Clark v. Herington
186 U.S. 206 (1902)

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U.S. Supreme Court

Clark v. Herington, 186 U.S. 206 (1902)

Clark v. Herington

No. 223

Submitted April 14, 1902

Decided June 2, 1902

186 U.S. 206

Syllabus

While the two statutes making the Union Pacific Railroad grants did not double the price of the even numbered sections within the place limits, yet that was done by the Act of March 6, 1868, c. 20, 15 Stat. 39, and the even numbered sections within the place limits were from that time not open to selection as indemnity lands.

The act of Congress provides in terms that the sections of land should be subject to entry only under the homestead and preemption laws, and the Land Department had no power to turn one of those sections over to a railroad company.

No title to indemnity lands is vested until an approved selection has been made; up to which time Congress has full power to deal with lands in the indemnity limits as it sees fit.

This is not an action to recover the possession of land or to quiet title thereto, but it is clearly a matter of ordinary judicial cognizance not excluded therefrom.

The contention that plaintiff in error is an innocent purchaser for value was not set up as a defense in the state courts.

On May 20, 1899, Monroe D. Herington, the defendant in error, recovered a judgment in the District Court of Labette County, Kansas, against Lee Clark for the sum of $3,032.28, which judgment was affirmed by the Supreme Court of that state on November 10, 1900. Thereupon the case was brought here on writ of error.

The facts are these: the action was one to recover damages for breach of warranty in the conveyance of a part of section 22, township 15, range 5, in Morris County, Kansas. The tract was outside the place and within the indemnity limits of the land grant made July 26, 1866, 14 Stat. 289, c. 270, to the Union Pacific Railroad Company, Southern Branch, a corporation whose name was subsequently changed to Missouri, Kansas & Texas Railroad Company. The railroad company duly constructed its road, and, failing to obtain with the place limits the full quota of lands granted to it, selected, on October 22,

Page 186 U. S. 207

1877, the tract in controversy among others in lieu thereof. At the time of such selection, the tract was unimproved and without actual occupation. The selection was approved by the Commissioner of the General Land Office, but no patent was issued. On September 5, 1884, the railroad company conveyed the land to Lee Clark. He conveyed by warranty deed. Herington is a subsequent grantee in the chain of title, and is also the assignee from Clark's immediate grantee of all his rights under Clark's deed, including the right to recover damages for any breach of the covenants therein contained.

The tract was in an even-numbered section and within the place limits of the grant, made by Acts of Congress of date July 1, 1862, 12 Stat. 489, c. 120, and July 2, 1864, 13 Stat. 356, c. 216, to the Union Pacific Railroad Company, Eastern Division.

On July 21, 1886, the selection by the Missouri, Kansas & Texas Railroad Company was cancelled by order of the Commissioner of the General Land Office. Notice of this order was given to the railroad company, as also time to appeal therefrom, but no appeal was ever taken. On July 28, 1888, E. M. Cox, who had, on July 31, 1886, taken forcible possession of the land, filed his declaratory statement claiming settlement. On July 26, 1889, he made final proof, paid the government price, and received his patent certificate. Thereafter on October 15, 1890, a patent was issued to him.

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