McHenry v. Nygaard
| Decision Date | 22 April 1898 |
| Docket Number | 10,871 - (276) |
| Citation | 74 N.W. 1106,72 Minn. 2 |
| Parties | EDWIN H. McHENRY and Another v. LARS O. NYGAARD |
| Court | Minnesota Supreme Court |
Appeal by defendant in an action of ejectment brought against him by Edwin H. McHenry and another, as receivers of the Northern Pacific Railroad Company, from an order of the district court for Otter Tail county, Baxter, J., overruling his demurrer to the complaint. Affirmed.
Public Land -- Decision of Controversy by Secretary of Interior -- Action of Ejectment before Issue of Patent -- Jurisdiction of Court.
In a contest between the Northern Pacific Railroad Company and the defendant as to which was entitled to a tract of land (each claiming under the United States), the secretary of the interior fully and finally decided the controversy, awarding the land to the defendant, to whom a final receiver's certificate was issued, reciting that he was entitled to a patent. In an action of ejectment by the receivers of the railroad company against the defendant, held, that the court had jurisdiction of the subject of the action, and to determine the rights of the respective parties to the land although no patent had been issued.
Public Land -- Indemnity Limits of N.P.R.R. -- Claim of Homestead -- Mere Occupancy -- Necessity of Entry.
Assuming without deciding, that lands within the indemnity limits of the Northern Pacific Railroad Company are subject to homestead entry until actually selected by the company for indemnity purposes, mere occupancy and cultivation by another, without any attempt to comply with the homestead law by applying to enter the land, or by placing the claim on record in the land office, will not defeat the company's right of selection.
Public Land -- Selection by N.P.R.R. -- Refusal by Land Department to Approve -- Effect.
When the company, in accordance with all the requirements of law makes a selection of indemnity lands, and duly files its list of selections, its right to the lands cannot be defeated or affected by the arbitrary and wrongful refusal of the officers of the land department to approve the selections.
John H. Allen and Parsons & Brown, for appellant.
As the patent to the land in controversy had not been issued at the date of the beginning of this action, the question of the title to the land was still within the executive branch of the government, and had not reached that point where the courts could assume cognizance of it; and the court, therefore, has no jurisdiction of the subject of the action. While the question of the right of a party claiming title to lands to which no patent has been issued to bring an action of ejectment in a state court whose system of procedure allows such an action to be brought upon an equitable title does not appear to have been directly passed upon by the United States court, it is nevertheless a fair inference from their many adjudications upon the scope of the powers of the land department that such an action cannot lie until the land department has in regular course completed its duties delegated to it by law, in the matter of transfer of title from the United States. Johnson v. Towsley, 13 Wall. 72; U.S. v. Schurz, 102 U.S. 378; Marquez v. Frisbie, 101 U.S. 473. In this case the title to the land is unquestionably in the United States. Carter v. Ruddy, 166 U.S. 493. It is still within the control of the officers of the land department. Before the issuance of a patent that department may recall and cancel any entries of the public lands. Randall v. Edert, 7 Minn. 359 (450); Judd v. Randall, 36 Minn. 12.
The attempted withdrawal of the land from entry made in January, 1872, was illegal, and without effect, for the provisions of the granting act, so far from authorizing an executive withdrawal of indemnity lands, are an express prohibition upon the power to make such withdrawal. The right of withdrawal under this act is wholly statutory and extended only to the granted or "place" lands. A withdrawal of land for indemnity purposes operates only as a notice of the limits within which the company will be entitled to select indemnity. Northern v. Miller, 7 L.D. 100; Northern v. Fugelli, 10 L.D. 288; Spicer v. Northern, 10 L.D. 440; Northern v. Davis, 19 L.D. 87; Prince v. Eheim, 55 Minn. 36; Buttz v. Northern, 119 U.S. 55, 71; Grandin v. LaBar, 3 N.D. 446.
The granting act excepts from the operation of the grant all "lands which shall have been occupied by homestead settlers or pre-empted" prior to the filing in the land office of the plat of definite location of the road. In this respect it differs from the provisions of other railway granting acts which usually except lands "to which a pre-emption or homestead claim may have attached at the time the line of said road is definitely fixed." Under the granting act to the Northern Pacific Railroad Company, therefore, mere occupation or cultivation of the premises at the time of the filing of the map was sufficient to exclude the tract from the operation of the land grant. As no selection of the lands in controversy had been made by the railroad company at the time of the defendant's settlement thereon, it follows that defendant's settlement and occupancy gave him a right prior to that of the railroad company.
Although as between the beneficiaries of two railway grants a selection is unnecessary where all of the indemnity lands are insufficient in quantity to make up the loss from the granted or place lands (St. Paul v. Northern, 139 U.S. 1), yet where the controversy is between the railway company and settlers a selection is necessary to vest rights. U.S. v. Colton, 146 U.S. 615; Sage v. Swenson, 64 Minn. 517.
Even if defendant's occupancy gave him no rights, such rights fully attached to the land upon his application to enter made in November, 1887. His application to enter the lands, though rejected by the officers of the local land office, preserved his rights as fully as if it had been accepted. Shepley v. Cowan, 91 U.S. 330. The defendant's right to enter was not lost by his failure to make his application within the statutory time after the settlement. Johnson v. Towsley, supra. Defendant made his application immediately upon the revocation by the interior department of the withdrawal of these lands from entry. Until such revocation it would have been useless for him to make application, and he had a reasonable excuse for not complying with the statute in that respect within the case of Cahalan v. McTague, 46 F. 251.
The attempted selection by the railroad company in 1885 was invalid for the reasons: (1) Because the company failed to designate upon its selection list the losses from its grant in lieu of which the selection of the lands in controversy was made; and (2) because it does not appear that the selection was approved by the secretary of the interior. Resser v. Carney, 52 Minn. 397; U.S. v. Missouri, 141 U.S. 358; Grandin v. LaBar, supra.
James B. Kerr and C. W. Bunn, for respondents.
In this state an action to recover real estate may be maintained by one who is the equitable owner, but who has not the legal title. Merrill v. Dearing, 47 Minn. 137. It is also true that one may be the equitable owner of land acquired from the United States before the issuance of a patent. County v. Hunter, 42 Minn. 312.
In this case the railroad company became equitable owner of the land upon filing its selection in the land office, and the secretary of the interior had no authority to refuse to recognize and approve the selection. Southern v. Wiggs, 43 F. 333; Minneapolis v. Duluth, 45 Minn. 104; St. Paul v. Winona, 112 U.S. 720. The equitable title is certainly not in the United States for it has issued its final certificate. A final receipt issued to one who has done all things required by law vests in him full title against the United States. Cornelius v. Kessel, 128 U.S. 456. The decision of the supreme court of the United States in Moore v. Robbins, 96 U.S. 530, is conclusive upon the proposition that, where the secretary of the interior has committed an error of law, and has awarded a tract of land to one party to which another is rightfully entitled, and a receiver's final receipt has issued, the courts will assume jurisdiction before patent and adjust the equities of the parties.
The land department erred in awarding the land to the defendant for the reasons:
(1) Even if the land in question had been subject to homestead entry during the period of its occupation by the defendant, his mere occupation without an entry or an application in the proper land office was not sufficient under the terms of the grant to the company to invalidate the company's selection. 21 U.S. St. 141, § 3; 5 U.S. St. 620, § 3; 5 U.S. St. 457, § 15; Northern v. Colburn, 164 U.S. 383.
(2) The land in question was withdrawn from, and not subject to, homestead entry during the period of the defendant's occupation, and up to the time of the company's selection in 1887, by virtue of the executive order received at the land office at Alexandria January 6, 1872. This withdrawal was confessedly sufficient to prevent the acquisition of any rights by the defendant prior to the selection of the railroad company, June, 1885, if the land department had the same authority to withdraw lands from entry for the benefit of the Northern Pacific Railroad Company which it had in other cases. The general authority of the land department to make such withdrawal has been uniformly sustained. Wolcott v. Des Moines, 5 Wall. 681, 687; Wolsey v. Chapman, 101 U.S. 755; Spencer v. McDougal, 159 U.S. 62; Sage v. Swenson, 64 Minn. 517.
The decision of the secretary of the interior in the case at bar holding the withdrawal for the benefit of the railroad company inoperative to prevent acquisition...
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