Deweese v. Reinhard

The controversy in this case respects the N. E. 1/4 of section 14, township 5, range 3, situate in Saline county, Neb. The facts are these: The state of Nebraska, upon its admission into the Union, became entitled, by virtue of section 8 of the act of congress of September 4, 1841 (5 Stat. 455), to 500,000 acres of public land, to aid in promoting its internal improvements. March 26, 1868, the state selected 359,708 acres of land, including the tract in controversy, as part of this grant. March 24, 1870, the selection was approved by the commissioner of the general land office, who, in his certificate of approval, certified that the lists had been 'carefully examined and compared with the township plats and tract books of this office, and are found to be free from conflict; and I respectfully recommend that the same be approved, subject to any valid interfering rights which may have existed at the date of selection.' March 29, 1870, this action was approved by the secretary of the interior in these words: 'Approved, subject to all the rights above mentioned.' The lists, duly certified, were transmitted to the state, and recorded in the proper office. April 20, 1871, the state of Nebraska patented 100,000 acres of these lands, including the tract in controversy, to the Midland Pacific Railway Company, in execution of a contract made by the state, through an act of its legislature of February 15, 1869. Laws Neb. 1869, p. 153. The appellees hold under a chain of title from the Midland Pacific Railway Company, the deed to Jacob Reinhard, one of the appellees, and Frederick Fieser, being dated November 11, 1878, they at the time paying for the land $12 per acre. On May 12, 1892, Frederick Fieser died, and his heirs and devisees are, in addition to Jacob Reinhard, the appellees in this case. The appellees and their grantors have paid the taxes of every kind levied upon the land since the patent from the state, amounting at the time of the decree in the circuit court to $1,375.81.

The claim of appellant was initiated on May 31, 1883, more than 15 years after the selection by the state, more than 13 years after the approval by the secretary of the interior of such selection and the certification to the state, 12 years after the state had conveyed the land away to its grantee, and nearly 5 years after the deed to appellees. It was initiated by an occupation of the tract, and an application to enter it as a homestead. This application was rejected by the local land officers, and their action in this matter was affirmed by the commissioner of the general land office and the secretary of the interior. On July 6, 1888, the appellant, who had been in continuous possession ever since his first entry, tendered the local land office proof that he had complied with the terms and conditions of the homestead laws of the United States, and demanded a patent for the land. This was denied by the local land officers, and from such denial no appeal was taken. The theory upon which the appellant proceeded was that the land was within the limits of the grant made by the United States to the Burlington & Missouri River Railroad Company by act of congress of July 2, 1864 (13 Stat. 356, 364), and that by the act of March 6, 1868 (15 Stat. 39), the even-numbered sections within such limits were raised to double minimum lands, and, while subject to homestead and pre-emption entry, were not subject to private entry; that, therefore, the selection by and certification to the state were absolutely void, and passed no title; that the title remained in the United States until he, by full compliance with the requirements of the homestead laws, acquired an equitable right to the land.

An action of ejectment having been commenced by Reinhard and Fieser on November 16, 1885, in the United States circuit court for the district of Nebraska, to recover possession, a bill in equity was filed by the appellant in the same court on October 8, 1888, to enjoin the further prosecution of that action, and to quiet his title. Upon pleadings and proof the circuit court entered a decree dismissing the bill, which decree was affirmed by the circuit court of appeals (19 U.S. App. 698, 10 C. C. A. 55, and 61 Fed. 777), from which decree an appeal was taken to this court.

G. M. Lambertson, for appellant.

Chas. Offutt and C. E. Magoon, for appellees.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.