McKenna v. Atherton

Citation160 F. 547
Decision Date01 April 1908
Docket Number213.
PartiesMcKENNA v. ATHERTON.
CourtUnited States District Courts. 8th Circuit. Northern District of Iowa

This suit was commenced July 25, 1901, to require defendant to convey to complainant the legal title to the E. 1/2 of the N.E. 1/4 of section No. 11, Tp. 96, R. 42, in O'Brien county, this state, which it is alleged the defendant holds in trust for complainant. The land is a part of that granted by the act of Congress approved May 12, 1864, c. 84, 13 Stat 72, to the state of Iowa, to aid in the construction of railroads in that state, and was patented to the state for the benefit of the Sioux City & St. Paul Railroad Company but never patented to that company because of its failure to complete the road as required by the act of Congress. After the decision of the Supreme Court in Sioux City & St Paul R.R. co. v. United States, 159 U.S. 349, 16 Sup.Ct 17, 40 L.Ed. 177, and following the order of the Land Department of November 18, 1895, restoring so much of said lands as were not patented to the company, to public entry, the complainant made application to the local land office to enter the northeast quarter of section No. 11, as a homestead, and tendered the requisite fees therefor. He also made application to purchase it under the act of March 3, 1887, c. 376, 24 Stat. 556 (U.S. Comp. St. 1901, p. 1595). The defendant Atherton also made application to enter the east half of the northeast quarter, the land in suit, as a homestead; also to purchase it under the act of March 3, 1887. Upon a hearing of the respective claims so presented, it appeared from the testimony before the local land office that complainant in 1883, the land being then unoccupied and unimproved, made application to enter the northeast quarter of section No. 11 as a homestead, he being then qualified to enter it as such, which application was rejected. In February, 1884, the land remaining unoccupied and unimproved complainant moved onto the northeast quarter intending to establish title to it as a homestead, built a house and barn upon the westerly part of the quarter section, and in 1884, 1885, and 1886, broke and cultivated the land to crops, 60 acres thereof being upon the east half of the quarter section. In March, 1887, C. W. Toothaker came upon the east half of the quarter section and commenced plowing on McKenna's plowing. McKenna asked him by what authority he came upon the land, and Toothaker answered that he had bought it from the railroad company and was going to hold it with McKenna's plowing. McKenna told him that he regarded the claim under the railroad company as invalid, and ordered him off the premises. After some words both withdrew, and went to cropping different parts of the land. In May, 1887, while McKenna was sowing on the east half of the northeast quarter, Toothaker came and commenced breaking thereon, and was again ordered off by McKenna. Toothaker came again in a day or two and sowed a couple of times across the field with millet seed and went away. McKenna sowed the land to flax and harvested the crop that year. Toothaker continued to harass McKenna by coming upon the land, threatening to take his crops, and to purchase the whole quarter section from the railroad company. Toothaker's claim rested upon a contract made by him with the Sioux City Railroad Company, March 19, 1887, for the purchase of the east half of the quarter section.

His interference with McKenna continued until May 17th, when they made an agreement whereby McKenna was to lease from Toothaker all of the land broken on the east half of the quarter section prior to March, 1887, Toothaker to retain possession of the entire 80-acre tract after September 17, 1887. In February, 1887, an agent of the railroad company at Sheldon in O'Brien county, wanted McKenna to help sell the railroad lands for the company, and promised him that if he would stay at Sheldon and have nothing to do with the squatters, and try to sell the lands, he would sell to him the whole northeast quarter of the section for $1,000, if he (McKenna) would accept the offer that evening. McKenna the next morning concluded to accept the offer, but the agent then refused to sell to him because he had not accepted the evening before. Following this the sheriff began evicting settlers from the railroad lands, and, to save trouble, McKenna concluded to purchase the west half of the northeast quarter, the east half having been sold, but the agent refused to sell him that 80 acres unless he would relinquish his right to the east 80 to Toothaker, which McKenna refused to do. The agent then sent one John Harkins to McKenna to advise him to make the relinquishment, which Harkins told McKenna was in a lawyer's office at Sheldon. After an hour or more of persuasion McKenna yielded, went to Sheldon, signed the relinquishment, and got from the agent a contract for the west half of the quarter section. Toothaker then erected a line fence between the east and west 80, thus cutting McKenna off from possession of the east half of the quarter section, and since then McKenna, to avoid trouble, has not cultivated any of his breaking on that 80. Following these transactions McKenna in July, 1887, wrote the Commissioner of the General Land Office stating in a general way the facts as above stated, and asked if by buying from the company he was barred from homesteading the land, and if the 'speculator' Toothaker could compel him to give up possession of that part of the land; and whether or not he had forfeited any of his rights to any of the land by what he had done. The Commissioner replied, in substance, that if his statements were true he had forfeited none of his rights, and that in the event of the restoration of the land to public entry he, as an actual settler, would have the preference right of entry. McKenna has continued to reside on the west half of the northeast quarter since he settled there in 1884, claiming the entire quarter section as a homestead, but has not cultivated the east half of the quarter since he was barred therefrom as above stated. The defendant Atherton is the mother-in-law of Toothaker, is a widow, and has resided with Toothaker since 1883, on the northwest quarter of section No. 12, adjoining the land in suit, which he owned. June 27, 1891, Toothaker assigned his contract for the purchase of the east half of the northeast quarter to her for the expressed consideration of $1,000, upon which she claims to have paid more than $600. She has not cultivated the land or made any improvements since her purchase, but has rented it out to others. In October, 1895, she was absent visiting a sister, when she received a telegram from Toothaker to come home. She returned on October 25th, found a house on the land moved there by Toothaker in her absence from his home place, and was told by him to go on to the land and live there, which she did. For this house she says that she agreed to pay Toothaker $200, but the testimony of other witnesses is that it was a dilapidated summer kitchen, worth only $20 to $25. When she moved into the house McKenna gave her verbal notice to quit, and she said, in substance, that she wished Toothaker would send for her, that she did not know what she was kept there for. Upon this testimony the local land office rejected the claim of complainant, and awarded the east half of the northeast quarter of the section to Mrs. Atherton, under the act of March 3, 1887, as a bona fide...

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6 cases
  • Wolbol v. Steinhoff
    • United States
    • Wyoming Supreme Court
    • 1 November 1917
    ...Association, 142 U.S. 211, 35 L. D. 974; Love v. Flahive, 33 Mont. 348, 83 P. 882, 205 U.S. 195, 51 L.Ed. 768, 206 U.S. 356; McKenna v. Atherton, 160 F. 547; Ayres v. U. S. 42 Court of Claims, 385; v. U. S. 175 F. 514; Forman v. Healey, 121 N.W. 1122; Greenmayer v. Coate, 212 U.S. 434, 435,......
  • Gamble v. Emery
    • United States
    • Oklahoma Supreme Court
    • 31 July 1923
    ...decision of the land department is correct, and this presumption will obtain until it has been overcome in the manner indicated. McKenna v. Atherton, 160 F. 547; James et al. v. Germania Iron Co., 107 F. 597; Thomas v. Glenn et al., 51 Okla. 755, 762, 150 P. 887, 889. ¶3 Section 300, Compil......
  • Ross v. Wright
    • United States
    • Oklahoma Supreme Court
    • 20 June 1911
    ...decision of the land department is correct, and this presumption will obtain until it has been overcome in the manner indicated. McKenna v. Atherton, 160 F. 547; James et al. v. Germania Iron Co., 107 F. 597; Durango Land & Coal Co. v. Evans et al., 80 F. 425. ¶6 The syllabus in the case of......
  • Ross v. Wright
    • United States
    • Oklahoma Supreme Court
    • 27 June 1911
    ... ... Department is correct, and this presumption will obtain until ... it has been overcome in the manner indicated. McKenna v ... Atherton (C. C.) 160 F. 547; James et al. v ... Germania Iron Co., 107 F. 597, 46 C. C. A. 476; ... Durango Land & Coal Co. v. Evans et ... ...
  • Request a trial to view additional results

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