Puget Mill Co. v. Brown

• Decision Date: 14 November 1893
• Docket Number: 107.
• Citation: 59 F. 35
• Parties: PUGET MILL CO. v. BROWN et al.
• Court: U.S. Court of Appeals — Ninth Circuit

59 F. 35

PUGET MILL CO. v. BROWN et al.

No. 107.

United States Court of Appeals, Ninth Circuit.

November 14, 1893

E. C Hughes, (Hughes, Hastings & Stedman, H. G. Struve, and Maurice McMicken, on the brief,) for appellant.

J. A Stratton, (Stratton, Lewis & Gilman, on the brief,) for appellees.

Before McKENNA and GILBERT, Circuit Judges, and HAWLEY, District Judge.

McKENNA Circuit Judge.

This action was brought primarily for the purpose of enjoining defendants from cutting timber on the land in controversy. After the filing of the original bill, a patent was issued to defendants, and the bill was amended to show the fact, and prayed that defendants be adjudged to hold the title for plaintiff. Both parties claim under the United States, and the case was submitted on an agreed statement of facts.

The plaintiff's title is based upon a cash entry made at Olympia land office February 10, 1885, pursuant to the second section of the act of congress entitled 'An act relating to the public lands of the United States,' approved June 15, 1880, (21 Stat. 238,) which reads as follows:

'That persons who have heretofore under any of the homestead laws entered land 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 instruments 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.'

This entry was based on an entry made in the name of Susan King in the month of January, 1876, as the widow of a soldier entitled to an additional homestead under sections 2304 and 2306, Rev. St.; the latter enabling any one who had entered under the former less than 160 acres to enter as much more as would not exceed 160 acres. The entry was made in accordance with the custom and practice of the land office, which was well known. In pursuance of such custom and practice, plaintiff agreed with the parties claiming to act for said Susan King to purchase the rights of said Susan King, and to pay therefor, upon the entry of said land, and the execution of a deed to plaintiff, the sum of $500, which was a fair market value of said land, and was paid on the execution of the deed, 'and without any knowledge or notice of any fraud, irregularity, or illegality in the aforesaid alleged scrip or in the aforesaid entry.'

In the application to enter the land, Susan King was described as the widow of Joshua King, deceased. Subsequently the department of the interior received the following letter:

'In reply to yours of the 2nd inst., would say that I homesteaded northwest of southeast, section 7, township 9 north, range 22 west, Johnson county, Arkansas, containing forty (40) acres, as the deed from the land office at Washington City, as well as the county records, will show. My husband, John Wesley King, did not serve in the U.S. army during the late war.

[Signed]

'Susan King.'

On the 16th of January, 1885, the commissioner of the general land office sent the following letter to the register and receiver at Olympia:

'Gentlemen: Soldier's additional homestead entry 2410, final 577, dated February 10th, 1876, is in the name of Susan King, widow of Joshua S. King, deceased, and is held for cancellation as illegal and fraudulent, for the reason that Susan King, who made the original homestead entry upon which said additional homestead entry is based, informed me, in a letter dated 27th ulto., that her deceased husband was not named Joshua S. King, but was named John Wesley King, and that he never served in the U.S. army during the recent Rebellion. You will inform all parties in interest of this letter, and that 60 days from receipt of notice of same will

...