Wagstaff v. Collins

• Decision Date: 25 September 1899
• Docket Number: 1,161.
• Citation: 97 F. 3
• Parties: WAGSTAFF et al. v. COLLINS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

97 F. 3

WAGSTAFF et al. v. COLLINS et al.

No. 1,161.

United States Court of Appeals, Eighth Circuit.

September 25, 1899

This case was disposed of in the lower court upon demurrer to the amended bill of complaint, the complaint having been adjudged insufficient to warrant any relief. The bill was filed by Daniel R. Wagstaff, Marilla J. Wagstaff, Isabella Wagstaff Lelah Wagstaff Liebe, Lotta Fern Wagstaff, and Charity J Goss, the appellants, against Samuel G. Collins, Sewell T Collins, Michael Spangler, William D. Todd, the Kansas Pacific Railway Company, and the Union Pacific Railway Company, the appellees, and the case thereby made was, in substance, as follows:

The complainants below and the appellants here are the heirs at law of James Wagstaff, who died intestate in the month of January, 1880. On December 26, 1871, the deceased applied to the register and receiver of the United States land office at Denver, Colo., to enter as a homestead the N. 1/2 of the N.E 1/4, and the N.E. 1/4, of section 23, township 4 S., range 68 W., and was allowed to do so; his application being in due form, and the applicant himself duly qualified to make the application. Having made his application, he entered on the land and resided thereon until about September 1, 1874, when he relinquished the possession to the Kansas Pacific Railway Company, which was patented by the United States to the last-named railway company, as belonging to it under the act and the amendments thereof which granted to it certain lands in aid of the construction of its railroad. 12 Stat. 489; 13 Stat. 356; 14 Stat. 79. Under the provisions of the aforesaid act and its amendments, as subsequently construed in Railway Co. v. Dunmeyer, 113 U.S. 629, 5 Sup.Ct. 566, the land in controversy did not pass to the railway company as a part of its grant, and should not have been patented to it, because when it filed its map of definite location with the secretary of the interior on May 9, 1870, certain parties, to wit, Sylvester Markwell and A. Hopkins, had, respectively, on November 13, 1865, and April 11, 1866, filed pre-emption claims to the land which prevented the railroad grant from attaching thereto, within the rule announced in the Dunmeyer Case. The complainants remained ignorant of the homestead entry that had been made by their ancestor on the land in controversy until on or about August 11, 1891; but after discovering the entry that had been so made, and the facts in relation thereto, they made an application to the register of the United States land office at Denver, Colo., under the provisions of section 2 of the act of June 15, 1880 (21 Stat. 237, 238), to perfect their title and obtain a patent therefor, and at the time of such application made a tender to the United States of the price of the land, at the rate of $1.25 per acre. The bill further alleged that the Kansas Pacific Railway Company conveyed the land in controversy to the appellees Samuel G. Collins and Sewell T. Collins as early as March 6, 1876, before the receipt of a patent; that the grantees in such conveyance well knew that the railway company had no title to the land, and that James Wagstaff had made a homestead entry thereon, but that, notwithstanding such knowledge, they had taken possession thereof, and still held it, and had mortgaged a part of the tract to secure a promissory note in the sum of $30,000, which mortgage was made on July 30, 1890. The bill appears to have been filed originally on January 6, 1892, and to have been amended on June 12, 1896. The amended bill prayed that the defendants below be adjudged to hold the legal title to the land in trust for the complainants, and that they be required to convey it to them by a good and sufficient deed of conveyance.

H. E. Luthe and John P. Brockway, for appellants.

Willard Teller (H. M. Orahood, on the brief), for appellees.

THAYER Circuit Judge, after stating the case as above, .

In view of the averments of the amended bill of complaint, it must be assumed that the land in controversy was properly patented to the Kansas Pacific Railway Company under the rule which prevailed in the land department, and in accordance with which it acted in construing all grants in favor of railroad companies until the promulgation, on March 2, 1885, of the decision in Railway Co. v. Dunmeyer, 113 U.S. 629, 5 Sup.Ct. 566. Prior to the last-mentioned date, the doctrine prevailed that the existence of a pre-emption claim against a tract of land at the time a railroad grant attached thereto did not defeat the grant, if for any reason the pre-emption claim was abandoned or not consummated, but that, upon the failure of the pre-emption claimant to perfect his claim, the land covered thereby inured to the grant as of the date when it became effective. U.S. v. Winona & St. P.R. Co., 165 U.S. 463, 473, 17 Sup.Ct. 368. The inference is plain that as the law was understood and enforced by the land department on December 11, 1879, when a patent for the land in controversy was granted to the Kansas Pacific Railway Company, neither the pre-emption claim in favor of Sylvester Markwell, nor the subsequent one in favor of A. Hopkins, stood in the way of a valid grant to the railway company. At that time these pre-emption claims had doubtless been abandoned by the respective pre-emption claimants, and that fact was established evidently to the satisfaction of the proper officers of the land department, so that, within the law as then construed by the executive branch of the government, the railroad grant became attached to the land at least as early as May 9, 1870, when the map of definite location was filed, and the railway company was entitled to a patent. The same view of the law which actuated the executive branch of the government in granting a patent to the railway company for the land in controversy doubtless induced Samuel G. Collins and Sewell T. Collins, the appellees, to purchase the land from the railway company on March 6, 1876, and it is fair to infer from the allegations of the bill that the same view of the law also influenced James Wagstaff, the complainants' ancestor, to abandon his homestead entry, and submit to the title of the railway company, when it was asserted against and unlawfully ousted from the possession of the land on or about September 1, 1874, but it is not averred that force was employed to effect the ouster, or that he then claimed that the ouster was wrongful, or that he resorted to legal proceedings of any sort to retain or recover the possession, and, as there are no such averments, it must be presumed that he, in common with the officers of the land department, believed that the railway company's title was paramount, and that he relinquished his claim without contest, on the strength of that belief. Besides, the bill contains allegations to the effect that the complainants' ancestor was in a poor financial condition when the ouster took place; that he was illiterate and ignorant; and that his rights as a settler upon the public domain were not well understood,-- from all of which it is evident that in relinquishing his claim the complainants' ancestor did not act involuntarily, in the sense that he was constrained by superior force, or by legal process, but that he acted voluntarily, under a mistaken view of the law.

The settlement of the controversy which this record discloses depends apparently upon the construction and effect of the act of March 3, 1887 (24 Stat. 556, c. 376), and the...