Prentice v. Northern Pac R. Co.

• Decision Date: 14 July 1890
• Citation: Prentice v. Northern Pac R. Co., 43 F. 270 (D. Minn. 1890)
• Parties: PRENTICE v. NORTHERN PAC. R. CO. et al.
• Court: U.S. District Court — District of Minnesota

43 F. 270

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

United States Circuit Court, D. Minnesota.

July 14, 1890

At Law.

DEED-- DESCRIPTION.

A deed described the land conveyed as beginning at a certain rock and running thence one mile east, one mile north, one mile west, and one south, to place of beginning; and also stated that it was the land set off to a certain Indian under a treaty with the government. The Indian had previously selected his land as 'a tract one mile square, the exact boundaries of which may be defined when the surveys are made.' After the deed was given, the Indian's land was located and patented so as to include 640 acres not in the form of a square, no part of which lay within the boundaries named in said deed. Held, that the deed, being for a specific tract of land, could not be construed to convey the grantor's interest in the land actually patented to the Indian.

This action having been brought to trial before the court without a jury, which was waived by the parties by a stipulation in writing duly filed with the clerk, the following facts are found by the court:

(1) That the treaty made and concluded on the 30th day of September, A.D. 1854, between the United States and the Chippewa Indians, of Lake Superior and the Mississippi whereby said Indians ceded to the United States certain territory lying adjacent to the headwaters of Lake Superior contained the following provisions, viz.:

'And being desirous to provide for some of his connections, who have rendered his people important services, it is agreed that Chief Buffalo may select one section of land at such place in the ceded territory as he may see fit, which shall be reserved for that purpose, and conveyed by the United States to such person or persons as he may direct.'

(2) That said treaty was ratified, pursuant to a resolution of the United States senate passed on the 10th day of January 1855, by the president of the United States, on the 29th day of January, 1855.

(3) That the said Chief Buffalo, pursuant to said provision of said treaty, and on the day of the date thereof, to-wit, September 30, 1854, by an instrument of writing executed by him and filed in the office of the United States commissioner of Indian affairs at Washington, D.C., selected the land to be conveyed thereunder by the United States, and appointed the persons to whom it was to be conveyed, as follows, viz., after reciting the foregoing provision of the treaty:

'I hereby select a tract of land one mile square, the exact boundary of which may be defined when the surveys are made, lying on the west shore of St. Louis bay, Minnesota territory, immediately above and adjoining Minnesota point; and I direct that patents be issued for the same according to the above-recited provision to Shaw-bwaw-skung, or Benjamin G. Armstrong, my adopted son; to Matthew May-dway-gwon, my nephew; to Joseph May-dway-gwon and Antoine May-dway-gwon, his sons,-- one quarter section to each.'

(4) That said Matthew, Joseph, and Antoine, under date of September 17, 1885, executed and delivered to said Armstrong an instrument assigning to him their right, title, and interest under said appointment and selection of Chief Buffalo.

(5) That said Benjamin G. Armstrong and wife, on September 11, 1856, made, executed, and delivered to the plaintiff herein a deed of conveyance.

(6) That said deed from Armstrong to plaintiff was duly recorded in the county of St. Louis, territory of Minnesota, on the 4th day of November, A.D. 1856.

(7) That the pieces or parcels of land, the title to which is involved in this action, are situated in said county of St. Louis, territory (now state) of Minnesota.

(9) That the tract of land which Chief Buffalo had designated as his selection on the day of the treaty did not correspond with the section lines when the land came to be surveyed into sections; and, furthermore, part of it was found to be occupied and claimed by certain Indian traders under the treaty. After a lengthy correspondence and investigation in the department of the interior, the relatives of Buffalo entitled to the land reserved for them conceded the validity of the claim of these Indian traders, and in lieu of the lands thus held by traders received other lands adjacent to that selected by Buffalo to make up the quantity of 640 acres, but not in the form of a parallelogram, though maintaining a continuous connection.

(11) That the United States government surveys of the lands ceded by said treaty of September 30, 1854, to the United States had not been made at the date of the said deed from Armstrong to plaintiff, and were not made until the year following the date thereof.

(12) That said Armstrong and wife, by warranty deed duly executed and recorded, dated October 22, 1859, conveyed an undivided half of the lands conveyed to him, and the other appointees of Chief Buffalo aforesaid, by the United States, by said patent of October 23, 1858, to Daniel S. Cash and James H. Kelly.

(13) That after said patents were issued to said appointees, as aforesaid, the said Matthew, Joseph, and Antoine, on March 13, 1859, executed deeds of conveyance of the land which had been so patented to them respectively to the said Armstrong, which deeds were duly recorded in said St. Louis county, May 17, 1859; and that the said Armstrong and wife, on the 31st day of August, 1864, for a valuable consideration, executed and delivered their deed of conveyance of an undivided half of the land so patented to him and the said Matthew, Joseph, and Antoine to John M. Gilman, which conveyance was duly recorded in said St. Louis county, September 12, 1864. That said Gilman took said conveyance without any actual notice of said deed from said Armstrong to plaintiff of September 11, 1856, or that plaintiff claimed an interest in the land so conveyed to him, said Gilman.

(14) That the defendants herein claim title to the pieces or parcels of land in controversy as grantees of said Gilman, and under and through said deed to said Gilman of August 31, 1864.

(16) The court further finds that the large stone or rock at the head of St. Louis river bay, nearly adjoining Minnesota point, described in the deed from Armstrong to Prentice in the fifth finding of fact, the beginning of the boundary of the tract conveyed, is well identified, and was generally known to the few people familiar with the place, and is recognizable now. And a mile square measured from that point, as called for in the deed, would wholly depart from the shore of St. Louis bay, and would cover about one-half or three-fifths land, and the remainder the water of Lake Superior.

(17)That the land selected by Buffalo Chief lay upon the shore of St. Louis bay, immediately adjoining Minnesota point; and this selection is followed as near as it could be by the patents of the United States, issued to satisfy that reservation, considering the elimination from the mile square of the lands held by the traders, and the vagueness of Buffalo's description, and the necessity of conforming the final grant to the surveys of the United States.

(18) If the lines of the course called for as east and west, in the deed of Armstrong to Prentice, under which the plaintiff asserts his title, were exactly reversed, the description in that deed would include a large part of the land actually selected by Buffalo Chief, and also included in the patents from the United States; but it would not include the land sued for in this complaint.

(19) That the said instrument executed by the Chief Buffalo dated September 30th, 1854, was the only selection or appointment ever made by Buffalo Chief under the sixth clause of the second article of the said treaty.

(21) That at the date of said deed, September 11, 1856, from Armstrong to Prentice, said Armstrong did not have any interest in land in said St. Louis county, Minnesota Territory, except what he was entitled to under the Buffalo selection and appointment referred to in the third paragraph hereof, and under the assignment from the other appointees of Buffalo.

And the court found the following...