In March, 1876, S. went into actual possession and occupation of
a tract of public land in California which was then reserved from
settlement on account of unsettled Spanish and Mexican land grants,
and which continued so reserved until April, 1883. On the second of
October, 1882, the wife of S., being then the owner of an adjoining
tract, on which she and S. resided, conveyed that tract to her
husband. On the 10th of December, 1883, S. appeared in person at
the United States land office in San Francisco and represented that
he was a naturalized citizen of the United States, the head of a
family, that he was 56 years of age, and that since October 2,
1882, he had been the owner of and in actual and peaceable
possession of the tract conveyed to him by his wife, and he applied
to enter, as an adjoining farm homestead, under Rev.Stat. sections
2289 and 2290, the tract so taken possession of by him in March,
1876. After payment of the fees and commissions required by law, he
was permitted to enter that tract as an adjoining farm homestead.
On the 13th of December, 1883, M. filed a preemptive declaratory
statement in the same land office, which statement included the
tract so occupied and entered by S., and alleged a settlement
thereon by himself on the 19th of January, 1876. Thereupon a
contest took place between S. and M., first before the register and
receiver of the local land office; then, on appeal, before the
Commissioner of the General Land Office; and, finally, on appeal,
before the Secretary of the Interior. In these proceedings it
appeared that S. had not resided continuously on the original farm,
but had leased it to a tenant for a number of years, including the
period of his adjoining farm entry, and S., in reply, claimed that
he did not reside there because of danger of violence and injury at
the hands of M. The Secretary of the Interior, while intimating
that the proof failed to show the required residence on the part of
S., decided that the excuse set up by him for nonresidence was not
sustained by the evidence.
Held that the ownership and
title shown by S. were sufficient to entitle him to an additional
farm homestead, but that the question of his residence on the land
conveyed to him by his wife was one of fact which the courts had no
jurisdiction to reexamine in the absence of a clear showing that
the decision was procured by fraud or imposition.
The case is stated in the opinion.
Page 159 U. S. 644
MR. JUSTICE FIELD delivered the opinion of the Court.
This case comes before us on error to the Supreme Court of
California. The action was ejectment, commenced in July, 1891, to
recover possession of certain parcels of land situated in the
County of Contra Costa, in that state.
The plaintiff in the court below, defendant in error here,
alleges in his complaint that on the 26th of February of that year,
he was the owner in fee and entitled to the possession of certain
parcels of land, described as lots Nos. 2 and 3 of section No. 22,
and lot No. 1, and the northeast quarter of the northeast quarter
of section No. 27, in township No. 2 north of range No. 3 west, Mt.
Diablo base and meridian, according to the official survey of the
government of the United States.
That while he was such owner, and thus seised and entitled to
the possession of the premises, the defendant, on the day
mentioned, without right or title, entered upon the premises and
ejected him therefrom, and ever since has withheld, and still
unlawfully withholds, the possession thereof, to the damage of
plaintiff of $1,000.
That the value of the rents, issues, and profits of the premises
from the entry stated, and while the plaintiff has been excluded
therefrom, is $50.
The plaintiff therefore prays judgment against the defendant for
the possession of the premises and the recovery of the sum of
$1,000 for withholding the same, and the sum of $50 for the value
of its rents and profits, and for such other and further relief as
to the court may seem meet and proper.
The defendant in his amended answer denies generally and
specifically each of its allegations, except that he is and has
been in the possession of the premises, which he admits, and
Page 159 U. S. 645
claims that he is the owner thereof and entitled to their
possession. And he denies that the plaintiff, by reason of the
defendant's possession, has been damaged in the sum of $1,000 or in
any other sum.
And in his answer, treated as a cross-complaint, the defendant
makes certain allegations as to the acquisition and possession of
other property, upon which he asserts a right to enter the tract in
controversy as an adjoining farm homestead, averring that on the
second day of October, 1882, he became the owner and went into the
actual possession of a tract of land situate in the County of
Contra Costa, being a portion of the land which was awarded to one
James McClellan under partition of a certain rancho entitled Pinole
Rancho in which he was interested, as it was surveyed and patented
by the United States, and which portion Getta Stewart, his wife,
acquired from him.
That the portion thus acquired, a tract of land containing about
sixty (60) acres, was on October 2, 1882, conveyed to the
cross-complainant by deed executed and acknowledged by her. And he
alleges that in the month of March, 1876, he went into actual
possession of certain public lands of the United States situate in
the County of Contra Costa, embracing a portion of the property for
which this action is brought, containing, according to the public
surveys, seventy (70) acres and twenty-five (.25) hundredths of an
acre, and that he has from that date remained in the actual
possession thereof, and used and cultivated the same, and that the
public lands adjoin the land conveyed to him by Getta Stewart, and
were reserved from settlement under the United States laws on
account of unsettled Spanish and Mexican land grants, until the
16th of April, 1883, when the boundaries of the Rancho El Sobrante,
of which they were a part, were finally settled.
That on the 10th day of December, 1883, the survey of the public
lands was approved by the United States surveyor general of
California and the map of the township was filed in the United
States land office of California.
That the cross-complainant in the month of March, 1876, and on
the 16th day of April, 1883, and since those periods,
Page 159 U. S. 646
and on the 10th day of December, 1883, and thereafter resided
upon the land acquired by him from Getta Stewart.
That on the 10th of December, 1883, and since the month of
March, 1876, he was the head of a family, and was then of the age
of forty-nine years, and was at the dates mentioned a naturalized
citizen of the United States, and was on the second day of October,
1882, and thereafter, on the 10th day of December, 1883, and since,
the owner of and in the actual and peaceable possession of the land
conveyed to him by Getta Stewart.
That on December 10, 1883, he appeared in person at the United
States land office at San Francisco, State of California, and
applied to the register to enter as an adjoining farm homestead,
under the provisions of sections 2289 and 2290 of the Revised
Statutes of the United States, the public land above referred to as
in his possession. The sections of the Revised Statutes referred to
are as follows:
"SEC. 2289. Every person who is the head of a family or who has
arrived at the age of twenty-one years and is a citizen of the
United States, or who has filed his declaration of intention to
become such as required by the naturalization laws, shall be
entitled to enter one quarter section or a less quantity of
unappropriated public lands, upon which such person may have filed
a preemption claim, or which may at the time the application is
made, be subject to preemption at one dollar and twenty-five cents
per acre, or eighty acres or less of such unappropriated lands at
two dollars and fifty cents per acre, to be located in a body, in
conformity to the legal subdivisions of the public lands, and after
the same have been surveyed. And every person owning and residing
on land may, under the provisions of this section, enter other land
lying contiguous to his land, which shall not, with the land so
already owned and occupied, exceed in the aggregate one hundred and
sixty acres."
"SEC. 2290. The person applying for the benefit of the preceding
section shall, upon application to the register of the land office
in which he is about to make such entry, make affidavit before the
register or receiver that he is the
Page 159 U. S. 647
head of a family, or is twenty-one years or more of age, or has
performed service in the army or navy of the United States, and
that such application is made for his exclusive use and benefit,
and that his entry is made for the purpose of actual settlement and
cultivation, and not either directly or indirectly for the use or
benefit of any other person, and upon filing such affidavit with
the register or receiver on payment of five dollars when the entry
is of not more than eighty acres, and on payment of ten dollars
when the entry is for more than eighty acres, he shall thereupon be
permitted to enter the amount of land specified."
That in compliance with these sections of the Revised Statutes,
and on December 10, 1883, the cross-complainant made affidavit
before the register of the United States land office at San
Francisco, California, that he was then the head of a family, and
of the age of fifty-six years, and a naturalized citizen of the
United States, and that the application was for his exclusive use
and benefit; that the entry of the land was made for the purpose of
actual settlement and cultivation, and not either directly or
indirectly for the use and benefit of any other person, and that
the land was not mineral land, and that he was the owner of
adjoining land, upon which he was then residing, and the amount of
land applied for would not, with the land already owned by him,
exceed in the aggregate one hundred and sixty acres.
That he paid the fees and commissions required by law and
demanded by the land officers, and thereupon was permitted to enter
the land as an adjoining farm homestead, and that the receiver of
the land office gave to him a receipt therefor.
He further alleges that on the 13th of December, 1883, the
plaintiff in the action, McHarry, filed a preemption declaratory
statement in the United States land office at San Francisco
alleging settlement on the 19th of January, 1876, upon a tract of
land described substantially as the premises for which recovery is
sought in the present action, and gave notice that he claimed a
preemption right to the land.
That the land described in the preemption declaratory statement
of the plaintiff included the land in the actual possession
Page 159 U. S. 648
of and entered by the cross-complainant as an adjoining farm
homestead. That plaintiff did not then have, nor has he ever since
had, possession of the land included in the cross-complainant's
homestead entry, or any part thereof.
He further alleges that a hearing of their respective claims was
had before the register and receiver of the United States land
office at San Francisco, and that he (the cross-complainant) and
the plaintiff produced witnesses in support of their respective
claims to the land, whose testimony was taken and reduced to
writing in the land office.
That at such hearing, the fact was proved that the
cross-complainant had been in the actual, peaceable, and continuous
possession of the land included in his homestead entry since the
month of March, 1876; that Getta Stewart, his wife, was in the
actual possession of the land conveyed to him, by her deed, and had
been in such actual possession since the year 1871 to the date of
the conveyance, and that with the deed she delivered possession
thereof to him, and that he then took possession thereof, and
continued in actual possession thereof, with his family, consisting
of his wife, said Getta Stewart, and her children by her former
marriage, on the 10th day of December, 1883, and that the facts
thus proved were not disputed, and that no evidence whatever to put
the facts so proved in issue was ever brought before said land
officers at the hearing.
That at the hearing of the contest before the register and
receiver, the fact was proven that the plaintiff and members of his
family threatened the life of the cross-complainant and attacked
him at various times since he took possession of the lands, shot at
him at the house in which he and his family resided, and thus put
him in reasonable fear of his life and of personal violence of
himself and family, and thereby compelled him to remove to the Town
of Martinez, and that thereafter he employed tenants who held
actual possession of the land for him, and that the tenants were
assaulted by the plaintiff in a similar manner, and that upon two
occasions the plaintiff and members of his family were arrested for
such assaults. That the register and receiver refused to find facts
from such testimony, and decided that it was unnecessary to
consider the same.
Page 159 U. S. 649
That the plaintiff claimed to have made a settlement upon
adjoining subdivisions of land, and by reason of such settlement
included the land in the possession of, and contained in the
homestead entry of, the cross-complainant, in his preemption claim,
and the register and receiver found such facts to be true, but
nevertheless decided that the land included in the
cross-complainant's homestead entry was not a valid adverse claim
to the plaintiff's preemption claim for the reason that the
cross-complainant did not acquire any right or title by the deed
from his wife to the land adjoining the land embraced in his
homestead entry, in which ruling they erred.
And the cross-complainant further avers that on March 7, 1885,
the land officers made a decision, in the matter of the conflicting
claims of the cross-complainant and plaintiff to the land, in favor
of the plaintiff.
That on the 10th day of March, 1885, being within the time
required by and in accordance with the rules and regulations of the
General Land Office, the cross-complainant filed his appeal from
the decision of the register and receiver to the Commissioner of
the General Land Office.
That thereupon the Commissioner of the General Land Office
considered the same and reviewed the evidence and the decision of
the register and receiver, and on the 1st day of September, 1886,
rendered a decision reversing that of the register and receiver and
awarding to the cross-complainant the land claimed by him and
included in his homestead entry.
That thereupon the plaintiff, McHarry, on the 6th day of
November, 1886, appealed from the decision of the Commissioner of
the General Land Office in the contest to the Secretary of the
Interior.
That on the 16th day of September, 1889, the Secretary of the
Interior reversed the decision of the Commissioner of the General
Land Office, awarding the public land claimed by the
cross-complainant to the plaintiff. One ground of the decision of
the secretary awarding the public land to the plaintiff is thus
stated in his opinion:
"The statute requires residence on the original farm. The proof
shows that Stewart and his family, while making a show
Page 159 U. S. 650
of residence on the tract claimed as an original farm, had in
fact leased said farm to a tenant for a number of years, covering
the period of his adjoining farm entry, and that they in fact
resided several miles from said farm, in the Town of Martinez,
where Stewart had an established permanent business and a residence
connected with his place of business. The excuse set up by Stewart
for such nonresidence -- namely, that it was because of danger of
violence and injury at the hands of the McHarrys -- is not
sustained by the evidence. Mrs. Stewart testifies that she went to
the farm and remained there for short periods whenever she felt
inclined, and seems never to have been molested, and no attempt by
the McHarrys to prevent Stewart or his family from residing on the
original farm at any time is shown."
The plaintiff demurred to the cross-complaint. The demurrer was
sustained, and judgment was rendered thereon, and on the answer, in
favor of plaintiff, and defendant appealed to the supreme court of
the state, by which the judgment was affirmed. 35 P. 141.
The supreme court held that Stewart's ownership and title were
sufficient to entitle him to an additional farm homestead, and that
the Land Department erred as matter of law in its conclusion in
regard thereto, but that, in respect of Stewart's residence on the
land conveyed to him by his wife, that was a question of fact, and
the court had no jurisdiction to reexamine the conclusions of the
Land Department thereon in the absence of a clear showing that the
decision was procured by fraud or imposition, which did not appear
in the case. With these views we concur.
Judgment affirmed.