Small v. Rakestraw

• Decision Date: 16 June 1903
• Citation: 72 P. 746,28 Mont. 413
• Parties: SMALL v. RAKESTRAW.
• Court: Montana Supreme Court

72 P. 746

28 Mont. 413

SMALL v. RAKESTRAW.

Supreme Court of Montana

June 16, 1903

Commissioners' Opinion. Appeal from District Court, Flathead County; D. F Smith, Judge.

Action by Walter W. Small against Samuel O. Rakestraw. Judgment for defendant. Plaintiff appeals. Affirmed.

Foot & Pomeroy, for appellant.

CALLAWAY C.

On demurrer to complaint. The substance of the complaint is that in a contest for a tract of land between the plaintiff here, Walter W. Small, and the defendant here, Samuel O Rakestraw, before the Land Department, the Secretary of the Interior erroneously decided in favor of Rakestraw, and that had it not been for the wrongful acts of the defendant, and the erroneous ruling of the Secretary, patent for the land would have issued to plaintiff. The prayer of the complaint is that the defendant shall be decreed to hold the title to the land in trust for the plaintiff, and convey it to him. To this complaint the defendant interposed a demurrer, alleging that "the court has no jurisdiction of the cause, or the subject-matter thereof," and that the complaint does not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and, the plaintiff refusing to amend, judgment was entered for defendant for costs. From this judgment, the plaintiff appeals.

Plaintiff alleges that he settled upon the land in controversy during the latter part of the year 1886, and resided thereon continuously until after he submitted final proof upon his homestead claim to the Land Department. The lands became subject to entry on August 16, 1891, under the laws of the United States, and on the day following the plaintiff entered the same under the homestead law, and on January 26, 1892, made final proof in furtherance of such entry. March 26, 1892, Rakestraw filed an affidavit of contest against appellant's homestead entry, charging that Small had failed to comply with the United States law as to residence. The hearing was had before the register and receiver of the local land office, which resulted in favor of Rakestraw. Small thereupon appealed to the Commissioner of the General Land Office, who found in his favor, and ordered the contest dismissed. Rakestraw then appealed to the Secretary of the Interior, who reversed the decision of the Commissioner, and ordered Small's homestead entry canceled. In giving his opinion, the Secretary said: "Plaintiff filed his affidavit of contest against the defendant's homestead entry, charging that the entryman had failed to comply with the law as to residence. The testimony of Small himself is that he never voted in the precinct in which his homestead entry lies, but did vote at other points, a long distance from his homestead, at least twice during the time he claims he was seeking to maintain residence upon the land. He runs a carpenter shop in town, and, to use his own words, 'determined to return to the ranch only often enough to keep a good showing of habitation.' His excuse for that was that the plaintiff threatened him with violence if he undertook to stay on the land. Without passing upon any other question, it is enough to say that a residence for voting purposes in another precinct from the land precludes an entryman from claiming residence at the same time on the land for homestead purposes. George v. Barnes, 4 L. D. 62; Hart v. McHugh, 17 L. D. 176; Edwards v. Ford and O'Connor, decided June 18, 1894."

Plaintiff contends that, in saying "a residence for voting purposes in another precinct from the land precludes the entryman from claiming residence at the same time on the land for homestead purposes," the Secretary committed such "a gross mistake and misapplication and misconstruction of the law" as brings this case within the rule that whenever it is made to appear to a court of equity that the officers of the Land Department have issued a patent to the wrong person by reason of a mistaken application of the law to the facts in the case, the court will, in a proper proceeding, interfere, and control the determination of the department so as to secure the just rights of the parties injuriously affected. In coming to his determination as to the plaintiff's residence upon the land, and the bona fides of his settlement thereon, the Secretary passed upon questions of fact, whereof he was the exclusive judge, in the absence of fraud or imposition, and neither is shown in this case.

Plaintiff says that the Secretary was in error in drawing a conclusive presumption of abandonment from the fact that plaintiff voted in Granite and Bonner, precincts other than the one in which his homestead claim was. Granite is in another county. What other evidence touching the question of plaintiff's residence for voting purposes may have been before the Secretary, we do not know, as it does not appear from the complaint that the only facts before him on that subject were those relating to plaintiff's voting at Granite and Bonner. The question of residence is one of fact. McHarry v. Stewart (Cal.) 35 P. 141; Stewart v McHarry, 159 U.S. 643, 16 S.Ct. 117, 40 L.Ed. 290. From the facts before him, the Secretary decided that the plaintiff had not resided upon his homestead continuously for the five years prior to January 26, 1892. On the contrary, he found that the plaintiff had established a residence elsewhere for voting purposes during that time. And we think the Secretary's statement that "a residence for voting purposes in another precinct from the land precludes an entry, man from claiming residence at the same time on the land for homestead purposes" is correct. Whether the Secretary erred in his finding upon the facts submitted to him is immaterial in this...