United States v. Bothwell Co.

• Decision Date: 02 September 1925
• Docket Number: No. 452.,452.
• Citation: 7 F.2d 624
• Parties: UNITED STATES v. BOTHWELL CO. et al.
• Court: U.S. District Court — District of Wyoming

7 F.2d 624 (1925)

UNITED STATES v. BOTHWELL CO. et al.

No. 452.

District Court, D. Wyoming.

September 2, 1925.

Albert D. Walton, U. S. Atty., of Cheyenne, Wyo., and Brooks Fullerton, of Mitchell, Neb., District Counsel for Bureau of Reclamation, for the United States.

Patrick H. Loughran, of Washington, D. C., and Haggard & O'Mahoney, of Cheyenne, Wyo., for defendants.

KENNEDY, District Judge.

This is an action for the condemnation of lands under the Reclamation Act of June 17, 1902 (Comp St. §§ 4700-4708). It was instituted May 10, 1909, and was directed to securing title to lands necessary in creating the Pathfinder Reservoir in this state. In the first instance, commissioners were appointed, but the government, feeling aggrieved by their finding, sought to have the value of the lands involved determined by a jury, which was accordingly done. A part of these lands consisted of a so-called desert entry, which had previously been entered by one Florence Kelly, thereafter transferred to the defendant Bothwell by deed, and then to the defendant the Bothwell Company. In its petition the government alleged that the said desert entry was fraudulent, that it had been held by the Department of the Interior for cancellation, and was at the time of filing the bill of complaint under investigation by that department.

A trial was subsequently held, and the matter submitted to a jury, with a direction to the jury to make a separate finding as to the said Kelly tract, which the jury did, assessing its value at the sum of $9,600. The court thereafter, and on the 7th day of December, 1909, approved and affirmed the verdict of the jury, and as to the Kelly tract confirmation was made subject to the future determination of the court as to the ownership of said lands. This action of the court became final as to all lands except the Kelly tract, and as to said tract the suit has remained in statu quo until on or about the 1st day of July, 1925, when the defendant Bothwell Company filed its motion for judgment under the order of December 7, 1909, which is the matter now before the court.

The history of the so-called Kelly tract in brief is about as follows: The entry was made on June 2, 1902, under the Desert Land Act (Comp. St. §§ 4674-4678). On April 28, 1903, final proof was made, which was accepted and approved by the register and receiver, and on May 8, 1903, final receipt and final certificate were issued to the entryman. On May 13, 1903, Kelly sold and transferred the entry to the defendant A. J. Bothwell, who in turn on February 1, 1904, conveyed the land to the other defendant, the Bothwell Company. On April 26, 1905, a special agent of the General Land Office executed at Cheyenne, Wyo., a report to the General Land Office upon this entry. On May 1st of the same year this report was received and filed in the General Land Office at Washington, D. C. On May 27, 1905, the General Land Office suspended the Kelly entry because of representations appearing in the aforesaid report. On August 26, 1909, the General Land Office formally preferred charges against the Kelly entry and ordered proceedings for the trial of such charges. Then proceeded hearings before the General Land Office and the Secretary of the Interior, by which it was finally adjudged during the year 1911 that the entry should be canceled. As before stated, nothing further was done in the case at bar, as neither party moved for any relief until the motion for judgment on the part of the defendant was filed during the current year.

The point in the case is this: The defendant maintains that, inasmuch as no contest or protest against the validity of the entry was filed before the lapse of two years from the date of the issuance of the receiver's receipt, it became the duty of the Interior Department to issue a patent to the entryman or his successor in interest; this contention being based upon section 7 of the Act of March 3, 1891 (26 Stat. 1099 Comp. St. § 5113) which reads as follows:

"That after the lapse of two years from the date of the issuance of the receiver's receipt upon the final entry of any tract of land under the homestead, timber culture, desert land, or pre-emption laws, or under this act, and when there shall be no pending contest or protest against the validity of such entry, the entryman shall be...