Sanborn v. Knight

So far as the opinion of the court may be read as holding that the railroad grant attached to the land in question because Joseph La Pointe did not do those things requisite to make his pre-emption filing 'effectual, independent of the withdrawal of the filing by taking other lands in lieu of those covered by it, I cannot concur. Probably it was not intended to say that the mere neglect by La Pointe to comply with the pre-emption law, so long as his filing was actually of record, would leave the land open to the grant. But if so intended, it is, in my view, directly contrary to the decision of the supreme court of the United States in Whitney v. Taylor, 158 U. S. 85, where Mr. Justice Brewer, discussing the subject, said, in effect, that wherever on the records of the local land office, there was a *223claim on the part of an individual under the homestead or pre-emption laws, recognized by the officers of the government, and not canceled or set aside, the tract in respect to which such claim existed was excepted from a railroad land grant containing the ordinary exception clause, notwithstanding the claim was not enforceable and was subject to cancellation by the government, either upon its own suggestion or upon the application of other parties; and further, in effect, that the existence of a homestead entry, or a declaratory statement under the pre-emption laws, operated to take the particular land affected thereby out from the mass of public lands and give it such private character as to except it from the operation of a railroad grant.

I concur fully with what is said by the court to the effect that the taking of other lands by La Pointe, after the filing of his declaratory statement, and in lieu of the lands described therein, before the withdrawal of lands for the purposes of the railroad grant, effectually canceled such declaratory statement, and so restored the public character of the lands described therein as to leave them subject to the operation of such grant.

The claim that the grant of May 5, 1864, through which the defendant claimed title to the single tract of land in question, under the Wisconsin Central Railroad Company, never attached to the land, by reason of the declaratory statement of Joseph LaPointe, filed March 10, 1856, *221is wholly destitute of merit. This claim or filing does not appear to have been pursued or acted on by any one. It clearly appears that La Pointe never made any settlement whatever upon the land mentioned in it, never inhabited or improved it, or did any work on it, and never erected any dwelling thereon. It appears that he never did anything upon or in relation to the land to fulfill the requirements of the law. The clear and satisfactory evidence produced at the trial disposes of all contention or room for it founded on the document in question. After filing this document, and during the same spring, La Pointe wholly abandoned his pretended settlement and alleged pre-emption claim. He moved across the Chequamegon Bay, taking with him his family, and made there an actual settlement and entry upon the northwest quarter of section 17, township 49, range 4 W., on the Sioux river, and then filed a subsequent or amended declaratory statement, May 23, 1856, alleging, in accordance with the truth, settlement on the 20th of that month, and afterwards, on June 29, 1857, proved up, paid the purchase money for the quarter section named, and obtained his patent for that land as a pre-emptor. This was an absolute abandonment and surrender of all pretensions or claims under the declaratory statement filed on March 10, 1856, and operated as a cancellation or relinquishment of it. The law allows but one pre-emption right, and but one pre-emption claim also, to one person. R. S. of U. S. sec. 2261. The second claim, however, is allowed in proper cases, and it is sometimes called an amendment of the first. In re Young, 1 Land Dec. Dep. Int. 443; In re Walsh, 6 Land Dec. Dep. Int. 168. It seems impossible to mistake the effect of the second proceeding upon La Pointe’s first declaratory statement. It utterly destroyed it, substituting for the land described in it an entirely different tract. Amacker v. N. P. R. Co. 15 U. S. App. 279, 58 Fed. Rep. 850.

We think, therefore, that the point of exception from the *222grant of lands in question by reason of the declaratory statement of Joseph La Pointe of March 10, 1856, wholly fails, and that the plaintiff and F. L. Sanborn, by the conveyance to them from the defendant, acquired a valid title and became lawfully seised of the premises in question in fee simple before the plaintiff began the present action. No cause of action, therefore, for breach of the covenant of seisin existed against the defendant. The defendant’s grantees obtained possession or seisin in fact of the premises, and possessed and enjoyed them under their deed. They had not, when this action was commenced, been evicted by paramount title, either actually or constructively, from any part of the premises, and no breach of the covenant of seisin contained in the defendant’s deed to the plaintiff and F. L. Sanborn had occurred.

For these reasons, the plaintiff was not entitled to recover, and the verdict in favor of the defendant was rightly directed, and judgment given in his favor.

By the Court.— The judgment of the circuit court is affirmed.