Brown v. Corson

19 P. 66, 16 Or. 388, 1888 Ore. LEXIS 65

• Court: Oregon Supreme Court
• Decided: June 7, 1888
• Status: Published

Opinions

Strahan, J.

The plaintiffs prosecute this action against tlie defendants to recover two thousand two hundred dollars and interest, as damages for the alleged breach of a covenant in a deed made by the defendants to plaintiffs^ The deed containing the covenant declared on purports to convey to the plaintiffs the west half of the southwest quarter of section 5, T. 1 S., R. 3 E., in Multnomah County, for the expressed consideration of two thousand two hundred dollars. By the terms of the deed the defendants covenanted with the plaintiffs, “and their legal representatives forever, that said real estate is free from all encumbrances, and that we will, and our heirs, executors, and administrators shall warrant and defend the same to the said Hiram Brown and C. H. Page, their heirs and assigns forever, against the lawful claims and demands of all persons whomsoever.” The breach alleged in substance is that the defendants had not at the time of the execution of said deed, or ever at anytime, a good and sufficient or any title to said real property, or any part thereof, and the plaintiffs have since been ousted and dispossessed of said property by a person having lawful right and title thereto. It is then alleged that at the time said deed was executed the United States owned said lands, and had a fee-simple title thereto; that in August or September, 1886, and prior to September 4, 1886, the said premises being then subject to pre-emption under the laws of the United States, one Karnstad being a person then entitled to take said land under the pre-emption laws, duly entered and settled upon the same under the said pre-emption law with the intention of taking the same as a pre-emption claim, and ousted and dispossessed the plaintiffs from said land, and ever since have and now do retain the possession of the whole thereof, and exclude the plaintiffs therefrom; that on September 4, 1886, said Karnstad duly filed with the register of the land office of the United States at Oregon City, Oregon, his written statement describing the said land, and declaring his intentions to claim the same under the pre-emption laws, having first made the oath required by law in that behalf upon the said register, and said Karnstad is now in the possession of the whole of said premises, rightfully aud lawfully claiming the same under the said pre-emption laws. The amended answer denies the allegations of the complaint, except the execution of the deed.

As a separate defense the amended answer alleges in substance that the premises described in the deed were within the twenty-mile limit of the withdrawal of February 16, 1870, for the benefit of the Oregon and California Railroad Company, whose right to said land attached October 29, 1869, by virtue of the Act of Congress of July 25, 1866, and of a subsequent act of June 25, 1868; and that by virtue of said acts the said O. & C. R. R. Co. became the owners of said land in fee-simple on the twenty-ninth day of March, 1870; that on the day last aforesaid said O. & C. R. R. Co., for the consideration of five hundred dollars, sold said land to the defendant E. O. Corson and gave him a certificate of such sale, which certificate with said land the defendant sold and assigned to the plaintiffs for nine hundred and fifty dollars, and no more, and on the eighteenth day of April, 1882, said railroad company conveyed said premises to the plaintiffs by deed. It is also charged in the answer that Karnstad entered on said premises by the procurement of the plaintiffs for the purpose of enabling them to sue the defendants on the covenants in said deed, and that Karnstad is in the possession of said lands as the agent and servant of the plaintiffs. Considerable documentary evidence both from the local land office at Oregon City and the general land office was introduced. The plaintiffs to prove title out of the defendants when they made the deed, and to show that the O. & C. R. R. never acquired title to said lands by virtue of the grant made for its benefit of July 25, 1866, offered in evidence pages 160 and 161 of the register of declaratory statements on file in the land office at Oregon City.

The caption to this statement is as follows: “Register of declaratory statements under act of Congress of September 4, 1841, and amendments thereto.” Opposite the numbei; 650 and under the head of “name” is “Joseph Ross”; in the column headed “date of settlement” are the words “20 May, 1859”; in the column headed “when filed” are the words and figures “ 21 May, 1859 ”; in the column headed “ part of section or legal subdivision ” are the figures and letters, “ W. of S. W. J, section 5, and E. J, S. E. ¿, section 6,1 S., 3 E.” It also appears from a letter written by the commissioner of the general land office, under date of June 17, 1880, to the register and receiver at Oregon City, that on April 23, 1877, the defendant E. O. Cor-son made application to enter a part of the land described, and made proof and payment and obtained certificate No. 1538. In this letter the commissioner says: “ Under the present rulings of this office, said homestead entry having been made subsequent to the date of the withdrawal of the land for railroad purposes, did not affect the status of the tract in question. Mr. Corson’s application to enter the W. J of the S. W. i of section 5 must be rejected, as the record shows that at the time of the withdrawal the tract was publio land.” After this ruling by the department that at the time of the withdrawal the land was public land, Corson purchased it of the railroad company.

The act of Congress under which the defendant Corson claimed to have derived title through the railroad company is the act approved July 25,1866, entitled, “An act granting lands to aid in the construction of a railroad and telegraph line from the Central Pacific Railroad in California to Portland in Oregon.” By the second section of the act it is provided “that there be and hereby is granted to the said companies, their successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line .... every alternate section of public lauds, not mineral, designated by odd numbers to the amount of twenty alternate sections per mile (ten on each side) of said railroad line; and when any of said alternate sections or parts of sections shall be found to have been granted, sold, reserved, occupied by homestead settlers, pre-empted, or otherwise disposed of, other lands designated as aforesaid shall be selected by said companies in lieu thereof under the direction of the secretary of the interior, in alternate sections, designated by numbers as aforesaid, nearest to and not more than ten miles beyond the limits of said first-named alternate sections.....” The main question at issue, therefore, seems to be, whether or not the land described in the deed was publio land at the time the grant to the railroad took effect. On this question and in respect to this identical tract of land the commissioner of the general land office has decided both ways.

In Corson’s contest with the railroad company, he decided it was publio land where the railroad company attached, and in the contest of the Railroad Company v. Karnstad, it was held in effect that at the time the railroad grant took effect the same land was not publio land. These decisions are in conflict and seem to be entirely irreconcilable. Nor is it necessary that we should attempt to reconcile them. If the lands described “had been granted, sold, reserved, occupied by homestead settlers, preempted, or otherwise disposed of” prior to the time the company’s rights attached under the grant, then such lands were excepted out of the grant, and the railroad never acquired any rights to them whatever. Without referring to the decisions of the land department to that effect, this principle seems to be clearly enunciated and decided in Kansas Pacific Railway Company v. Dunmeyer, 113 U. S. 629.

The only evidence offered that said lands had been pre-empted at the time the rights of the railroad company attached is the certified “copy of the form of pages 160 and 161 of the register of declaratory statements on file” in the Oregon City land office, which has already been referred to. It seems to me this paper does not tend to prove that the land described in the deed had been pre-empted. It contains none of the facts essential to be shown to entitle a settler to a pre-emption. The qualifications of a pre-emptor are prescribed by section 2259 of the Revised Statutes of the United States, and are briefly: He must be the head of a family, or widower, or single person over the age of twenty-one years, and a citizen of the United States, or ho must have filed a declaration of intention to become such as required by the naturalization laws; he must make a settlement in person on the public lauds subject to pre-emption, and inhabit and improve the same, and he must erect a dwelling thereon.

By section 2260 certain persons are rendered incapable of acquiring any right of pre-emption under the laws of the United States. These are: (1) Any person who is the proprietor of three hundred and twenty acres of land in any State or Territory; or (2) any person who quits or abandons his residence on his own land to reside on the public lands in the same State or Territory.

Section 2262 of the Revised Statutes provides: “Before any person claiming the benefit of this chapter is al lowed to enter lands, he shall make oath before the receiver or register of the land district in which the land is situated, that he has never had the benefit of any right of pre-emption under section 2259; that he is not the owner of three hundred and twenty acres of land in any State or Territory; that he has not settled upon and improved such land to sell the same on speculation, but in good faith to appropriate it to his own exclusive use; and that he has not directly or indirectly made any agreement or contract in any way or manner with any person whatsoever, by which the title which he might acquire from the goverument of the United States should inure in whole or in part to the benefit of any peason except himself. .... And it shall be the duty of the officer administering such oath to file a certificate thereof in the public land office of such district, and to transmit a duplicate copy to the general land office, either of which shall be good and sufficient evidence that such oath was administered according to law.”

The question, therefore, arises whether or not there was any evidence submitted upon which to base the instruction asked by the appellants. That instruction is as follows: “That said admission of the parties and said testimony, as a matter of law, establishes the fact that the said land was not embraced in the grant to the Oregon Central Railroad Company by said act of Congress, and that the O. & C. R. R. Co. acquired no interest in said land, and that the deed from the O. & C. R. R. Co. to plaintiffs passed no interest in said land to plaintiffs.”

If the evidence offered proved that at the time the railroad grant took effect a valid pre-emption existed on said lands, then, clearly, the instruction asked should have been given. On the other hand, if such was not the effect of the evidence offered, the court did not err in refusing said instruction. As has been shown, the laws of the United States have fully and clearly defined who may take a pre-emption, who shall not, and the manner in which a right to the land shall be acquired. A preemption is a right derived wholly from the statute, and in order to acquire such right, a substantial compliance with the statute must be shown. In no other way could such right exist or be acquired. In other words, unless the statute granting preemptions to actual settlers on the public lands was substantially complied with by Ross, it cannot be said that the lands mentioned in the deed had been pre-empted at the time the railroad company’s grant attached, and unless such lands had been so pre-empted they were not taken out of the terms of the grant and passed to the company.

It is useless to' point out or enumerate the particulars in which the papers offered fail to show a compliance with the statute. They are entirely silent on each and every essential requisite. I do not think that an exact and technical compliance was necessary; but a substantial compliance, one that showed that the conditions existed which would enable the pre-emptor to acquire the land under the law, and that he had performed at least enough on his part to give him some inchoate right to the land. If the papers existed which showed a right in Boss they ought to have been produced, or if lost that fact could have been proven, and secondary evidence'of their contents could have been offered. But nothing of this kind was done or attempted. All we have is the copy of the form of pages 160 and 161 of the “registry of declaratory statements on file.” This I suppose to be a mere memorandum made by some clerk in the office, or by the register, of the fact that a declaratory statement had been filed. But why not produce the declaratory statement itself, or a copy of it.

It would surely be better evidence of the existence of this pre-emption claim than the memorandum offered. And for the like reasons, in the absence of record evidence of the existence of a valid pre-emption claim on the l.and described in the deed under the admissions contained in the record, the said land passed to the railroad company under their grant, and the court did not err in so declaring to the jury. The plaintiffs do not allege or claim that they were actually evicted or ousted by judicial process. Their contention is, that at the time the covenant sued on was made, there was a paramount title outstanding in the United States; that Karnstad had succeeded to that title, and that they have succeeded him. This, I think, under the authorities, they might do, if he had acquired a title better than plaintiffs’ title, but they must by their proof negative the existence of title in the defendants when they made the covenant. In addition to this, they must show that such outstanding paramount tide was asserted.

It is true when such title is in the United States as against one having no right, the laws of the United States may be a sufficient assertion of such hostile title; but I doubt it, where the title of the United States is attempted to be acquired by a pre-emptor, and that through and by the assistance of one of the covenantees in the deed. In this case, one of the plaintiffs testified that he paid the register and receiver’s fees at the land office for Guilder Karnstad, and assisted him with money in the erection of a house upon said land, and that what he did in assisting Karnstad in taking said claim was wholly a matter of friendship to said Karnstad, and for no other jiurpose. This looks more like the plaintiffs rather invited and aided the assertion of said claim, than the unwilling and reluctant surrender to a bona fide outstanding superior title. But the view taken renders the consideration of this aspect of the case unnecessary.

The judgment must therefore be affirmed.

Lord, C. J., does not concur.