Zimmerman v. McCurdy
| Decision Date | 23 January 1906 |
| Citation | 106 N.W. 125,15 N.D. 79 |
| Court | North Dakota Supreme Court |
Appeal from District Court, McHenry county; Palda, Jr., J.
Action by Mary Zimmerman against Caroline McCurdy. Judgment for defendant, and plaintiff appeals.
Reversed.
Judgment reversed, and judgment entered for plaintiff, and plaintiff recovered the taxable costs and disbursements of both courts.
McClory & Barnett, for appellant.
If the court has no jurisdiction to try the title to land, it can by injunction preserve the statu quo. Cosmos Exploration Co v. Gray Eagle Oil. Co., 112 F. 4, 61 L. R. A. 230.
A defendant is not entitled to an injunction. Forman v Healy et al., 11 N.D. 563, 93 N.W. 866.
Injunction will not be granted to take property from the possession of one and give it to another. Dickson v. Dows, 11 N.D 404, 92 N.W. 797.
Until title to land passes from the United States, exclusive jurisdiction to determine adverse claims is in the department of government charged with the disposal of such lands. Grandin et al. v. LaBar, 3 N.D. 446, 57 N.W. 241; Adams v. Couch et al., 26 P. 1009; Sommager v. Dicks, 28 P. 864; Marquez v. Frisbie, 101 U.S. 473, 25 L.Ed. 800; Johnson v. Towsley, 13 Wal. 72, 20 L.Ed. 485; Shepley et al. v. Cowan et al., 91 U.S. 330, 23 L.Ed. 424; Litchfield v. Register, 9 Wal. 575, 19 L.Ed. 681; Gaines et al., v. Thompson et al., 7 Wal. 347, 19 L.Ed. 62; Empey v. Klugert, 64 Wis. 603, 23 N.W. 560.
Courts will not pass upon the merits of contesting parties and decide which has established his ultimate right to receive the legal title to the land, but only to protect the actual possession and prevent wrongful and forcible interference until the government parts with the title. 26 Am. & Eng. Enc. Law, 385; Marquez v. Frisbie, supra; Atherton et al. v. Fowler et al., 96 U.S. 519, 24 L.Ed. 732; Fulmele v. Camp, 20 Col. 495, 39 P. 407; Hastay v. Banness et al., 84 Minn. 120, 86 N.W. 896; Mathews v. O'Brien, 84 Minn. 505, 88 N.W. 12; McQuistion v. Walton, 69 P. 1048; Woodside v. Rickey, 1 Ore. 108; Lee v. Simonds, 1 Ore. 158; Collwell v. Smith, 1 Wash. Ty. 92; Caldwell v. Robinson, 59 F. 663; Wood v. Murray, 85 Iowa 505, 52 N.W. 356.
Where one by a filing and another by prior settlement are entitled to the occupancy of government land, the courts will make an equitable disposition of the possession pending the contest in the land office, and will permit neither the exclusive possession. 26 Am. & Eng. Enc. Law, 386; Adams v. Couch, 1 Okl. 17; Commager v. Dicks, 1 Okl. 82; Sproat v. Durland, 2 Okl. 24, 35 P. 682; Peckham v. Faught, 2 Okla. 173, 37 P. 1085; Glover v. Swartz, 58 P. 943.
Hanchett & Wartner, for respondents.
The holder of a receiver's receipt to a homestead entry is entitled to the exclusive use, possession and occupancy of the land embraced in such entry, and his rights will be protected by injunction. Sproat v. Durland, supra; Reaves v. Oliver, 41 P. 353; Woodroff v. Wallace, 41 P. 357; Barnes v. Newton, 48 P. 190; Calhoun v. McCornack, 54 P. 493; Bank v. Holst, 95 N.W. 931; Moore v. Parker, 80 N.W. 43.
Where a party in good faith has made a settlement and sought to initiate a homestead right, and made application to file, and to contest an entry by one who has received a receiver's receipt, both may remain in possession, but such possession extends only to the portion occupied by each. Commager v. Dicks, 28 P. 864; Sproat v. Durland, supra; Peckham v. Faught, supra; Clark v. Diehl, 48 P. 178; Glover v. Swartz, supra.
Settlement upon land covered by an existing entry confers no right where such entry is cancelled as the result of a contest for a preference right. Haskins v. Nichols, 1 Dec. Dept. Int. 172; Nichols v. Littler, 3 Dec. Dept. Int. 224; Ebbott v. Schaetzel, 4 Dec. Dept. Int. 687; Hensworth v. Holland, 8 Dec. Dept. Int. 400; Paulson v. Richards, Id. 597.
There is no dispute as to the material facts of this case. The plaintiff, Mary Zimmerman, is the widow of Frank Zimmerman, deceased. Frank Zimmerman in his lifetime, on April 22, 1898, filed a homestead entry on the quarter section of land in question at the Devils Lake land office. He took up his residence upon the land and occupied it, with his family, as his home until his death in June, 1900. After his death his widow and minor children continued in possession of the homestead. Shortly before Mr. Zimmerman's death a contest was initiated by this defendant, Caroline McCurdy, against Zimmerman's entry, on the ground that said entryman had exhausted his homestead right before making the entry in contest. After his death his widow and children were substituted as defendants in the contest. That contest resulted in a final decision canceling the contested entry. The contestant, Caroline McCurdy, thereupon exercised the preference right of entry secured to her by the contest, and on November 24, 1902, her application to enter the land as a homestead was accepted, and the usual receipt evidencing such entry was made and delivered to her by the receiver of the Devils Lake land office. On December 3, 1902, the plaintiff, Mrs. Zimmerman, filed in the Devils Lake land office her application, in proper form, to be allowed to enter the land as her homestead; and at the same time she filed an affidavit of contest against the homestead entry of Caroline McCurdy. Mrs. Zimmerman claims the right to hold the land as her homestead, and contests the validity of defendant's entry on the ground that she (plaintiff) after the death of her husband became qualified to enter a homestead; and, her deceased husband's entry being void, her possession and her continued cultivation and improvement of the land with intent to hold the land as a homestead gave her a right to file a homestead entry for the land superior to the right of Mrs. McCurdy, notwithstanding the result of the contest against Frank Zimmerman's entry. She also asserted that defendant's entry should be canceled and her own application to enter should be allowed by reason of certain equitable considerations. The officers of the local land office held that the affidavit disclosed sufficient ground for contest, and ordered a hearing. The necessary notice was served on Mrs. McCurdy, a hearing was had, and the contest was still pending and undetermined when this action was tried. It was admitted at the trial by the defendant that the plaintiff and her family had been continuously occupying the land as their home and farming thereon since 1898, and had improved the same in a substantial manner with farm buildings of the value of at least $ 3,000 and had no other home; and that defendant had never been in possession of any part of said premises until after this action had been commenced. At that time the defendant took possession of ten acres, as she was permitted to do by the injunctional order hereafter referred to. In March, 1903, after the last contest had been commenced, but before the hearing had been had, the defendant attempted to oust plaintiff and take possession of the land and improvements. Plaintiff thereupon commenced this action, setting forth in the complaint her possession, and alleged right to the possession of said premises by reason of the facts above stated, the pendency of the contest against Mrs. McCurdy's entry, and the latter's repeated threats and attempts to oust plaintiff by force, etc., and prayed that the plaintiff's alleged lawful possession be protected by enjoining Mrs. McCurdy from interfering with plaintiff's occupation and cultivation of the premises. In her answer Mrs. McCurdy pleads a counterclaim, alleging her right to possession by virtue of her as yet uncanceled homestead entry, the refusal of the plaintiff to vacate, and her forcible resistance of defendant's attempts to obtain possession. She prays that the plaintiff be dispossessed by a mandatory injunction and be restrained from resisting or interfering with defendant's right to possession. On the hearing of plaintiff's application for a temporary injunction, the court made an order permitting Mrs. McCurdy to hold and occupy a certain portion of the land, about ten acres in area, and ordering her to refrain from interfering with Mrs. Zimmerman's possession of the remainder of the land until the final determination of the action. The action was subsequently tried, and judgment ordered and entered in effect awarding possession of the entire premises to defendant, but giving the plaintiff the right to remove within ninety days the buildings and other improvements erected by her on the land. The plaintiff has appealed from this judgment, and demands a new trial of all the issues.
The judgment is clearly erroneous. From the foregoing recital of the undisputed facts, it will be seen that the decision of the trial court is necessarily predicated upon the assumption that Mrs. McCurdy's entry is valid and Mrs Zimmerman's claim is invalid. That is the precise question in litigation before the land department in the pending contest. Mrs. Zimmerman is in actual possession under a claim of right. If her claim is well founded, she has the right to retain possession and hold the land as a homestead. notwithstanding Mrs. McCurdy's entry. Manifestly her possession cannot be disturbed unless her alleged right is held to be unfounded. That question is one which, under the circumstances of this case, the courts have no jurisdiction to decide. That is a question which is within the exclusive jurisdiction of the land department to decide so long as the disposition of the land is under control of the federal...
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