Tustin v. Adams

• Decision Date: 17 May 1898
• Citation: 87 F. 377
• Parties: TUSTIN v. ADAMS et al.
• Court: United States Circuit Court, District of Washington, Southern Division

87 F. 377

TUSTIN v. ADAMS et al.

United States Circuit Court, D. Washington, Southern Division.

May 17, 1898

John C Stallcup, for complainant.

Danson & Huneke, for defendants.

HANFORD District Judge.

This suit is to obtain a judicial determination of the rights of contesting homestead claimants under the land laws of the United States. On December 13, 1889, the complainant, Mrs Frances Tustin, offered to file in the United States district land office at North Yakima her application to enter as a homestead the tract of land in controversy, but her application was rejected by the register and receiver for the reason that the land is part of an odd-numbered section, and was at that time supposed to be included in the land grant to the Northern Pacific Railroad Company. In subsequent proceedings in the land department the claim of the railroad company has been set aside. Subsequent to the date of complainant's application to enter the land as a homestead, the defendant Mrs. Adams claimed the same tract as a homestead, and in the contest proceedings between them the land department finally decided that Mrs. Adams had the better right, and a patent conveying the title has been issued to her. In the amended bill of complainant filed herein, the decision of the secretary of the interior containing a recital of the facts and the secretary's conclusions of law is set forth in full, and the complainant alleges that the facts as found and set forth in the secretary's decision are such as to entitle her legally to a decree declaring her to be the real owner of the land and that Mrs. Adams holds the title as trustee, and requiring her to convey the same to complainant. The defendants have demurred to the amended bill, and the case has been argued and submitted by counsel for the parties, respectively, upon the demurrer.

In the argument counsel for the complainant insists that the only material facts shown by the decision of the secretary of the interior are:

'First. That on the 13th day of December, 1889, the plaintiff herein, Frances M. Tustin, duly applied to enter the tract of land in controversy herein as a homestead under the land laws of the United States, and thereafter fulfilled all lawful requirements in relation thereto. Second. That a year and ten days afterwards, to wit, December 23, 1890, defendant herein Phoebe D. Adams applied to enter the same tract as a homestead. Third. That defendant's application was at first rejected on two grounds, one of which was plaintiff's prior application, but that this ruling was afterwards reversed by the various officers of the department, and decided in defendant's favor, and a patent to said lands issued to her.'

This statement of facts is, indeed, quite simple, and success would be easy for the complainant if her counsel could eliminate from the case all other facts, and confine the inquiry to questions as to the rights of the parties arising from his statement. Were the controversy restricted within the narrow limits proposed, I should agree with him that the only logical and legal conclusion to be drawn would be that his client is entitled to the land. The premises, however, are false in two particulars, and the argument built thereon is necessarily unsound. In the first place, it is not true that the secretary of the interior, in his decision, found as a fact that the complainant 'fulfilled all lawful requirements in relation' to her homestead claim. The law requires as a prerequisite to perfecting a title to land under the homestead law that the homestead claimant shall make a peaceable entry upon unappropriated public land, and establish a home thereon, by either erecting a dwelling house, or purchasing from the owner a house suitable for habitation, and continued residence upon and cultivation and improvement of the land. The secretary's decision contains no findings of such facts in the complainant's favor.

In the second place, it is necessary, in order to reach a just decision in accordance with the legal rights of the parties, to take into consideration the facts as to the status of each party,-- as to the nature and condition of the land, as to the date and manner of taking possession, as to the improvements made upon the land, and as to the good faith of each in meeting the requirements of the homestead law. The facts set forth in the secretary's decision, which I deem important and material, are as follows, viz.:

'The tract here involved, viz. the N.W. 1/4 of Sec. 31, T. 13 N., R. 19 E., North Yakima, Washington, land district, is within the primary limits of the grant to the Northern Pacific Railroad Company, branch line, the withdrawal for the benefit of which became effective July 11, 1879. Map of definite location was filed May 24, 1884. * * * In 1880, J. M. Adams, who was at that time receiver of the land office at North Yakima, took possession of the tract, and began fencing, irrigating, and otherwise improving it. Supposing, under the rulings of the

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