Walter Small v. Samuel Rakestraw

• Decision Date: 30 January 1905
• Docket Number: No. 133,133
• Parties: WALTER W. SMALL, Plff. in Err. , v. SAMUEL O. RAKESTRAW
• Court: U.S. Supreme Court

196 U.S. 403

25 S.Ct. 285

49 L.Ed. 527

WALTER W. SMALL, Plff. in Err.,

v SAMUEL O. RAKESTRAW.

No. 133.

Argued January 18, 1905.

Decided January 30, 1905.

Messrs.

George A. King, William B. King, and William E. Harvey for plaintiff in error.

No counsel for defendant in error.

Mr. Justice Holmes delivered the opinion of the court:

This is a complaint by the plaintiff in error to charge the defendant with a trust in respect of land which the latter holds under a patent from the United States. It alleges a homestead entry by the plaintiff, a contest by the defendant, a decision for the defendant by the local register and receiver, a reversal of this by the Commissioner of the Land Office, and a reversal of the latter decision and a cancelation of the plaintiff's entry by the Secretary of the Interior. The last order is set forth in full, and the complaint goes on the ground that this order discloses a mistake of law on its face. The complaint was demurred to, the demurrer was sustained, and the suit dismissed. An appeal was taken to the supreme court of the state, which affirmed the judgment. 28 Mont. 413, 72 Pac. 746. The case then was brought here.

The material portion of the Secretary's decision is as follows:

'January 21, 1892, plaintiff filed his affidavit of contest against the defendant's homestead entry, charging that the entryman had failed to comply with the law as to residence. The testimony of Small, himself, is that he never voted in the precinct in which his homestead entry lies, but did vote at other points a long distance from his homestead at least twice during the time he claims he was seeking to maintain residence upon the land. He runs a carpenter shop in town, and, to use his own words, 'determined to return to the ranch only often enough to keep a good showing of habitation.' His excuse for that was that the plaintiff threatened him with violence if he undertook to stay on the land.

'Without passing upon any other question it is enough to say that a residence for voting purposes in another precinct from the land precludes an entryman from claiming residence at the same time, on the land for homestead purposes. Re Burns, 4 Land Dec. 62; Hart v. McHugh, 17 Land Dec. 176; Edwards v. Ford (decided June 18, 1894) 18 Land Dec. 546.'

The plaintiff's case rests on the assumption that the words 'without passing upon any other question,' mean without passing upon any other question than an absolute proposition of law, and that this proposition is that a vote in another precinct is fatal to a claim of residence. But the Secretary found, by implication, that the plaintiff not merely voted elsewhere, but resided elsewhere for voting. It was after this finding that he laid down the rule complained of. The case presents no exceptional circumstances which would warrant...