Peyton v. Desmond
Decision Date | 15 February 1904 |
Docket Number | 1,878. |
Citation | 129 F. 1 |
Parties | PEYTON et al. v. DESMOND. |
Court | U.S. Court of Appeals — Eighth Circuit |
This action was brought in the Circuit Court of the United States for the District of Minnesota, Fifth Division, December 29 1898, by George E. Desmond, a citizen of Wisconsin, against Hamilton M. Peyton and Levi A. Barber, citizens of Minnesota and residents of the Fifth Division of the Minnesota District. The complaint alleged that the plaintiff made homestead settlement in 1890 upon a stated quarter section of public land in Wisconsin, containing merchantable pine timber aggregating 3,600,000 feet, board measure; that continuously thereafter he resided upon and occupied the land, and obtained a United States patent therefor May 16, 1898, by full and regular compliance with the homestead law; that in the winter of 1893 and 1894 while he was in possession of the land under his homestead claim, the defendants 'wrongfully and unlawfully and forcibly entered upon' the land, and cut therefrom all the pine timber; that they thereafter carried off and removed all of this timber, and sawed the same into lumber, and thereafter, and before the issuance of the patent to plaintiff, sold and disposed of the lumber; that the acts of the defendants were done and performed with full knowledge of the rights of the plaintiff to the timber, and against his protest; that the value of the timber prior to the cutting of the trees was $4 per thousand feet, board measure, and after being sawed into lumber was $12 per thousand feet, board measure. Judgment was prayed for $43,200, the value of the lumber, with interest. The case was soon brought to issue but a trial was not had until October, 1902, when a verdict was returned for plaintiff in the sum of $9,425, with interest, for which judgment was given against defendants. No objection was made to the jurisdiction until immediately preceding the trial, when defendants moved that the action be dismissed for the reason, as then asserted by them, that it was one for trespass to realty in Wisconsin, and was therefore local, and not within the jurisdiction of the court below. The action upon this motion was as follows:
Other rulings at the trial were to the effect that the title obtained by plaintiff, by his compliance with the homestead law, and by the issuance to him of the patent for the land, related back so as to enable him to maintain this action.
The evidence showed that plaintiff and one Benjamin F. Judd settled upon the land prior to the passage of the land grant forfeiture act of September 29, 1890, c. 1040, Sec. 2, 26 Stat. 496 (U.S. Comp. St. 1901, p. 1599), under which the land was restored to the public domain; that each claimed to have settled with a view to obtaining title under the homestead laws of the United States; that each claimed to be the prior settler, and each presented in due time at the local land office an application to make homestead entry, but the application of Judd, being presented first, was allowed by the local land officers, and that of the plaintiff rejected; that a contest, based upon plaintiff's claim of prior settlement, was then commenced in the local land office by plaintiff against Judd's entry, the proceedings in which resulted in a decision by the Secretary of the Interior against the plaintiff, January 7, 1893; that Judd on July 17, 1893, commuted his homestead entry, and obtained a patent certificate, but no patent was ever issued to him; that plaintiff on October 9, 1893, or possibly when Judd submitted final proof upon his entry, instituted in the local land office further contest proceedings against Judd's entry, which resulted in a decision by the Secretary of the Interior May 23, 1896 (Desmond v. Judd, 22 Land Dec.Dep.Int. 619), declaring that Judd had not in good faith maintained his residence on the land as required by the homestead law, and directing the cancellation of his entry; that, following this decision, plaintiff made final homestead entry of the land, under the statute requiring five years' residence, and under that entry obtained a United States patent May 16, 1898; that in the meantime, on October 11, 1893, the lands were conveyed by Judd to defendants; that defendants had knowledge of, and participated in, the contest proceedings in the Land Department which resulted in the cancellation of Judd's entry; and that the cutting and conversion of the timber by defendants occurred in the winter of 1893 and 1894, while the contest proceedings last named were pending.
Arthur H. Crassweller (Frank Crassweller, on the brief), for plaintiffs in error.
C. D. O'Brien and P. H. Seymour, on the brief), for defendant in error.
Before SANBORN, THAYER, and VAN DEVANTER, Circuit Judges.
VAN DEVANTER, Circuit Judge, after stating the case as above, .
By the common law of England, an action for the recovery of damages for injury to land is local, and can be brought only where the land is situated. This is the law in most of the states of the Union. 1 Chitty, Pl. 281; Shipman Com. L. Pl. (2d Ed.) 201, 383; Cooley on Torts, 471; Livingston v Jefferson, 15 Fed.Cas. 660, No. 8,411; McKenna v. Fisk, 1 How. 241, 11 L.Ed. 117; Ellenwood v. Marietta Chair Co., 158 U.S. 105, 15 Sup.Ct. 771, 39 L.Ed. 913. The operation of this common-law rule has been much restricted by legislation in England (British South Africa Co. v. Companhia de Mocambique (1893) App. Cas. 602) and in some of the states (15 Fed.Cas. 665, note; Genin v. Grier, 10 Ohio, 209, 214). There are other states in which the rule never prevailed. Holmes v. Barclay, 4 La.Ann. 63. The matter is essentially one of state policy or local law. As was said by Mr. Justice Gray in Huntington v. Attrill, 146 U.S. 657, 669, 13 Sup.Ct. 224, 36 L.Ed. 1123:
In Minnesota an action for pecuniary damages for trespass to real estate in another state is viewed, not as relating to the real estate, but only as affording a personal remedy. It is there deemed to be transitory in nature, and not local. In Little v. Chicago, etc., Railway Co., 65 Minn. 48, 67 N.W. 846, 33 L.R.A. 423, 60 Am.St.Rep. 421, the Supreme Court of that state, in sustaining the jurisdiction of the courts of the state over an action brought to recover damages for injuries to real estate situated in Wisconsin, said:
By the existing judiciary act (Act Aug. 13, 1888, c. 866, Sec. 1, 25 Stat. 433 (U.S. Comp. St. 1901, p. 508)) it is declared:
'That the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars and * * * in which there shall be a controversy between citizens of different states, * * * but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. * * * '
This action presents a controversy between citizens of different states, and was brought in the district and division of the residence of the defendants. It is of a civil nature, is a common-law action, and the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000. Being also an action which is cognizable in the courts of the state, as before shown, it is equally within the concurrent cognizance of the Circuit Court of the United States, within that state. It was said by Mr. Justice Field in Gaines v. Fuentes, 92 U.S. 10, 18, 20, 23 L.Ed. 524, in referring to the jurisdiction of the federal courts of suits at common law or in equity in which there is a controversy between citizens of different states:
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