Wilbur v. Cedar Rapids & Missouri River Railway Co.

• Decision Date: 12 February 1902
• Parties: HARVEY G. WILBUR v. THE CEDAR RAPIDS AND MISSOURI RIVER RAILWAY COMPANY and THE IOWA RAILROAD LAND Co., Appellants
• Court: Iowa Supreme Court

89 N.W. 101

116 Iowa 65

HARVEY G. WILBUR v. THE CEDAR RAPIDS AND MISSOURI RIVER RAILWAY COMPANY and THE IOWA RAILROAD LAND Co., Appellants

Supreme Court of Iowa, Des Moines

February 12, 1902

Appeal from Hamilton District Court.--HON. B. P. BIRDSALL, Judge.

ACTION to quiet title. The cross petition demanded the same relief. Decree was entered quieting title in plaintiff, and defendants appeal.

Affirmed.

Charles A. Clark & Son and Wm. G. Clark for appellants.

D. C Chase for appellee.

OPINION

LADD C. J.

One Devore took possession of the 40 acres of land in controversy by hauling logs on it in 1864, and the year following built a log house and broke 27 acres. He occupied it as a claim merely until the fall of 1866, when he sold out to plaintiff on the condition of the latter being able to enter it as a homestead. The consideration was $ 200, for which a receipt was given, but no conveyance was executed. Plaintiff took possession immediately, knowing title to be in the United States, and continued in the open and exclusive occupancy of the land until the spring of 1899,--more than 32 years. Soon after going into possession he fenced and ditched the land and built a granary and a stable thereon. Later he set out an orchard and grove, and 14 years ago erected a dwelling house thereon at a cost of $ 600. In February, 1867 he entered the 40 as a government homestead, taking the receiver's receipt for $ 14. This was canceled by the commissioner of the general land office March 23, 1869, as being in conflict with selections made by the Cedar Rapids & Missouri River Railroad Company under the land grant of congress approved May 15, 1856, as amended June 2, 1864. The register of the local office at Ft. Dodge was promptly advised of this action, but for some reason plaintiff was not notified until 1871. He made no application to have the entry reinstated, nor did he contest the ruling in any way. In the meantime April 20, 1869 this with other lands was certified by the secretary of interior to said railroad company, and was by it conveyed to the Iowa Railroad Land Company by quitclaim deed, September 15, 1869, which was recorded a year later. When this land was selected by the railroad company we have no definite means of knowing. The map of the modified line filed in the general land office undoubtedly pointed out all land within the six-mile limit, and tracts beyond that must have been selected in order to detach from the public domain subject to homestead entry. Cedar Rapids & M. R. Co. v. Herring, 110 U.S. 27, 28 L.Ed. 56, 3 S.Ct. 485, (3 S.Ct. 485, 28 L.Ed. 56); Sioux City & Iowa Falls Land Co. v. Griffey, 143 U.S. 32, (12 S.Ct. 362, 36 L.Ed. 64). True, it is stated in the letter to the receiver at Ft. Dodge that the cancellation of the homestead entry was because of its conflict with selections made under the grant, but this is in the nature of hearsay, and not competent to show what was in fact done. Indeed, the approval of the list including this land does not appear to have been made by the secretary of interior until April 20, 1869. If this 40 was within the place limits, or had been selected in lieu of that lost therein from the indemnity lands, the record of the department of the interior so indicated, and an exemplification of such record was necessary to establish the fact. Indeed, as this tract is in Hamilton county, and under the act of congress the company was bound to construct the road through Boonsboro, Boone county, it may well be suspected that this 40 is within the indemnity limits. But on this point, as said, there is no proper evidence, and the record does not indicate the tract to have been withdrawn from that portion of the public domain subject to homestead entry prior to its actual certification. The cancellation of the homestead entry was without notice to plaintiff, and as the result of an ex parte proceeding. The fees by him paid were not returned. He had been in possession in compliance with the homestead law nearly four years before receiving notice of the action of the commissioner, and the cancellation of his entry without an opportunity of being heard is entitled to little or no weight as an adjudication. The necessity of notice in such cases is clearly recognized in Cornelius v. Kessel, 128 U.S. 456, (9 S.Ct. 122, 32 L.Ed. 482); Brown v. Hitchcock, 173 U.S. 473, (19 S.Ct. 485, 43 L.Ed. 772). This much is said not to question but that the government passed the legal title to defendant's grantor, but to show that there is some basis for the plaintiff's claim of right under which he has been in possession. See Bisson v. Curry, 35 Iowa 72. ...