Northern Pac. R. Co. v. Amacker

• Decision Date: 14 November 1892
• Citation: 53 F. 48
• Parties: NORTHERN PAC. R. CO. v. AMACKER et al.
• Court: U.S. District Court — District of Montana

53 F. 48

NORTHERN PAC. R. CO. v. AMACKER et al.

United States Circuit Court, D. Montana.

November 14, 1892

F. M Dudley and W. E. Cullen, for plaintiff.

Thos C. Bach and Massena Bullard, for defendants.

KNOWLES District Judge.

This is an action in the nature of ejectment, brought by plaintiff to recover from defendants the possession of the S. 1-2 of the N.W. 1-4 of section 17, in township 10 N., range 3 W. of the principal meridian of Montana. Plaintiff alleges that it is the owner in fee simple of said land; that defendants have ousted and ejected it therefrom, and withhold the possession thereof from it. Defendants, in their answer, deny the allegations of ownership of said lands set forth in the complaint, and those concerning the ouster of plaintiff, but admit that they are in possession of the same, and are holding the same against plaintiff. The evidence in this case fully establishes as a fact that plaintiff received from the United States, in 1864, a grant of all odd sections of public land not mineral, to the amount of 20 odd sections per mile on each side of said plaintiff's railroad line which it should establish through the territory of Montana, and whenever the United States should have full title to the same, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of said road should be definitely fixed and a plat thereof filed in the office of the commissioner of the general land office; that plaintiff accepted the grant, and constructed the road named in the act making the same; that the land in dispute is an odd section within 40 miles of the definite line of said road, fixed as required by said act.

In October, 1868, one William M. Scott, it appears, filed in the United States land office at Helena, Mont., his declaratory statement to the effect that it was his intention to claim the said tract of land as a pre-emption right under the provisions of the act of congress of September, 1841. In 1869 he built a cabin on the same, and lived there until the fall of that year, when he left the same, and moved to the city or town of Helena, where he lived until 1878, when he removed to Butte, Mont. He never returned to said land after leaving the same, and never subsequently exercised any acts of ownership over the same. Helena is but a short distance from where this land is situate,-- less than three miles.

On May 3, 1872, William McLean filed an application in the United States land office at Helena, Mont., to enter the same as a part of his homestead claim. It does not appear as to whether or not he ever resided upon said land, or ever made any improvements upon the same. On December 1, 1874, the commissioner of the general land office wrote to the register and receiver of the United States land office at Helena Mont., informing them that this homestead entry of McLean's, with others, was held for cancellation, on the ground that the same was made subsequent to the time at which the right of the Northern Pacific Railroad Company attached to the same as a part of an odd section within their grant, and directing them to serve notice upon McLean to show cause why it should not be canceled. It appears that the general route of the Northern Pacific Railroad opposite to the land in dispute was located about February 1, 1872. Whether any notice was served, or anything further done at that time, does not appear. On the 3d day of July, 1879, the register and receiver of the said Helena land office, the same being J. H. Moe and F. P. Sterling, respectively, wrote to the commissioner of the general land office the following letter:

'We have the honor to report that June 2nd, 1879, the applicants to the following homestead entries were duly notified in accordance with your circular of December 20th, 1873, to show cause within thirty days from date of said notice why their entries should not be canceled, and up to this date no action has been taken: * * * No. 819, William McLean, W. 1-2, N.W. 1-4, S.E. 1-4, N.W. 1-4, and S.W. 1-4, N.E. 1-4, of sec. 17, 10 N., 3 W., made May 3d, 1872. We would respectfully recommend that these homestead entries be canceled.'

On September 11, 1879, the acting commissioner of the general land office wrote to the register and receiver of the Helena land office the following official letter: 'I am in receipt of your letters of June 4th and July 3d last, stating that the applicants in the following homestead entries were duly notified, in accordance with the circular of December 20th, 1873, to show cause why their entries should not be canceled, and that no action had been taken by them, and recommending for cancellation the said entries, viz.: * * * No. 819, made May 3d, 1872, by William McLean, W. 1-2, N.W. 1-4, S.E. 1-4, N.W. 104, and S.W. 1-4, N.E. 1-4, sec. 17, 10 N., R. 3 W. * * * In view of the fact that the above entries were held for cancellation in Nov. and Dec., 1874, and of the further facts that the parties have allowed the limitation provided by statute to expire without making final proof as required, and have failed to establish their claims after due notice given, the said entries are hereby canceled.'

The inference from these letters is that, as a fact, there had been no cancellation of McLean's entry until this letter of September 11th.

On July 2, 1882, the definite route of plaintiff's road was fixed opposite to where this land was located, and a plat thereof filed with the commissioner of the general land office. In August, 1882, William McLean died. On or about the 15th day of March, 1883, Maria McLean, as the widow of William McLean, made her application to enter said land, stating in the same that she applies to perfect the said homestead entry made by her husband on the 3d day of May, 1872, and that her claim thereto is based upon the second section of the act of congress approved June 15, 1880, and section 2291 of the Revised Statutes of the United States. Plaintiff contested this application. On the 20th day of February, 1885, the commissioner of the general land office sustained the application of the said Maria McLean. Plaintiff appealed from this decision to the secretary of the interior. On March 28, 1887, H. L. Muldrow, as acting secretary of the general land office, and the application of Maria McLean was again sustained, and a patent to said land awarded her.

The provisions of the United States statutes considered in deciding this question are as follows:

Act of April 21, 1876:

'That all pre-emption and homestead entries, or entries in compliance with any law of the United States, of the public lands, made in good faith, by actual settlers, upon tracts of land of not more than one hundred and sixty acres each, within the limits of any land grant, prior to the time when notice of the withdrawal of the lands embraced in such grant was received at the local land office of the district in which such lands are situated, or after their restoration to market by order of the general land office, and where the pre-emption and homestead laws have been complied with, and proper proofs thereof have been made by the parties holding such tracts or parcels, they shall be confirmed, and patents for the same shall issue to the parties entitled thereto.'

Sec. 2. That when at the time of such withdrawal as aforesaid valid pre-emption or homestead claims existed upon any lands within the limits of any such grants, which afterwards were abandoned, and under the decisions and rulings of the land department were re-entered by pre-emption or homestead claimants who have complied with the laws governing pre-emption or homestead entries, and shall make the proper proofs required under such laws, such entries shall be deemed valid, and patents shall issue therefor to the person entitled thereto.'

See Supplement to the Revised Statutes of the United States, p. 99. Section 3 of said act refers to entries made subsequent to the expiration of a land grant, and has no reference to any such question as is presented in this case. The notice of the withdrawal of the lands, at the time of the fixing of the general route of plaintiff's road, from sale, entry, or pre-emption, by the commissioner of the general land office, was filed in the local land office at Helena, Mont., on May 6, 1872.

Section 2, Act 1880, is as follows:

'That persons who have heretofore under any of the homestead laws entered lands properly subject to such entry, or persons to whom the right of those having so entered for homesteads may have been attempted to be transferred by bona fide instrument in writing, may entitle themselves to said lands by paying the government price therefor, and in no case less than one dollar and twenty-five cents per acre; and the amount heretofore paid the government upon said lands shall be taken as part payment of said price; provided, this shall in no wise interfere with the rights or claims of others who may have subsequently entered such lands under the homestead laws.' 21 St.U.S. 238.

Under the issues presented in this case, the burden of proof was cast upon plaintiff, and it must rely on the strength of its own title. The grant to the Northern Pacific Railroad Company was one in praesenti, and conveyed to it the legal title to all odd sections of public land, not mineral, on each side of the line of its road as definitely fixed, to the extent of 20 sections, in Montana, it then being a territory, or, in all 40 sections per mile, whenever the United States should have full title thereto, and they were not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claim or right, at the time the route of its road should be definitely fixed, and a plat...