of February, 1879, rejected. From this decision against his effort to pre-empt, Kinney took an appeal, which, at the time of the trial of this case in the court below, was still pending before the Secretary of the Interior in Washington. It is admitted that, personally, Kinney was "a qualified pre-emptor."

On the other hand, it appears that Degman, who, in the spring of 1879, ploughed the ground and planted the corn, and also cultivated and cared for it "until maturity," bases his claim to the land upon "a homestead receipt," or certificate issued to him by the receiver of said land office, on the 20th of February, 1879, which is still "uncanceled." And, in addition to this, it is agreed "that on or about the 13th and 14th days of October, 1879, the said Kinney, by his agent, gathered and removed from said premises the said six acres of corn, during the absence, and without the knowledge or consent, of said plaintiff." That said corn was of the value of $ 44.70, and its return was duly demanded before the commencement of the action.

With these facts before him, we are of opinion that the district judge rightly ruled that Degman was the owner of the corn which he had raised, and entitled to recover. Kinney's alleged timber culture claim was cancelled. And, no appeal having been taken, the entire justness...