UNITED STATES SUPREME COURT DECISIONS ON-LINE

By the Act of July 2, 1864, c. 217, a grant of public land was made to the Northern Pacific Railroad Company to aid in the construction of its railroad and telegraph line. A small tract of this grant is the subject of this action of ejectment. In October, 1868, one Scott made a preemption declaratory statement regarding this tract, and settled upon it in 1869, but abandoned it in the same year and never returned. In October, 1872, he filed an amended statement excluding the land in controversy. On February 21, 1872, the company filed its map of general route through Montana. On the 22d of April, 1872, the Commissioner of the General Land Office, by direction of the Secretary of the Interior, transmitted to the local land office in Montana a diagram showing the location of the road in the district in which the subject of controversy was situated, and directed the withholding from sale or location, preemption or homestead entry, of the odd-numbered sections within forty miles of the general route of the railroad. On May 3, 1872, McLean, a citizen of the United States, duly qualified to enter land, made a homestead entry of the tract in controversy in this case. On May 6, 1872, the diagram and order sent April 22 were received at the local land office and filed there. In the autumn of 1872, McLean placed a small building on the land in which he spent his nights until the spring of 1873, when he removed and never after resided there or made improvements. Proceedings were taken to cancel his entry, and it was cancelled in September, 1879. In July, 1882, the plat of definite location was filed, and the land in controversy is within forty miles of the general route, and within twenty miles of the line of definite location. In August, 1882, McLean died, leaving a will devising this land to his widow, which was duly probated. In March, 1883, McLean's widow applied, as his widow under the Act of June 15, 1880, c. 227, 21 Stat. 237, to purchase the tract.

Held:

(1) That whatever rights Scott might have acquired by his original declaratory statement, were lost by his amended declaratory statement.

(2) That McLean had all the rights which attached to a valid entry, and might have proceeded under the Act of June 15, 1880, c. 227, 21 Stat. 237, to make the purchase thereby authorized.

(3) That his widow, having had this tract devised to her by her husband's will, duly probated, was entitled to purchase the tract as the devisee of her husband, although her application for it was made as his widow. clubjuris

Page 175 U. S. 565

This was an action of ejectment commenced on May 8, 1891, in the Circuit Court of the United States for the District of Montana by the railroad company, plaintiff in error to recover possession of the south one-half of the northwest one quarter of section 17, township 10 north, range 3 west of the principal meridian of Montana. A trial was had which resulted in a judgment for the plaintiff. 53 F. 48. This judgment was reversed by the Court of Appeals for the Ninth Circuit, 58 F.8d 0, and the case remanded for a new trial. The new trial was had before the circuit court upon an agreed statement of facts, and resulted in a judgment for the defendants, which judgment was affirmed by the court of appeals, and thereupon the plaintiff sued out this writ of error.

The important facts are these: on February 21, 1872, the railroad company filed in the office of the Commissioner of the General Land Office its map of general route through the then Territory (now state) of Montana. On April 22, 1872, the Commissioner, by direction of the Secretary of the Interior, transmitted to the local land office in Montana a diagram showing the portion of the line of general route extending through that district, and directed the withholding from sale or location preemption or homestead entry, the odd-numbered sections within forty miles of such general route. This diagram and order were received and filed in the local office on May 6, 1872. On May 3, 1872, three days before the order was received at the local land office, William McLean, a citizen of the United States and duly qualified to enter the land, made a homestead entry on the tract in controversy. In that fall, he moved a small building onto the land and spent his nights there until the spring of 1873, when he married, removed from the premises, and never thereafter resided or made any improvements thereon. Proceedings were taken to cancel his homestead entry, and upon September 11, 1879, it was cancelled. On July 6, 1882, the railroad company filed a plat of the definite location of that portion of its line adjacent to the premises, and thereafter duly constructed its road on that line. The land is within forty miles of the line of general route, and also within twenty miles of the line of definite location and clubjuris

Page 175 U. S. 566

construction. McLean died in August, 1882, leaving a will by which he devised the tract to his widow. This will was duly admitted to probate.

On April 21, 1876, Congress passed an act, 19 Stat. 35, c. 72, the first section of which is --

"SEC 1. That all preemption and homestead entries, or entries in compliance with any law of the United States, of the public lands, made in good faith, by actual settlers, upon tracts of land of not more than one hundred and sixty acres each, within the limits of any land grant, prior to the time when notice of the withdrawal of the lands embraced in such grant was received at the local land office of the district in which such lands are situated, or after their restoration to market by order of the General Land Office, and where the preemption and homestead laws have been complied with, and proper proofs thereof have been made by the parties holding such tracts or parcels, they shall be confirmed, and patents for the same shall issue to the parties entitled thereto."

And on June 15, 1880, it passed another act, 21 Stat. 237, c. 227, the second section of which is --

"That persons who have heretofore under any of the homestead laws entered lands properly subject to such entry, or persons to whom the right of those having so entered for homesteads, may have been attempted to be transferred by bona fide instrument in writing, may entitle themselves to said lands by paying the government price therefor, and in no case less than one dollar and twenty-five cents per acre, and the amount heretofore paid the government upon said lands shall be taken as part payment of said price: Provided, this shall in nowise interfere with the rights or claims of others who may have subsequently entered such lands under the homestead laws."

On March 15, 1883, the widow of William McLean applied under this last act for the purchase of the tract. Her application was made as widow, and not by virtue of any right given by the will of her husband. Her application was contested by the railroad company, but sustained by the Commissioner of the General Land Office, and afterwards by the clubjuris

Page 175 U. S. 567

Secretary of the Interior, and on his decision a patent was duly issued to her. Whereupon this suit was brought to test the title conveyed by such patent.