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OSBORN V. FROYSETH, 216 U. S. 571 (1910)

U.S. Supreme Court

Osborn v. Froyseth, 216 U.S. 571 (1910)

Osborn v. Froyseth

No. 396

Submitted January 5, 1910

Decided March 14, 1910

216 U.S. 571


A rejection of a homestead entry on the ground that the land was not open for settlement does not defeat the entry if the Secretary had no authority to withdraw the land from settlement. Sjoli v. Dreschel, 199 U. S. 564.

In an action of ejectment by a railroad company claiming lieu lands under its grant, against a homesteader, the rule applies that the plaintiff must recover on his legal title and not upon defects in defendant's entry; the question is whether the entry was properly initiated before the selection, and not whether it had actually ripened into legal title.

In a contest between a bona fide homesteader and one claiming under selection of lieu land, the former has the better claim.

The right of a homesteader settling in good faith relates back to the date of settlement.

Where a railroad company fails to comply with the statutory requirements in order to authorize selection of lieu lands in the indemnity limits, and its selection is rejected, a subsequent selection does not relate back, but preemption or homestead rights duly initiated before the second selection have priority.

Land that is actually occupied by a qualified entryman with intent to claim it as a homestead ceases to be public and subject to selection as lieu land, even though there be no record evidence at the time the selection is made.

107 Minn. 568 affirmed.

This was an action of ejectment to recover the Southeast Quarter of Section 7, Township 119, Range 40, in Chippewa County, Minnesota. A jury was waived and the case tried by the court, which made a finding of facts upon which judgment was entered for the defendant. Upon appeal to the supreme court of the state, this judgment was affirmed.

Page 216 U. S. 572

107 Minn. 568. Thereupon, in due course, this writ of error was sued out by the original plaintiffs.

The plaintiffs claim title under a land grant made by Congress, July 4, 1866, known as the Hastings & Dakota Railway land grant. The premises are not within the place limits of that grant, but are included within the indemnity limits of the line of railroad as located, and were withdrawn from a settlement for the benefit of the grant on July 12, 1866, and again by a modified order of April 22, 1868. On May 26, 1883, the Hastings & Dakota Railway Company, for whose benefit the grant was made, and hereafter referred to as the railway company, attempted to select the land in question, together with other lands within the indemnity limits of the grant, but the selection was rejected by the local land office of the district. Upon appeal, this action was affirmed by the Secretary of the Interior on October 23, 1891. This attempted selection was refused because not made in accordance with the rules of the department requiring, as a condition precedent, that there should be furnished by the railroad company a list of the lands lost within place limits for which lands in lieu were selected. On July 22, 1890, under the Land Grant Adjustment Act of March 3, 1887, 24 Stat. 556, c. 376, said land grant was adjusted in the Land Department of the United States, and it was found that there existed a deficiency in the place limits of the grant of 922,182 acres, and that all of the lands within the indemnity limits applicable to cover such loss aggregated less than 100,000 acres. On May 28, 1891, pursuant to instructions from the Secretary of the Interior, the Commissioner of the General Land Office directed the officers of the proper local office that, after giving notice, they should restore to the public domain and open to settlement all the lands in the indemnity limits of said land grant, "not embracing selections heretofore made and applied for by said company."

After the final rejection, on October 23, 1891, of the original selection made in 1883, the predecessor of the plaintiffs in title

Page 216 U. S. 573

made a second selection on October 29, 1891, of the land in suit, together with other lands, which last selection was in due form and in full compliance with the rules of the department, and thereafter, through steps not necessary to be stated, the title acquired by this second selection under said grant was vested in the plaintiffs in error.

The tenth, eleventh, and twelfth findings of fact are in these words:

"Tenth. At the time of said selection, the land in question was not vacant, but was occupied by the defendant, Peter Froyseth, as hereinafter found."

"Eleventh. Said selection was not approved by the Secretary of the Interior until 1901."

"Twelfth. That the defendant, on the 1st day of November, 1888, declared his intention to become a citizen of the United States, and was, after said date, in all respects qualified and entitled to make a homestead entry under the laws of the United States, and, on May 15th, 1889, he settled upon and went into possession of the land in controversy, with intent to enter upon and claim the same as a homestead, and with the view of making it his home, and has continued in possession and resided thereon ever since, and his residence and improvements were at all times sufficient to comply with the requirements of the homestead laws of the United States, and at the time of the commencement of this action, such improvements exceeded in value the sum of seven hundred dollars ($700); that the defendant has never owned or occupied other real estate. That he became a full citizen of the United States on June 9, 1897, and been such citizen ever since. On the 3d day of November, 1891, the defendant offered at the proper land office a homestead entry in due form for said land, which filing was refused by the local land officers solely on the ground that said land was withdrawn from settlement by the executive withdrawal of April 22d 1868, from which refusal the defendant duly appealed, which appeal remained pending in the Land Department

Page 216 U. S. 574

until September 11th, 1894, on which date the rejection of said filing by the local land officers was affirmed. From the decision of the General Land officers the defendant appealed to the Secretary of the Interior, which appeal was pending until the 25th day of January, 1896, when the decision of the General Land Office of September 11th, 1894, was affirmed. That the defendant did all that was in his power to secure the land as his homestead."

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