Tarpey v. Andrew Madsen

This case comes on error to the supreme court of the state of Utah, and involves the title to the S. W. 1/4 of section 29, township 11 north, of range 2 west. This tract is within the place limits of the grant to the Central Pacific Railroad of California. The map of definite location of that part of the road opposite this land was filed and approved by the Secretary of the Interior on October 20, 1868, and the entire road was constructed and accepted prior to 1870. The land is not mineral nor swamp land, nor was it returned or denominated as such; was agricultural in character; and at the date of the filing of the map of definite location there was nowhere any record evidence of a private claim. At that time no local land office had been established in the district in which this land is situated. Such office was opened some time in April or May, 1869.

On May 29, 1869, this declaratory statement was filed:

Declaratory statement for cases where the lands areno t     subject to private entry.

I, Moroni Olney, of Box Elder county, Utah territory, being a     citizen of the United States and the head of a family, have      on the 23d day of April, 1869, settled and improved the S. W.      1/4 of section 29, township 11 north, of range 2 west, in the      district of lands subject to sale at the land office in Salt      Lake City, Utah, and containing 160 acres, which land has not      yet been offered at public sale, and thus rendered subject to      private entry, and I do hereby declare my intention to claim      said tract of land as a pre-emption right under the provisions of      said act of 4th September, 1841.

Given under my hand this 29th day of May, 1869.

(Signed) Moroni Olney.

In the presence of—

Abraham Hunsaker.

Nothing further was done by Olney. He abandoned the land, and nothing appears to have been heard of him since the date of the entry. On June 20, 1896, Andrew Madsen, the defendant in error, who alleged that he had been a settler and in occupation of the tract since 1888, filed a homestead entry thereof in the local office. A contest had previously and in 1893 been instituted between the railroad company and Madsen, which was heard and decided by the register and receiver, whose decision was affirmed by the Commissioner of the General Land Office, the finding of the register and receiver, as appears from the record in this case, being—

'We find that the tract in question, which is the S. W. 1/4 of section 29, township 11 north, of range 2 west, of the Salt Lake meridian, was settled upon and occupied and claimed by a qualified entryman, to wit, Moroni Olney, prior to October 20, 1868, which therefore excepted the land from the operation of the grant of Congress to the Central Pacific Railroad Company.'

A certified copy of that decision in full was filed by counsel for defendant in error on the hearing in this court, and that certified copy reads as follows:

'This case arises upon an application to enter a tract of land covered by a railway selection which it is sought to cancel, for the reason that a valid settlement had been made on the land prior to the date of the attachment of the grant to the railway company.

'Our decision is that the motion of the Central Pacific Railway Company to strike out, dismiss, and expunge the depositions from the records should be denied. We therefore find the issues in favor of Andrew Madsen, and that the tract of land in dispute was reserved and excepted from the grant to the railroad company because, 1st, a pre-emption claim had attached to the land in dispute at the time the line of said road was definitely fixed.

'2d. There was a qualified pre-emption claimant upon the land at that time, which brought it within the first portion of the excepting clause of the act of 1864, which provides that any lands granted by that act, or the act to which it is an amendment, shall not defeat or impair any pre-emption claim.

'3d. On the 20th day of October, 1868, the land in dispute contained the improvements of a bona fide settler, which also excepted the land from the provisions of the grant.

'We further find that Central Pacific Railway selection No. 3 should be canceled as to the tract in dispute, and that Andrew Madsen should be permitted, if he so desires, to make pre-emption entry covering this land.

'We decide that he should be permitted to enter the land under the pre-emption law, because his right to do so, i. e., his settlement upon the land, was initiated long prior to the act of March 3, 1891, repealing the pre-emption law, which repealing act expressly excepted all bona fide claims lawfully initiated before the passage of the act.'

After the decision of the Commissioner affirming that of the register and receiver, the entry was made and a patent was issued to Madsen.

Prior thereto and on January 12, 1894, this action was brought in the fourth judicial district of the territory of Utah, county of Box Elder, by the plaintiff in error, grantee from th r ailroad company, to establish his title to the tract and to recover possession. In the trial court, after the issue of the patent and the admission of Utah as a state, a decree was entered in favor of the defendant. The case was taken by appeal to the supreme court of the state, and by that court the decree of the district court was affirmed (17 Utah, 352, 53 Pac. 996), to review which decree this writ of error was brought.

Messrs. L. E. Payson, Lindsay R. Rogers, and ''Wm. T. S.C.urtis'' for plaintiff in error.

Mr. B. Howell Jones for defendant in error.

Mr. Justice brewer delivered the opinion of the court: