Spencer v. Dougal

• Decision Date: 03 June 1895
• Docket Number: No. 245,245
• Citation: 159 U.S. 62,15 S.Ct. 1026,40 L.Ed. 76
• Parties: SPENCER v. McDOUGAL
• Court: U.S. Supreme Court

159 U.S. 62

15 S.Ct. 1026

40 L.Ed. 76

SPENCER

v McDOUGAL.

No. 245.

June 3, 1895.

Edwin H. Abbot, Louis D. Brandies, and W. F. Vilas, for plaintiff in error.

Geo. G. Greene, A. T. Britton, and A. B. Browne, for defendant in error.

Mr. Justice BREWER delivered the opinion of the court.

This was an action of ejectment brought by the plaintiff in error, plaintiff below, in the circuit court of the United States for the Western district of Wisconsin, to recover possession of the E. 1/2 of the S. W. 1/4 and the E. 1/2 of the N. W. 1/4 of section No. 7 in township No. 47 N., of range No. 4 W., in the county of Ashland and state of Wisconsin.

The land, found by the jury to be worth $16,000, is situated within the limits of the city of Ashland, more than 6 and less than 10 miles from the Bayfield Branch of the Chicago, St. Paul, Minneapolis & Omaha Railroad Company, and also within 10 miles of the Wisconsin Central Railroad Company. The title of the plaintiff rests upon an agreement between the two railroad companies settling all differences between themselves as to the lands within the place limits of each road, a patent from the state of Wisconsin to the Omaha Company in pursuance of such agreement, and a deed from the latter to himself.

The same questions arise in this case as in that just decided (Railroad Co. v. Forsythe, 15 Sup. 1020); and it is unnecessary to enter into any detailed statement of the facts concerning the two land grants, or a discussion of the question arising thereon. Obviously, as the land in controversy was within the place limits of each road, it either passed of the questions arising thereon. Obviously, moieties to the two, and in the latter event the agreement referred to transferred all rights to the Omaha Company.

As against this, the defendant offered evidence that on May 3, 1858, and June 16, 1858, respectively, two pre-emption declaratory statements were filed in the local land office,—one in respect to one-half of the tract, and the other in respect to the remainder,—and contends that up to those dates there had been no valid withdrawal of any lands by the land department, and, as a consequence, that these pre-emption claims attached to the land, and excluded it from the operation of the grant. It may be remarked, in passing, that it does not appear that any attempt was ever made to prove up or acquire title under and in accordance with these declaratory statements. But the contention is that by the simple filing of the statements the land was excluded from the operation of the grant made by either act.

We are unable to assent to this contention. On May 29, 1856, the commissioner of the general land office telegraphed to the local land officers of the district in which the land is situated to suspend from sale and location all lands in the district. This was prior to the passage of the act of 1856. On June 12th, nine days after its passage, the commissioner wrote to the same officers, referring to his telegraphic dispatch, and...