Tarpey v. Andrew Madsen

• Decision Date: 21 May 1900
• Docket Number: No. 119,119
• Citation: 20 S.Ct. 849,178 U.S. 215,44 L.Ed. 1042
• Parties: D. P. TARPEY, Plff. in Err. , v. ANDREW MADSEN
• Court: U.S. Supreme Court

178 U.S. 215

20 S.Ct. 849

44 L.Ed. 1042

D. P. TARPEY, Plff. in Err.,

v ANDREW MADSEN.

No. 119.

Argued January 25, 26, 1900.

Decided May 21, 1900.

This case comes on error to the supreme court of the state of Utah, and involves the title to the S. W. 1/4 of section 29, township 11 north, of range 2 west. This tract is within the place limits of the grant to the Central Pacific Railroad of California. The map of definite location of that part of the road opposite this land was filed and approved by the Secretary of the Interior on October 20, 1868, and the entire road was constructed and accepted prior to 1870. The land is not mineral nor swamp land, nor was it returned or denominated as such; was agricultural in character; and at the date of the filing of the map of definite location there was nowhere any record evidence of a private claim. At that time no local land office had been established in the district in which this land is situated. Such office was opened some time in April or May, 1869.

On May 29, 1869, this declaratory statement was filed:

Declaratory statement for cases where the lands areno t subject to private entry.

I, Moroni Olney, of Box Elder county, Utah territory, being a citizen of the United States and the head of a family, have on the 23d day of April, 1869, settled and improved the S. W. 1/4 of section 29, township 11 north, of range 2 west, in the district of lands subject to sale at the land office in Salt Lake City, Utah, and containing 160 acres, which land has not yet been offered at public sale, and thus rendered subject to private entry, and I do hereby declare my intention to claim said tract of land as a pre-emption right under the provisions of said act of 4th September, 1841.

Given under my hand this 29th day of May, 1869.

(Signed) Moroni Olney.

In the presence of——

Abraham Hunsaker.

Nothing further was done by Olney. He abandoned the land, and nothing appears to have been heard of him since the date of the entry. On June 20, 1896, Andrew Madsen, the defendant in error, who alleged that he had been a settler and in occupation of the tract since 1888, filed a homestead entry thereof in the local office. A contest had previously and in 1893 been instituted between the railroad company and Madsen, which was heard and decided by the register and receiver, whose decision was affirmed by the Commissioner of the General Land Office, the finding of the register and receiver, as appears from the record in this case, being——

'We find that the tract in question, which is the S. W. 1/4 of section 29, township 11 north, of range 2 west, of the Salt Lake meridian, was settled upon and occupied and claimed by a qualified entryman, to wit, Moroni Olney, prior to October 20, 1868, which therefore excepted the land from the operation of the grant of Congress to the Central Pacific Railroad Company.'

A certified copy of that decision in full was filed by counsel for defendant in error on the hearing in this court, and that certified copy reads as follows:

'This case arises upon an application to enter a tract of land covered by a railway selection which it is sought to cancel, for the reason that a valid settlement had been made on the land prior to the date of the attachment of the grant to the railway company.

'Our decision is that the motion of the Central Pacific Railway Company to strike out, dismiss, and expunge the depositions from the records should be denied. We therefore find the issues in favor of Andrew Madsen, and that the tract of land in dispute was reserved and excepted from the grant to the railroad company because, 1st, a pre-emption claim had attached to the land in dispute at the time the line of said road was definitely fixed.

'2d. There was a qualified pre-emption claimant upon the land at that time, which brought it within the first portion of the excepting clause of the act of 1864, which provides that any lands granted by that act, or the act to which it is an amendment, shall not defeat or impair any pre-emption claim.

'3d. On the 20th day of October, 1868, the land in dispute contained the improvements of a bona fide settler, which also excepted the land from the provisions of the grant.

'We further find that Central Pacific Railway selection No. 3 should be canceled as to the tract in dispute, and that Andrew Madsen should be permitted, if he so desires, to make pre-emption entry covering this land.

'We decide that he should be permitted to enter the land under the pre-emption law, because his right to do so, i. e., his settlement upon the land, was initiated long prior to the act of March 3, 1891, repealing the pre-emption law, which repealing act expressly excepted all bona fide claims lawfully initiated before the passage of the act.'

After the decision of the Commissioner affirming that of the register and receiver, the entry was made and a patent was issued to Madsen.

Prior thereto and on January 12, 1894, this action was brought in the fourth judicial district of the territory of Utah, county of Box Elder, by the plaintiff in error, grantee from th r ailroad company, to establish his title to the tract and to recover possession. In the trial court, after the issue of the patent and the admission of Utah as a state, a decree was entered in favor of the defendant. The case was taken by appeal to the supreme court of the state, and by that court the decree of the district court was affirmed (17 Utah, 352, 53 Pac. 996), to review which decree this writ of error was brought.

Messrs. L. E. Payson, Lindsay R. Rogers, and Wm. T. S. Curtis for plaintiff in error.

Mr. B. Howell Jones for defendant in error.

Mr. Justice brewer delivered the opinion of the court:

A narrow but important question is presented by this record. The land in controversy is an odd-numbered section within the place limits of the grant to the Central Pacific Railroad Company. The identification of the lands which passed by that grant was made at the time the map of definite location was filed in the office of the Secretary of the Interior, and by him approved, to wit, October 20, 1868; and the question is whether there was anything in the occupation or entry by Olney to defeat the title apparently then passing to the railroad company. That there was nothing of record affecting the validity of that title is conceded. No one, by an investigation of any public record, could have ascertained at that time that there was any doubt in respect thereto.

It is true that there was then no local land office in which those seeking to make preemption or homestead entries could file their declaratory statements or make entries, and the want of such an office is made by the supreme court of the state one of the main grounds for holding that the land did not pass to the railroad company. We agree with that court fully in its discussion of the general principles involved in the failure of the government to provide a local land office. The right of one who has actually occupied, with an intent to make a homestead or preemption entry, cannot be defeated by the mere lack of a place in which to make a record of his intent. In many states the statutory provision in respect to suits is that the defendant, on receiving service of summons, must within a certain time file his answer in the office of the clerk of the court. It cannot be doubted that if before he is thus called upon to file his answer the office is burned and the clerk dies, and there is no place or individual at which or with whom his answer can be filed, such accident or omission will not defeat his right to make a defense, or give to the plaintiff a right to take judgment by default. Where the accident or omission is not the fault of the party, but of the government, or some official of the government, such accident or omission cannot defeat the right of the individual, and in all that is said in respect to this by the supreme court of the state of Utah we fully agree. If Olney was in possession of this tract before October 20, 1868, with a view of entering it as a homestead or pre-emption claim, and was simply deprived of his ability to make his entry or declaratory statement by the lack of a local land office, he could undoubtedly, when such office was established, have made his entry or declaratory statement in such way as to protect his rights. But when the office was opened he filed his declaratory statement, and in that he did not suggest that he had been in the occupation of the premises prior to October 20, 1868, but declared that on the 23d of April, 1869, he settled and improved the tract. Assume that such declaration was subject to correction by him, that he could thereafter have corrected the mistake (if it was a mistake) and shown that he occupied the premises prior to October 20, 1868, with an intent to enter them as a homestead or pre-emption claim, he never did make the correction, and there is nothing in the record to show that his occupation prior to April 23, 1869, was with any intent to acquire title from the United States.

And in this respect we must notice the oftrepeated declaration of this court, that 'the law deals tenderly with one who, in good faith, goes upon the public lands with a view of making a home theren. ' Ard v. Brandon, 156 U. S. 537, 543, 39 L. ed. 524, 526, 15 Sup. Ct. Rep. 406; Northern P. R. Co. v. Amacker, 175 U. S. 564, 567, 20 Sup. Ct. Rep. 236, 44 L. ed. ——. With this declaration, in all its fulness, we heartily concur, and have no desire to limit it in any respect; and if Olney, the original entryman, was pressing his claims, every intendment should be in his favor in order to perfect the title which he was seeking to acquire. But when the original entryman, either because he does not care to perfect his claim to the land, or because he is conscious that it is invalid, abandons it, and a score of years thereafter some third party comes in and attempts to dispossess the railroad...