Whitney v. Taylor

Ejectment by Joel Parker Whitney against Frank C. Taylor. There was a judgment for defendant, and plaintiff brings error.

The controversy in this case is in respect to the title to the S. E. 1/4 of section 33, township 12 N., range 7 E., Mount Diablo meridian, in the state of California. The land is within the granted limits of the Central Pacific Railroad Company (12 Stat. 489), and the plaintiff claims under and by virtue of mesne conveyances from that company. The company filed its map of definite location on March 26, 1864, and fully constructed its road by the 10th of July, 1868. It demanded, but never received, a patent.

The title of the defendant rests on the following facts: On May 28, 1857, one Henry H. Jones, having paid the fees required by law in such cases, filed his pre-emption declaratory statement in the land office having jurisdiction over the premises, which declaratory statement was in the words and figures following:

'I, Henry H. Jones, of Placer county, being an American citizen, over the age of twenty-one years, and a single man, have, on the 16th day of January, 1854, settled and improved the southeast quarter of section No. thirty-three (33) of township No. twelve north (12 N.), of range No. seven east (7 E.), Mt. Diablo meridian, in the district of lands subject to sale at the land office at Marysville, California, containing one hundred and sixty 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 the said tract of land as a pre-emption right under the provisions of an act of congress of 3rd day of March, 1853.

'Witness my hand, this 22nd day of May, A. D. 1857.

Henry H. Jones.

'In presence of V. E. Remington.'

The filing of this statement was duly noted in the proper volume of tract books in the land office, and was the only record claim to the premises prior to the time when the line of the Central Pacific Railroad was definitely fixed. The government survey was made intermediate the e ttlement by Jones, in 1854, and the filing of this statement. On April 18, 1856, a return of the official plat of such survey was made by the surveyor general for the state of California to the general land office at Washington, and during the same year a duplicate copy thereof was filed in the local land office. By such survey and return all the land in the township, including the premises in question, was ascertained and returned as agriculatural and not mineral or swamp land, and not embraced in any government reservation. On June 30, 1858, the president issued his proclamation for the sale of lands in that land district, this tract included, naming February 14, 1859, as the time for the opening of the sale, and notifying all pre-emption claimants that their rights would be forfeited unless prior to such date they should establish their claims and pay for the lands they had given notice of their intention to pre-empt. The proclamation further declared that 'no mineral lands or tracts containing mineral deposits are to be offered at the public sales, such mineral lands being hereby expressly excepted from sale or other disposal pursuant to the requirements of the act of congress approved March 3, 1853.' The land officers under this authority withheld from offer and sale all of section 33, stating in their report, dated March 13, 1859, that the land was reserved as mineral land.

Some time after the filing of the map of definite location, the railroad company commenced proceedings against Jones to have his declaratory statement canceled. The decision of the local land officers, adverse to Jones, was transmitted to the commissioner of the general office, who, on December 23, 1886, affirming their decision, held that, 'at the date when the route of the C. P. R. R. Co. was definitely fixed, a pre-emption claim had attached thereto (that of Jones), and, as the grant to said company expressly provided that lands to which a pre-emption claim had not attached were granted, it follows that lands to which such a claim had then attached were not granted. Railway Co. v. Dunmeyer, 113 U.S. 629, 5 Sup. Ct. 566, and U.S. v. Union Pac. R. Co., 12 Copp. Pub. Land Laws, 161. That Jones' claim has been found to have been abandoned or invalid cannot operate to the railroad company's advantage, for the granting act did not provide that lands to which an unabandoned or valid pre-emption claim may not have attached were granted, but only that lands to which a pre-emption claim may not have attached were granted. The claim of Jones had attached when the railroad was definitely located, and, whether valid or invalid, excepted the land from the grant. The tract in question is therefore held to be subject to disposal as public land.'

This decision was affirmed by the secretary of the iuterior on July 17, 1888. On August 28, 1888, the defendant made entry of the premises under the homestead laws of the United States. Subsequently, he commuted such homestead entry under section 2301, Rev. St., made his final proofs, paid the sum of $400, and obtained the government receipt therefor. With reference to the occupation and improvement of the premises by Jones this is the finding of the trial court:

'That Jones, from the time that he alleged settlement, in 1854, up to about 1859, cut some hay off from about four acres of the land in controversy, which he had inclosed with a brush fence. Jones cut off the brush on the ground in controversy to enable him to make the fence. At that time the country was open, and Jones pastured his cattle and sheep on the land in controversy, as well as over the surrounding country, but he never settled upon the land in controversy. He lived on section 4 adjoining. At the time of Jones' settlement the lines of survey were not generally known, Jones subsequently left the country to visit England about 1859, the exact date not being fixed, and never returned. His record filing remained intact on the records of the land office until canceled, as hr einbefore stated.'

Upon the foregoing facts, the circuit court held that the land in controversy was at the time of defendant's homestead entry part of the public domain of the United States, and subject to disposal as public land, and, upon such conclusion, entered judgment in favor of the defendant. 45 Fed. 616.

B. E. Valentine, for plaintiff in error.

C. W. Holcomb and Wm. J. Johnston, for defendant in error.

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