Webster v. Newell

• Decision Date: 23 June 1887
• Citation: 33 N.W. 535,66 Mich. 503
• Parties: WEBSTER v. NEWELL, Com'r, etc.
• Court: Michigan Supreme Court

33 N.W. 535

66 Mich. 503

WEBSTER v. NEWELL, Com'r, etc.

Supreme Court of Michigan

June 23, 1887

Appeal from circuit court, Muskegon county. In chancery.

Moses Taggart, Atty. Gen., for defendant.

CHAMPLIN J.

The congress of the United States granted to the state of Michigan certain lands to aid in the construction of railroads in the state. Act of congress of June 3, 1856, and also of March 4, 1879. The legislature of the state of Michigan conferred the lands upon certain railroad corporations to aid in the construction of the roads therein mentioned, and, among others, a portion of such lands were granted to the Detroit & Milwaukee Railway Company. The title to these lands became involved in dispute. Litigation followed, in which the title of innocent purchasers and actual settlers was found to be nugatory. For the purpose of relieving such parties, the legislature passed act No. 197 at its session of 1883. The third section of this act provided that any person who shall have purchased, in good faith, by deed or by contract, any of the said lands from Augustus D. Griswold William R. Bowes, trustee, or his successor, or Amos Gould or the grantees of either of them, previous to the twenty-ninth day of January, A.D.1881, shall have patents issued to them for the lands described by their respective purchases, but not to exceed 160 acres. The act provided what proof should be made, and also for the payment to the state treasurer of 10 cents an acre, and taxes since the date of the original purchase in certain cases.

The complainant filed his bill of complaint against defendant as commissioner of the state land-office, setting up that he is a purchaser in good faith of the north fractional half of the N.E. 1/4 of section 1, in town 10 N., range 16 W., and of the S.E. 1/4 of the N.E. 1/4, and the N.E. 1/4 of the S.E. 1/4 of section 27, and the S.E. 1/4 of the S.W. 1/4 of section 23, in town 9 N., range 16 W., all in the county of Muskegon and state of Michigan; that he became such purchaser on or about the first day of December, 1880; that he has complied with the conditions of the above-named act and requested a patent therefor; that he made no selection at the time of any particular 160 acres, and was not requested by the commissioner to make selection; that on or about June 12, 1884, he was informed by the deputy of said commissioner that, as no selection had been made by complainant, the commissioner had made such selection, in accordance with the rules of his office, by taking the first-mentioned description, which contained 122 acres, which, as he informed complainant, was all the land to which he was entitled; that complainant, by his agent, requested the privilege of making the selection, which was refused. He also asked for land sufficient to make up the 160 acres, which was also refused, but said commissioner has advertised the balance of said land at public auction, claiming to act under the authority of said act. The bill prays for an injunction against such sale until complainant is allowed to select the full amount of 160 acres; and that the commissioner be decreed to issue a patent for the lands thus selected. The defendant demurred to the bill, and for special cause shows--First, that it does not show what particular claim or interest complainant was entitled to, if any, in the lands therein described; second, that he shows no selection of the land covered by the deed, and no compliance on his part with the requirements of the act entitling him to relief from a court of equity; third, that the cause of complaint, as alleged, is not one within the cognizance of the court, and that the court has no jurisdiction to afford relief in this form of action; fourth, that the prayer for an order requiring a patent to issue for the lands described in the bill is without authority, and insufficient; fifth, for want of equity. The circuit court sustained the demurrer, and complainant appealed.

The conveyance to complainant embraces four distinct parcels of land,--three 40-acre tracts, and a fractional half-section,--containing 122 acres by government survey The deed was made prior to the legislation of 1881 and 1883, and the descriptions contained therein had no reference to any selection authorized or required by law to be made. The rules of practice in the state land-office, and the decisions of this court bearing...