United States v. Flournoy Live-Stock & Real-Estate Co.

• Decision Date: 07 January 1896
• Citation: 71 F. 576
• Parties: UNITED STATES v. FLOURNOY LIVE-STOCK & REAL-ESTATE CO. et al.
• Court: U.S. District Court — District of Nebraska

71 F. 576

UNITED STATES v. FLOURNOY LIVE-STOCK & REAL-ESTATE CO. et al.

United States Circuit Court, D. Nebraska.

January 7, 1896

A. J Sawyer, U.S. Dist. Atty., and R. W. Breckenridge, for the United states.

Brome Burnett & Jones, for defendants.

SHIRAS District Judge.

This case has already been before the court upon a demurrer to the bill, and reference may be made to the opinion then given for a statement of the questions involved and the facts out of which they arise. See 69 F. 886. After the overruling of the demurrer, the Flournoy Live-Stock & Real-Estate Company and the other defendants filed answers to the bill, and thereupon the case was by the complainant set down for hearing upon the bill and answer, and in this form, after argument by counsel has been submitted to the court. The answers, which are the same in substance, in effect admit the making of the treaties with the Omaha and Winnebago tribes of Indians; the enactment of the several acts of congress recited in the bill; the allotment of portions of the reservation lands to the members of the named tribes in severalty; the leasing thereof by the Flournoy Live-Stock & Real-Estate Company and by the other defendants, and the occupation of these leased lands by the defendants; but aver that all restrictions contained in the treaties or acts of congress upon the absolute right of alienation by the allottees are now obsolete, null, and void. As the case has been set down for hearing upon the bill and the answers filed thereto, the defendants are entitled to the benefit of all matters properly pleaded in the answer, and the questions at issue are therefore those presented by the averments of the bill, not denied in the answers, read in connection with any facts properly pleaded in the answers. Banks v. Manchester, 128 U.S. 244-251, 9 Sup.Ct. 36.

Averments in an answer of legal conclusions from admitted facts, or touching matters of which the court takes judicial knowledge are not held to be facts properly pleaded, in such sense as to preclude the court from drawing the proper conclusions of law, or from relying upon its judicial knowledge of such matters as the court is bound to take notice of, and which may be pertinent to the questions at issue. U.S. v. Ames, 99 U.S. 35-45; Dillon v. Barnard, 21 Wall. 430; Jones v. U.S., 137 U.S. 202-214, 11 Sup.Ct. 80; Wilson v. Gaines, 103 U.S. 417; Railroad Co. v. Palmes, 109 U.S. 244-253, 3 Sup.Ct. 193. The courts of the United States take judicial notice not only of the public acts of congress and of the legislatures of the several states of the Union, but also of the rules and regulations prescribed by the several departments for the transaction of the public business (Caha v. U.S., 152 U.S. 211, 14 Sup.Ct. 513); also of the territorial extent of the jurisdiction exercised by the government whose laws they execute; also of the acts of the executive branch of the government, in the enforcement of the treaties or public laws of the country (Jones v. U.S., 137 U.S. 202-214, 11 Sup.Ct. 80); also of all matters of general history or of public notoriety; also of the official character of persons appointed by the president or heads of the departments or of the bureaus therein for the performance of duties created by acts of congress (Brown v. Piper, 91 U.S. 37; Keyser v. Hitz, 133 U.S. 138-145, 10 Sup.Ct. 290).

The first question argued by counsel is that of the jurisdiction of the court, based upon the fact that the bill avers that the amount in controversy exceeds $2,000, which is denied in the answers. If, under the statutes now in force, the restriction as to amount applied to cases wherein the United States is plaintiff or complainant, the contention would have force; but it does...