Gallup v. Northern Pac. Ry. Co.

295 F. 326, 1924 U.S. Dist. LEXIS 1810

• Court: District Court, W.D. Washington
• Decided: January 23, 1924
• Docket: No. 19-E
• Status: Published

Opinion

NETERER, District Judge

(after stating the facts as above). The act under which the scrip was filed provides, among other things, that the land must be “free from.valid adverse claims or not occupied by settlers at the time of such selection.” The issue, therefore, is simple. Was the relation of Pinky to this land on the 29th day of August, 1902, such as to create an adverse right or claim?

There is a distinction between “right” and “claim.” Reed v. Great Northern et al. (Wash.) 218 Pac. 210. The defendant railway company could not, at the time of filing its scrip, confuse its asserted right with a right which might be asserted by the United States; it may not usurp the functions of sovereignty, and assert the right which might be available to the sovereign. This court held in Christie v. Great Northern, filed June 24, 1920, and affirmed in 284 Fed. 702, that:

“The United States might maintain an action under the facts set out, but the plaintiffs may not bring an action by asserting facts which would afford relief to the United States.”

The defendants here may not succeed by asserting facts which would afford relief to the government. Fisher v. Rule, 248 U. S. 314, 39 Sup. Ct. 122, 63 L. Ed. 263.

Undoubtedly the acts of Pinky, of posting notices and placing the improvements on the land, as shown by the evidence, were the assertion of a right; it created a condition. He became in a limited sense a plantér upon the land. The buildings were his property. He had a right to go upon the land. He was in possession of the land as against all except the United States. Settlement and improvement, with intent to enter the land as a homestead, without habitation, initiated a claim or right which segregated the land from entry. This relation attached a claim to the entryman, Pinky, which the defendant railway could not dispute or ignore. Hastings & D. R. R. v. Whitney, 132 U. S. 357, 10 Sup. Ct. 112, 33 L. Ed. 363; Osborn v. Froyseth, 216 U. S. 571, 30 Sup. Ct. 420, 54 L. Ed. 619.

'“Claim” is comprehensive when applied to the relation of men and things, and if the entryman’s conduct was open to inquiry on any feature when the scrip was filed, the selection did not attach. Default on the part of Pinky after the land was segregated by claim and settlement did not subject the land to scrip filing by the defendant company, unless intention to abandon, which had ripened into abandonment, was shown at the time of the filing of the scrip.

Abandonment is more than absence of residence. It has been held to be more than intention. Huffman v. Smyth, 47 Or. 573, S4 Pac. 80, 114 Am. St. Rep. 938, 8 Ann. Cas. 678. Whether the land had been abandoned was an open question of fact. The claim was existent prior to August 29, 1902, and mere absence from September, 1901, until August, 1902, was not sufficient to raise a conclusive presumption of abandonment. The house was maintained. The furnishings were kept and continued. Nothing was removed. Mere absence for the period mentioned did not cancel the claim. R. S. § 2291 (Comp. St. § 4532). Nor did the absence of Pinky’s family from the land create a conclusive presumption of abandonment.

The refusal of a wife to move upon public land does not defeat a qualified entryman’s homestead right. Abandonment was therefore an open question. The claim, after initiation, could not be treated as canceled by the railway company. It could only be canceled by the government at the behest of the next settler. St. P., M. & M. Ry. Co. v. Donohue, 210 U. S. 21, 28 Sup. Ct. 600, 52 L. Ed. 941; Svor v. Morris, 227 U. S. 524, 33 Sup. Ct. 385, 57 L. Ed. 623; K. P. R. R. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566, 28 L. Ed. 1122; Sioux City, etc., Ry. v. Griffey, 143 U. S. 32, 12 Sup. Ct. 362, 36 L. Ed. 64; Bardon v. N. P. R. R. Co., 145 U. S. 535, 12 Sup Ct. 856, 36 L. Ed. 806. The land having been segregated from selection, the scrip of the railway did not attach. The land was therefore open to entry when the plaintiff succeeded to Pinky’s right and actually settled thereon, and his improvements and habitation have been continuous.

The motion to dismiss is denied.