United States v. Schurz

ERROR to the Supreme Court of the District of Columbia.

This is a petition for a mandamus, filed in the Supreme Court of the District of Columbia, Oct. 11, 1879. It alleges that the relator, Thomas McBride, was, in 1862, possessed of all the qualifications necessary to entitle him to pre-empt one hundred and sixty acres of the public lands of the United States; that he, in that year, settled upon a tract of public land known as the S. 1/2 of the N.E. 1/4 and lots 1 and 2 of section 6, T. 3, S. of R. 5 W., situate in the county of Tooele and Territory of Utah, containing a little less than one hundred and sixty acres, with intent to appropriate it under the laws of the United States, and has continuously inhabited, occupied, and cultivated it; that he, May 31, 1869, in due form and time, made, at the land-office in Salt Lake City, a homestead entry of it; that he occupied, cultivated, and resided upon it for more than five years thereafter, and, June 15, 1874, made due proof thereof, paid the fees, and received a final certificate therefor; that his said proofs and papers were duly forwarded to the Commissioner of the General Land-Office, who found them to be in all respects in compliance with law, and such as to entitle the relator to a patent; that, in accordance with that finding, a patent for the tract was, Sept. 26, 1877, duly signed, sealed, and, by the Recorder of the General Land-Office, countersigned and recorded in the proper land records of the United States; that it was, Oct. 3, 1877, transmitted by the commissioner to the local land-officers at Salt Lake City, with instructions to deliver it to the relator, and was received by them; that he appeared at said land-office, and demanded of them to deliver the patent to him; that they refused to do so, because they had been instructed by the commissioner, Oct. 14, 1877, to return it; that it was so returned Oct. 22, 1878, and was then in the Department of the Interior, subject to the control of the Secretary of the Interior; that Carl Schurz is such Secretary; and that the relator, Oct. 6, 1879, demanded of him, at his office in the Department of the Interior, the delivery of said patent, but the Secretary, on the tenth day of that month, absolutely refused to deliver it. The petition prays that the writ of mandamus issue, directing the Secretary to deliver the patent to the relator.

The relator, pursuant to leave of the court, filed, Oct. 21, 1879, a supplemental petition.

The Secretary filed his answer on the twenty-fourth day of that month, setting up that the lands claimed by the relator were, at the time of his entry, within the incorporated limits of the city of Grantsville; that, without knowledge by the register of the local land-office that the tract was within those limits, the entry was admitted; that in 1874 the relator made final proof thereof; that in February, 1877, the mayor and corporate authorities of Grantsville applied to the register to make entry of its town site under the act of March 2, 1867; that their application included the land in question; that upon his refusal to permit the entry while the land was included in that of McBride, application was made, Feb. 24, 1877, to have the entry cancelled, as illegally and improvidently allowed, which application was duly forwarded by the register to the Commissioner of the General Land-Office; that prior to regular action thereon a patent was prepared, in September, 1877, signed and sealed, and transmitted on the third of the following month to the register, for delivery to McBride upon the surrender of the duplicate receipt; that afterward, upon taking up the record of contest for examination, the commissioner, discovering that the patent had been improvidently prepared and transmitted, ordered its recall; that it was thereupon returned by the register, no demand having been made for its delivery at the date of the receipt of the commissioner's instructions; that, upon the examination of the record of contest, the claim of McBride to the land was rejected by the commissioner, which rejection was, on appeal by the relator, affirmed by the acting Secretary of the Interior, and afterward by the respondent on review. The undelivered patent was then regularly cancelled, together with the entry upon which it was based.

The answer of the Secretary was accompanied by certain exhibits. The relator filed a replication thereto.

The following agreed statement of facts was signed by counsel for the respective parties:-

'Agreed Statement of Counsel.

'In the Supreme Court of the District of Columbia, this fourteenth day of November, 1879.

'THE UNITED STATES, ex relatione THOMAS MCBRIDE,}

vs.}

CARL SCHURZ, Secretary of the Department of the Interior.}

At law. No. 21,200.

'Be it remembered that on the hearing of this cause before the Supreme Court of the District of Columbia, sitting in general term, on the twenty-eighth day of October, 1879, it was conceded by both parties that all the allegations of the original petition were true, except the one that the premises named in the petition were in 1862 subject to pre-emption filing or homestead entry.

'It was also conceded that the case relating to said premises, set out in the answer of respondent, had been appealed from the decision of the Commissioner of the General Land-Office to the Secretary of the Interior, and was pending before the said secretary at the time the demand for said patent was made on him, as set forth in the said original petition of relator, and for some days thereafter, and that at the time of said demand, and for some days thereafter, the said patent was, with the papers in said case, as an exhibit in said case, in the office of the Secretary of the Interior, and was not in the office of the Commissioner of the General Land-Office.

'It was also conceded that the incorporated town of Grantsville, set forth in the answer of the respondent, was in fact the incorporated city of Grantsville, and that it was incorporated by the territorial legislature of Utah on the twelfth day of January, 1876, and that said act should be treated as referred to and made a part of this case.

'All other matters in said case stood upon the original and supplemental petition, the answer of respondent, and the replication thereto. There was no other or further proof or evidence offered by either party.

'One of the rules of this court is as follows:- '33. The joinder in issue may be—

"The plaintiff joins issue upon the defendant's first plea.

"The defendant joins issue upon the plaintiff's replication to the first plea.'

'And this form of joinder shall be deemed to be a denial of the substance of the pleading to which it relates, and an issue thereon.

'And thereupon the said court, upon the tenth day of November, 1879, upon the evidence and pleading aforesaid, gave judgment for the said respondent.

'The foregoing facts are stipulated to be a full and true statement of this case, and made part of the record therein.

'Nov. 14, 1879.

'W. H. SMITH,

'Att'y for Plff.

'U.J.BAXTER,

'Of Counsel for Respondent.