Wood v. Murray
| Decision Date | 23 May 1892 |
| Citation | 52 N.W. 356,85 Iowa 505 |
| Parties | CHRISTINA WOOD, Appellee v. JAMES MURRAY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--HON. C. H. LEWIS, Judge.
THE defendant appeals from an order overruling his motion to dissolve a temporary injunction granted herein against him.
Affirmed.
Davis Gantt & Keatley, for appellant.
George Stickney, for appellee.
The facts out of which this contention arises are as follows Alexander Wood, husband of the plaintiff, filed his declaratory statement under the pre-emption laws of the United States, in the United States land office at Des Moines, on the thirteenth day of September, 1887, upon the west half of the northeast quarter of section 33, township 89, range 44 west, Woodbury county, Iowa and paid the register's and receiver's fees, receiving receipt therefor. Mr. Wood and his family, consisting of his wife, the plaintiff, and their five minor children, were then living upon the land, and continued to reside thereon until the death of Mr. Wood, January 21, 1889, since which the plaintiff and her children have continuously resided in the same place. On the sixteenth day of December, 1887, the defendant entered as a homestead the north half of said quarter section, which included the north half of the eighty pre-empted by Wood. A contention arising as to which party was entitled to the forty acres, the matter was submitted to the local land office, and decided in favor of this defendant. On appeal to the commissioner of the general land office, he decided in favor of this plaintiff, and the matter is now pending on appeal before the honorable secretary of the interior. This defendant having entered upon said forty-acre tract, and prevented the plaintiff and her minor son from cultivating the same, a temporary injunction was granted upon the plaintiff's petition, restraining the defendant from cultivating said land, or in any manner interfering with the peaceable possession of the plaintiff in the same. It does not appear that administration was granted upon the estate of Alexander Wood, nor that any guardian has been appointed for his children, all of whom are minors.
I. It will be observed that neither party has acquired title from the United States. The appellant contends that, as the legal and equitable title remains in the United States, the courts have no jurisdiction to determine which party is entitled upon compliance with the law, to have title from the United States. The authorities are uniform in holding that this issue between the parties must be determined by the proper department of the government, and that the courts have no jurisdiction thereof. Marquez v. Frisbie, 101 U.S. 473, 25 L.Ed. 800; Forbes v. Driscoll, 4 Dak. 336, 31 N.W. 633. The latter case was a contest between parties, each claiming pre-emption, the junior pre-emptor contending that...
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