United States v. Barber Lumber Co.

• Decision Date: 07 September 1909
• Docket Number: 47.
• Citation: 172 F. 948
• Parties: UNITED STATES v. BARBER LUMBER CO. et al.
• Court: U.S. District Court — District of Idaho

172 F. 948

UNITED STATES v. BARBER LUMBER CO. et al.

No. 47.

United States Circuit Court, D. Idaho.

September 7, 1909

Peyton Gordon and Charles A. Keigwin, Special Assistants to the Attorney General, for the United States.

C. T Bundy and A. A. Fraser, for defendants.

BEAN District Judge.

This is a suit brought by the government against the Barber Lumber Company, a corporation, and others, to cancel and set aside 210 patents for lands in the state of Idaho, issued by the complainant to that number of entrymen and entrywomen under the timber and stone act (Act June 3, 1878, c. 151, 20 Stat 89 (U.S. Comp. St. 1901, p. 1545)), the title to the lands described in such patents having by proper conveyances vested in the defendant corporation.

The complainant charges, in substance: That the defendant, the Barber Lumber Company and its codefendants, intending to defraud the complainant out of large tracts of valuable public lands, did combine, conspire, and agree to and with Frank Steunenberg, now deceased, and one John I. Wells, and with other parties not necessary to be named, to fraudulently procure for themselves and for their use and benefit and pecuniary advantage large quantities of public lands by procuring certain named persons to avail themselves of the provisions of the timber and stone act by filing written statements and doing the other things required by said act and the regulations of the Commissioner of the General Land Office, under an agreement then and there and theretofore had and entered into, wherein, and whereby the said company and its codefendants agreed to purchase the lands described in the respective statements and applications of the applicants as soon as they should secure title thereto, they agreeing to furnish or procure to be furnished and supplied to the applicants the amount of money necessary to pay all expenses in connection with making the filings and procuring title including the sum necessary to pay for the land. That in pursuance of this unlawful and corrupt conspiracy and agreement, and to carry out and effect the object and purposes thereof, the defendant the Barber Lumber Company and its codefendants, together with Steunenberg and Wells, did unlawfully, falsely, fraudulently, and corruptly induce and procure divers named persons to apply at the United States Land Office at Boise, Idaho, for lands under the provisions of the act of Congress referred to, and did cause, induce, and procure such parties, and each of them, to appear before the register or receiver of the Land Office, and each to make and subscribe an oath to the written statement required by the act of Congress of persons desiring to avail themselves of the provisions thereof, in substance, that he did not apply to purchase the land described in his statement on speculation, but in good faith to appropriate it to his own exclusive use and benefit, and that he had not, directly or indirectly, made any agreement or contract with any person or persons whomsoever by which the title which he might acquire might inure in whole or in part to the benefit of any person except himself; that the statement so made by each of the applicants was false, fraudulent, and untrue, and made for the purpose of procuring title from the United States to the lands described in the several sworn statements to the persons named, pursuant to the unlawful, false, fraudulent, and corrupt conspiracy, combination, and agreement referred to.

That, in truth and in fact, divers of the several applicants had been supplied and furnished the money with which to pay for the lands, and the fees and expenses incident to obtaining title thereto, by the Barber Lumber Company and its codefendants pursuant to such unlawful combination and conspiracy. That thereafter the Barber Lumber Company and its codefendants, by reason of such unlawful, corrupt, and fraudulent schemes and practices, and by and through the various persons named in the bill as employed by them for that purpose, fraudulently obtained and procured the patents of the complainant to be issued to the various named persons, and that such patents were not procured in compliance with the laws of the United States, but were illegal, fraudulent, and void as against the complainant, and contrary to equity and good conscience.

The Barber Lumber Company alone answered, denying the fraud charged in the bill, and pleading affirmatively that it purchased the lands in controversy from the several entrymen and entrywomen in good faith for a valuable consideration, and without notice or knowledge of illegality in the method of procuring title from the government, if any such existed. Upon the issues thus joined, the case was referred to a master to take testimony, and, upon his report, the case has been tried and submitted.

The suit is brought to set aside land patents issued by the government on the ground of fraud. The bill of complaint sets forth in detail the acts constituting the alleged fraud, which consist substantially in an averment that, while the lands in question were entered ostensibly in the names of the several entrymen and entrywomen, they were in reality entered for the use and benefit of the Barber Lumber Company, and under a corrupt and illegal agreement between such entrymen and entrywomen and the company made prior to the time the respective applications for the purchase of the land were filed in the local land office, and that the affidavits attached to each of said applications, and the oath of each applicant made at the time of his application that he did not apply to purchase the land on speculation, but in good faith to appropriate it to his own exclusive use and benefit,and that he had not directly or indirectly made any agreement or contract in any way or manner with any person or persons whomsoever, by which the title which he might acquire should inure in whole or in part to the benefit of any person except himself, were false and untrue. Upon this averment complainant must recover, if at all. In a suit of this character the bill must show specifically and in detail in what the fraud consists and how it was effected, and, although the complainant may make out a case which, under other circumstances, would entitle it to the aid of the court, yet, if it is not the case made by the bill, it cannot recover. Southall v. Farish, 85 Va. 403, 7 S.E. 534, 1 L.R.A. 641; Kent's Adm'r v. Kent's Adm'r, 82 Va. 205; Lewis Pub. Co. v. Wyman (C.C.) 168 F. 756. With this understanding of the issues and the rule of law governing the proof thereunder we can proceed to a consideration of the facts.

The evidence is voluminous, consisting of between 4,000 and 5,000 pages of closely typewritten matter, together with a large number of exhibits, and in the nature of things it is impossible to note it in detail, or the various inferences or conclusions drawn therefrom. I can do nothing more than state briefly my conclusions, after a careful consideration of the record, aided materially, as I have been, by the able and exhaustive arguments and briefs of counsel. A large part of the testimony was taken over the objection of the defendant that it was immaterial, irrelevant, and incompetent, and these objections were renewed on the trial by a motion to strike out. It is not necessary, however, to consider the objections at this time, for the reason that, whether the testimony is competent or not, it does not affect the conclusions to which I have arrived. The lands involved because of their locality and the time and circumstances under which the title was acquired from the government, are naturally divided into three classes, and have been so considered throughout the trial, although not so designated in the bill, viz., 92 entries in the Boise Basin, and known as the 'Basin Lands,' a like number of entries in the Crooked river country, some distance east of the Basin and known as the 'Crooked River Lands,' and 26 entries in township 6, 4 E., known as the '6-4 lands.' The Basin lands were all open to entry prior to the year 1898, but no entries were made therein until the year 1901. During the late summer or early autumn of that year Parrish & Manning, a Minnesota firm, advertised in the Minneapolis papers that they were able to and would show persons desiring to purchase lands under the timber and stone act valuable tracts of lands in the Boise Basin, in the state of Idaho, for a consideration of $135 paid by each, which was to include the cost of transportation from Minnesota to the lands. In pursuance of this advertisement, and under an arrangement with Parrish & Manning, five or six people came from Minnesota to Idaho with the intention of taking land under the timber and stone act. Among the number were Patrick H. Downs and a man by the name of Snow. Downs and Snow were somewhat familiar with timber, acquainted with the government surveys, and capable of estimating the timber on a given tract of land, and tracing out the boundary lines thereof. After they arrived in Idaho, they worked five or six weeks for Parrish & Manning in cruising the lands in the Boise Basin, and thus familiarized themselves with the quantity and quality of the timber thereon, and with the location of the several tracts. Parrish & Manning's scheme, however, proved unsuccessful, and was abandoned early in the fall of 1901, but, either on account of the notoriety which it had given to the Boise Basin, or because of a local railroad enterprise headed in that direction, or the unaccountable desire to acquire title to public lands which sometimes possesses a community without any apparent reason, or for some other cause, a sudden demand seems to have arisen for timber land in that vicinity by persons desiring to purchase the same under...