Prentice v. Stearns

• Decision Date: 24 June 1884
• Citation: Prentice v. Stearns, 20 F. 819 (D. Minn. 1884)
• Parties: PRENTICE v. STEARNS and others.
• Court: U.S. District Court — District of Minnesota

20 F. 819

PRENTICE v. STEARNS and others.

United States Circuit Court, D. Minnesota.

June 24, 1884

Rea Kitchell & Shaw, C. K. Davis, and J. W. Willis, for plaintiff.

O. P Stearns, per se; Gordon E. Cole, John M. Gilman, and W. W Bilson, for defendants.

MILLER Justice.

This is an action for ejectment for land in the city of Duluth. The contest arises out of the reservation or stipulation in the treaty of the thirtieth of September, 1854, between the Chippewa Indians and the United States. That stipulation declares that Buffalo, one of the chiefs of the tribe, should be authorized to designate some of his relatives who had supported him, who should receive a section of land. It seems that Buffalo, on the day of the making of the treaty, and, of course, before it was ratified by the United States, made an attempt, both to appoint persons who should receive the land, who should be beneficiaries of the donation, if you should call it a donation, or of the reservation, if you should call it a reservation, (I do not think it is material which,) and to designate the land which he assigned to them, which was as follows:

'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 provisions, to Shaw-bwaw-shung, or Benjamin G. Armstrong, my adopted son, 'and then to the nephew, whose name is given, and to his two sons,'-- one quarter section to each.'

One of the questions that arises is whether that was a valid selection,-- a valid exercise of the power of selection and appointment by Buffalo under that treaty. The treaty was afterwards ratified without qualification in regard to this particular. We are of opinion that, so far as the appointment of the persons to receive this land is concerned, it was a valid appointment; and the right, so far as it could then vest, was vested by that paper in Benjamin Armstrong, and in the other beneficiaries who have conveyed their interest in said land to Benjamin Armstrong, and he has received the patent from the United States for the land under that treaty. Buffalo died before anything was done in the matter. Armstrong undertook to convey to Frederick Prentice, the plaintiff in the action, an undivided one-half of the section of land which had been selected by Buffalo. The United States afterwards, coming through the land-office and interior department, to execute this treaty by making a deed of a section of land, found a difficulty in locating it under Buffalo's directions. I do not know whether the difficulty was insuperable; probably it was. It was easy to see that a large discretion was left in the officers of the United States, because both the treaty and Buffalo's directions say, 'the boundary of which may be defined when the surveys are made. ' It was therefore dependent upon future surveys, whether that meant regular congressional surveys of land for public purposes, or whether it meant a special survey of the land of Buffalo's selection. And the same question goes back to the treaty, whether Buffalo was to select a section after these surveys were made, or whether he was to select the amount of a section, which is a square mile. These are questions which are not easy to solve, neither is it necessary to do so. In either event we think that the treaty was valid, and we think that the patent which the United States, after encountering these difficulties, made to Armstrong of certain parts of sections regularly surveyed, as found in the congressional plats and surveys of the United States, was a valid execution of the treaty. And as the patent issued to Armstrong under that selection of the United States, and as appears by the correspondence accepted by Armstrong, we are of the opinion that the treaty was fully executed between Armstrong and the United States, and was valid as to them.

Now, that presents the main question in this case; and that question is, whether Armstrong made such a conveyance to Prentice of the undivided one-half of any particular piece of land, or of the interest which he had acquired by what had taken place, so that Prentice could recover this specific piece of land in ejectment. That is the main question, and the one upon which we feel ourselves compelled to decide this case.

It will be remembered that the deed from Armstrong to Prentice was made on the eleventh of September, 1856, two years after the treaty was made,-- after Buffalo had made Armstrong the appointee of what he was to receive from the government, and after he had made his attempt at the selection of the...