Whitaker v. McBride

This was an action commenced on June 27, 1898, in the district court of Buffalo county, Nebraska, and terminated by a decision of the supreme court of the state. 65 Neb. 137, 90 N. W. 966. The facts found by the district court are that McBride and Killgore were respectively the owners and in possession of tracts of land bordering on the Platte river, one on the north and the other on the south side thereof. Between these two tracts, and in the main channel of the Platte river, is an island, containing about 22 acres. This island had been in the possession of McBride and Killgore for more than ten years prior to the bringing of the action, but during that time they were contending as to how much of the land each was entitled to. It had never been surveyed by the government.

It appeared in evidence that Whitaker, in 1897, settled on the island, claiming the right to enter the same as a homestead; that application to the Land Department of the government to have the island surveyed was, in 1897, refused, the Department declining to take any action in the matter. These lands were a part of the Fort Kearney Military Reservation, which was surveyed and sold under a special act of Congress, dated July 21, 1876 (19 Stat. at L. 94, chap. 220), the patent to McBride, who had entered his tract as a homestead, bearing date March 28, 1885. There was testimony tending to show that the island was at the time of the survey of the reservation frequently covered with water, and that since then-perhaps owing to the construction of bridges and dykes overflows had been less frequent and the land better adapted to occupation and cultivation. The decree directed by the supreme court was adverse to Whitaker, and quieted the title to McBride and Killgore to the island, giving to each one half.

Messrs. Francis G. Hamer and E. E. Brown for plaintiffs in error.

Messrs. M. P. Kinkaid, E. C. Calkins, and H. M. Sinclair for defendants in error.

Mr. Justice Brewer delivered the opinion of the court: