United States v. Reed

• Decision Date: 03 September 1886
• Citation: 28 F. 482
• Parties: UNITED STATES v. REED and another.
• Court: U.S. District Court — District of Oregon

28 F. 482

UNITED STATES v. REED and another.

United States Circuit Court, D. Oregon.

September 3, 1886

Lewis L. McArthur, Dist. Atty., and B. F. Dowell, for plaintiff.

Rufus Mallory, for defendants.

DEADY J.

On April 4, 1883, the district attorney commenced this suit on behalf of the United States against the defendants, Carlos D Reed and George E. Eccles, to set aside a patent issued to the former for the N.E. 1/4 of the N.W. 1/4 of section 31, in township 37 S of range 2 W. of the Wallamet meridian, and situate in Jackson county, Oregon. The patent was issued on a homestead entry made on September 2, 188, under section 2289 of the Revised Statutes, and commuted, for cash, on April 26, 1881 under section 2301 of said Statutes. The bill alleges that the land was and is mineral, and not agricultural, and is and was at the date of such entry, more valuable for mining than agricultural purposes, to the knowledge of the patentee, and was therefore not subject to entry as a homestead; and also that the defendant Reed agreed with certain persons who were squatted on the lands to make them deeds for some small portions thereof, when he obtained his patent, including their cabins and gardens, provided they did not make him any trouble in the land-office.

The testimony was taken in the form of depositions before notaries at Jacksonville. It is quite voluminous and contradictory. That of the plaintiff is largely irrelevant and immaterial, while much of it is written in almost colorless ink, so that it has really been a grievous task to read it.

Briefly, the facts are: The premises are situate about a mile west of Jacksonville, in the forks of Jackson creek. For 20 years from the fall of 1851 the bed, lateral gulches, and immediate banks of this creek and its tributaries within said section 31 were mined more or less for gold. During the first half of this period the yield was generally good, and in some instances very great. The mining ground in and on the three forks of this creek within this 40 acres was very rich. It was worked over early in the 50's, and was afterwards worked over and over, first by white men, and then by Chinese, prior to 1878, when it was considered worked out and abandoned.

The defendant Reed has been a miner and farmer in that vicinity for more than 25 years. In 1878 he bought of a squatter, for $250, a small house, garden, and orchard, in the north-east corner of the tract, and moved on the same with his family, where he has resided ever since, engaged in improving the property, and making a home there, by clearing the ground, making fences, building, planting grapes, fruit trees, and gardening, and occasionally mining, further up the creek, for money to pay expenses.

On September 2, 1880, Reed applied at the land-office at Roseburg to enter the tract in question as a homestead, and filed with his application the usual 'non-mineral affidavit,' to the effect that the land was not mineral, but agricultural, and that no portion thereof was being worked or claimed for mining purposes, under the customs and rules of the mining district; and on April 26, 1881, he applied to the register and receiver to commute his homestead entry under section 2301 of the Revised Statutes, and at the same time filed a 'non-mineral affidavit' to the same effect as the former one, which application was allowed; and, on making the required proof of residence and cultivation, and the payment of $1.25 an acre therefor, a certificate of p purchase was issued to him, upon which a patent was thereafter issued on March 10, 1883.

At the time Reed settled on the premises, three other persons were occupying small portions thereof as squatters, namely, John Donegan and his wife, Louis Poperick, and Eli Warnack. The Donegans lived in a cabin on the north edge of the tract, with one or two acres inclosed, and used for an orchard and garden, and had been there most of the time since 1872; the husband being engaged in blacksmithing, and the wife in washing. Louis Poperick had a little 12x14 cabin about the center of the tract, spoken of in the testimony as a 'chicken-coop,,' with a bit of garden near by, where he had lived since 1874, and at one time claimed and worked some mining ground on the tract. On January 8, 1878, Poperick and Donegan jointly leased to a Chinaman named Wong Goon, in consideration of $11 in hand paid, for 15 years, two placer mining claims, 100 yards square each, and lying on the south-west side of the right-hand fork of Jackson creek, and on this tract of land; and thereafter Poperick never mined on the premises, but worked a claim further up the creek. The lease, as is well understood, was in effect a sale; and the transaction was put in the form because the Chinese, not being entitled to become citizens of the United States, could not hold mining ground in their own right. Within two years thereafter, and before the entry of Reed, the Chinese abandoned the claims as worthless. Eli Warnack had a house, and less than an acre of ground inclosed, near the forks of the creek. Before commuting his entry, and making his final proof, Reed told these parties, in effect, that if they did not make him any trouble about his patent he would, after the same was issued, give them their several possessions.

Early in the year 1882 one William Moody and Edmond and David Curtis formed a partnership to work over the old dirt in the bed of the right-hand fork of the creek, and applied to Reed for permission to do so, which he gave them. After working a couple of seasons without success, they abandoned the enterprise, and Edmond Curtis, who furnished the money to carry it on, returned to his home in Indiana.

Early in 1882 one James P. Goodall, an old wandering, visionary miner, and out-of-door pauper, of Jackson county, sent affidavits to the commissioner of the general land-office tending to show the mineral character of the land in question; whereupon the commissioner, under date of February 21, 1882, wrote to the register and receiver, authorizing an investigation of the question, which was had; the affidavits used therein being taken before a notary at Jacksonville, among which were Donegan's, Poperick's, and Goodall's, to the mineral character of the land. On November 14, 1882, the register and receiver reported to the commissioner that Goodall had failed to prove his allegation; and, on appeal being taken from their action, the commissioner, on January 11, 1883, wrote the register and receiver that their decision had become final, and the land was thereby 'adjudged non-mineral in its character,' and the patent was issued accordingly.

Pending the controversy, in the fall of 1882, Goodall undertook to locate a mining claim on the left-hand fork of the creek, near the north-west corner of the tract, and did some work in opening or repairing ditches, but took out no gold. After the patent was issued, Goodall wrote to an agent of the general land-office at Roseburg, reiterating the charge that the land was mineral, and hence this suit.

Before the patent was issued Warnack turned over his house to Patrick Ryan on a debt he owed him, with the understanding that Reed would relinquish to him the land contained in the inclosure-- about seven-eighths of an acre-- when the patent issued, which he did in consideration of one dollar. Reed, however, refused to make any conveyance to Poperick or the Donegans, because they did not keep their word, but, as witnesses and otherwise, made him trouble and expense in his contest with Goodall; and because in the mean time Donegan and his wife had separated, and each claimed the conveyance to the exclusion of the other. Meanwhile, on August 8, 1883, the defendant George Eccles purchased the property, including a lot of household furniture, of Donegan for $150.

The land in question is generally high and rolling, with some low, level patches on the creek....