Milner v. United States

• Decision Date: 15 November 1915
• Docket Number: 4454.
• Citation: 228 F. 431
• Parties: MILNER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

228 F. 431

MILNER et al. v. UNITED STATES.

No. 4454.

United States Court of Appeals, Eighth Circuit.

November 15, 1915

H. C Edwards, of Salt Lake City, Utah, for appellants.

William W. Ray, U.S. Atty., of Salt Lake City, Utah (David S. Cook Asst. U.S. Atty., of Salt Lake City, Utah, on the brief), for the United States.

Before CARLAND, Circuit Judge, and AMIDON and VAN VALKENBURGH District Judges.

CARLAND Circuit Judge.

This is an action by appellee to quiet the title to 5,564.28 acres of land situated in the county of Carbon, state of Utah. It is claimed by appellee that whatever apparent interest appellants have in the land was obtained by fraud, with the exception of Peter N. Campbell, who claims to have a lien by mortgage. Appellee was granted the relief prayed for in the court below, and appellants appeal.

Before proceeding to discuss the questions involved on this appeal it is proper to state that by sections 8 and 12 of the act of Congress approved July 16, 1894 (28 Stat. 109), there was granted to the state of Utah in the form of what is generally known as a 'floating grant,' many thousands of acres of land for the purpose of erecting an agricultural college, a school of mines, and a deaf and dumb asylum. Such lands were to be selected by the state from the unappropriated public lands of the United States in such manner as the Legislature thereof should provide, with the approval of the Secretary of the Interior. In 1896 the Legislature of Utah created a board of land commissioners and gave to it the control and management of the lands so granted. Laws Utah 1896, c. 80. The board was also empowered to select and register such lands, and after this was done it was its duty to take such action as was necessary to secure the approval of the Secretary of the Interior and a final transfer of said selected lands to the state.

Between December 10, 1900, and September 14, 1903, appellants Stanley B. Milner, Truth A. Milner, Harley O. Milner, and Samuel H. Gilson made application to said board of land commissioners to purchase the land involved in this action. The application to purchase by Truth A. Milner, who was the wife of Stanley B. Milner, was made by said Stanley B. Milner as the agent of his wife. The application to purchase made by Harley O. Milner was made by Stanley B. Milner as agent. The following is the form of the application to purchase made in each instance by the appellants:

'Agreement to Purchase Selected Lands.

'County of Salt Lake, State of Utah-- ss.:

'Personally appeared before me, a notary public in and for Salt Lake county, Utah, Truth A. Milner, by S. B. Milner, Agt., of Salt Lake City, Utah, well known to me, who, being first duly sworn according to law, deposes and says

that he hereby makes application to the state board of land commissioners for the selection by the state of the following described grazing lands (name the class):

No. Acres 320 N1/2

Sec. Tp. R. S. L. M. 26 12 S 11 E in satisfaction of any grant to the State.

'That he is a native-born citizen of the United States, over the age of 21 years, and that he has not purchased from the state of Utah, under the provisions of the land laws, more than four sections of grazing lands, or 320 acres of arid lands, or 160 acres of any other one class not named, together with the land now applied for; that he hereby agrees to purchase said land upon the following conditions:

'1. That after said lands shall have been selected by the state of Utah and a patent therefor has been issued to the state by the authorized officers of the United States, affiant will purchase the land at private sale at the rate of one dollar and 50 cents per acre on ten years' time, in accordance with the provisions of the law governing land sales.

'2. The sum of 80 dollars and . . . cents, being 25 cents per acre for the land embraced in the application, is herewith deposited with the state board of land commissioners to be applied as first payment on such land after the same shall have been patented to the state.

'3. That if the said land shall hereafter be determined to be mineral in character, or if any person other than the state shall be determined to have a superior right or claim to said land, then, in either of said events, the state of Utah shall be released from all obligations under this agreement.

'4. That he will not remove any timber from said land until he has executed to the state a bond conditioned that he will pay the full contract price for said land according to the terms of sale.

'5. That the state of Utah, by its proper officers, will agree to select said land in satisfaction of any of the government grants to the state in accordance with the laws of Utah, and, when so selected and patented to the state, will sell to affiant the same at private sale, for $1.50 per acre.

'Truth A. Milner, 'By S. B. Milner, Agent.

'Subscribed and sworn to before me this 17th day of April, 1901.

'(Seal)

Ellridge L. Thomas, Notary Public. ' 'Salt Lake City, Utah, Apr. 22, 1901.

'The state of Utah hereby agrees to the foregoing conditions, and the order for said selection is hereby made and approved.

'By order of State Board of Land Commissioners. Byron Groo, Secretary.'

Each one of these applications was accompanied by an affidavit of each applicant, or his or her agent, of the tenor and effect following:

'State of Utah, County of Salt Lake-- ss:

'April 18, 1901.

'S. B. Milner, Agent, being duly sworn according to law, deposes and says that he is the identical person who made application to select the land described in the agreement, of which this is a part, and who proposes to purchase the said land from the state of Utah; that he is well acquainted with the character of said described land, and with each and every legal subdivision thereof, having frequently passed over the same; that his personal knowledge of said land is such as to enable him to testify understandingly with regard thereto; that there is not, to his knowledge, within the limits thereof, any vein or lode of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, or copper, or any deposit of coal; that there is not within the limits of said land, to his knowledge, any placer, cement, gravel, or other valuable mineral deposit; that no portion of said land is claimed for mining purposes, under the local customs or rules of miners or otherwise; that no portion of said land is worked for mineral during any part of the year by any person or persons; that said land is essentially nonmineral land; and that his application therefor is not made for the purpose of fraudulently obtaining title to mineral land, but with the object of securing said land for agricultural purposes.

S. B. Milner, Agent.

'Subscribed and sworn to before me this 18th day of April, 1901.

'(Seal)

Ellridge L. Thomas, Notary Public.'

The board of land commissioners appointed Heber M. Wells and Byron Groo, who were respectively the president and secretary of said board, as selecting agents for the state. When a list of lands had been selected, these selecting agents filed it in the United States local land office at Salt Lake City, Utah. Said list was accompanied by the joint affidavit of said Heber M. Wells and Byron Groo of the tenor and effect following:

'State of Utah, County of Salt Lake-- ss.:

'We, Heber M. Wells and Byron Groo, authorized agents of the state board of land commissioners of the state of Utah, being first duly sworn, depose and say that the foregoing list of lands, hereby selected, is a correct list of a portion of the public lands selected by the state of Utah, under section 12 of an act of Congress entitled 'An act to enable the people of Utah to form a Constitution and state government, and to be admitted into the Union on an equal footing with the original states,' approved July 16, 1894; that all of the said lands are vacant, unappropriated, and are not interdicted, mineral, nor reserved lands, and are of the character contemplated by the grant in said act; that we have caused the lands mentioned to be carefully examined by agents and employes of the state as to their mineral or agricultural character; that there is not, to our knowledge, within the limits thereof, any vein or lode of quartz or other rock in place, bearing gold, silver, cinnabar, lead, tin, or copper, or any deposit of coal; that there is not within the limits of said land, to our knowledge, any placer, cement, gravel, or other valuable mineral deposit; that no portion of said land is claimed for mining purposes under the local customs, or rules of miners, or otherwise; that no portion of said land is worked for mineral during any part of the year by any person or persons; that said land is essentially nonmineral land, and that our application therefor is not made for the purpose of fraudulently obtaining title to mineral land, but with the object of securing said land for agricultural purposes, and the above and foregoing statements as to the character of said land apply to each and every legal subdivision thereof; that the said selections and those pending, together with those approved, do not exceed the total amount granted to the state for the purpose named. 'that the land contains no salt spring or deposits of salt in any form sufficient

Heber M. Wells, to render it valuable therefor. Byron Groo,

'Agents for the State Board of Land Commissioners.

'Subscribed and sworn to before me this 15th day of September, 1903.

'Ellridge L. Thomas, Notary Public.'

After the list of selected lands was filed in the local United States land office, the register and receiver of said land office made a certificate as follows:

'United States Land...