Rasmus Svor v. Catherine Morris

• Decision Date: 24 February 1913
• Docket Number: No. 756,756
• Citation: 33 S.Ct. 385,57 L.Ed. 623,227 U.S. 524
• Parties: RASMUS K. SVOR, Plff. in Err., v. CATHERINE M. MORRIS
• Court: U.S. Supreme Court

227 U.S. 524

33 S.Ct. 385

57 L.Ed. 623

RASMUS K. SVOR, Plff. in Err.,

v CATHERINE M. MORRIS.

No. 756.

Submitted January 6, 1913.

Decided February 24, 1913.

Mr. C. A. Fosnes for plaintiff in error.

Mr. Owen Morris for defendant in error.

Mr. Justice Van Devanter delivered the opinion of the court:

This case presents a controversy over one of the quarters of an odd-numbered section within the indemnity limits of the railroad land grant of July 4, 1866, to the state of Minnesota, which the state transferred to the Hastings & Dakota Railway Company. 14 Stat. at L. 87, chap. 168. The trial court gave judgment for the plaintiff, which was affirmed by the supreme court of the state (118 Minn. 344, 136 N. W. 852), and the defendant prosecutes this writ of error.

The facts material to the controversy are these: In 1883, after the completion of the road, the railway company filed in the local land office an indemnity selection of the tract in controversy, but neglected to comply with an existing regulation requiring that the selection be accompanied by a designation of the loss in the place limits in lieu of which the selection was made. Report Com'r G. L. O. 1879, p. 128, rule V. The selection was rejected by the local officers, but remained pending on successive appeals to the Commissioner of the General Land Office and the Secretary of the Interior until October 23, 1891, when it was finally rejected by the latter because of that irregularity. Six days later Russell Sage, trustee, to whom the rights of the railway company under the land grant had then been assigned, filed another indemnity selection of the same tract, accompanied by a proper designation of the loss in lieu of which the selection was made, and in that connection claimed and alleged that the tract was then vacant and unappropriated. March 29, 1897, this selection was approved by the Secretary of the Interior, and the tract was certified under the grant, the certification being treated as the equivalent of a patent. 14 Stat. at L. 97, chap. 183. The plaintiff subsequently acquired the right and title of Sage, trustee, to the tract, but did so with full notice and knowledge of the occupancy and claim of the defendant.

In 1885 the defendant applied at the local land office to make a homestead entry of the tract, and the application was denied, the circumstances being such that it could not be allowed. In 1888, while the selection of 1883 was pending, he settled upon the tract with the purpose of acquiring the title by compliance with the homestead law, and continuously thereafter resided upon the tract, occupied, improved, and cultivated it, all the time asserting a claim under that law. The improvements which he made exceeded $2,000 in value, and the area which he reduced to cultivation exceeded 100 acres. Being continuous, his occupancy and claim covered the interim between the final rejection of the first indemnity selection and the filing of the second one, but he did not again apply at the local office to make a homestead entry until 1904, which was after the tract had passed beyond the jurisdiction of the Land Department by the certification under the land grant. At the time of his settlement, and continuously thereafter, he possessed all the qualifications requisite to acquire the title as a homestead claimant.

The plaintiff's title receives no support from the indemnity selection of 1883, for, as has been seen, it did not conform to the existing regulations in an essential particular, and was finally rejected, October 23, 1891, for that reason And to avoid an extended statement and discussion respecting an indemnity withdrawal made in 1868 and still another claim to the tract, both of which were terminated on or shortly before October 23, 1891 (see H. R. Ex. Doc. 246, 50th Cong., 1st Sess.; 26 Stat. at L. 496, chap. 1040, § 4, U. S. Comp. Stat. 1901, p. 1598; Re St. Paul & S. C. R. Co. 12 Land Dec. 541; St. Paul M. & M. R. Co. v. Hastings & D. R. Co. 13 Land Dec. 440), it will be assumed, without so deciding, that the defendant's claim receives no support from what he did anterior to that date.

Following the final rejection of the first selection there was an interval of six days in which the land was not only free from any claim under the land grant, but open to settlement under the homestead law. So, apart from the defendant's earlier efforts, there can be no doubt that by his residence and occupancy during that interval he initiated and acquired a homestead right. He was not disqualified by reason of what he had done before, and, of course, it was not necessary that he should go through the idle ceremony of vacating the land and then settling upon it anew. This is the view uniformly applied in the Land Department. Gentral P. R. Co. v. Doll, 8 Land Dec. 355; La Bar v. Northern P. R. Co. 17 Land Dec. 406; Vanderberg v. Hastings & D. R. Co. 26 Land Dec. 390. See also Moss v. Dowman, 176 U. S. 413, 44 L. ed. 526, 20 Sup. Ct. Rep. 429. The second selection came after this homestead right had attached, and therefore was subordinate to it. In its facts the case is like Sjoli v. Dreschel, 199 U. S. 564, 50 L. ed. 311, 26 Sup. Ct. Rep. 154, and Osborn v. Froyseth, 216 U. S. 571, 54 L. ed. 619, 30 Sup. Ct. Rep. 420, and unlike Weyerhaeuser v. Hoyt, 219 U. S. 380, 55 L. ed. 258, 31 Sup. Ct. Rep. 300, and Northern P. R. Co. v. Wass, 219 U. S. 426, 55 L. ed. 280, 31 Sup. Ct. Rep. 321, and yet is within the principle recognized and enforced in each; viz., that, as...