129 Iowa 32 | Iowa | 1905
The forty acres of land in controversy is located within the place limits of the grant for the benefit of the Dubuque & Sioux City Bailroad Company, afterwards transferred to the Iowa Balls & Sioux City Bailroad Company, under the act of Congress approved May 15, 1856. The road was completed prior to 1872, and, though this tract was included in the list certified to the State, approval was delayed by the assertion of title to it under the swamp land act until 1878. In 1883 John Carraher applied to the local land office at Des Moines to enter it under the timber culture act, but his application was rejected, owing to conflict with the grant to the railroad company, and the decision was affirmed by the Commissioner of the General Land Office in December of the same year. He then appealed to the Secretary of the Interior, by whom the previous decisions were approved June 17, 1891.
In the meantime the company had filed (1885) selections of land, including this, in the local land-office, as inuring to it, under the grant, and these were accepted by the register and receiver and certified to the Commissioner, but under the practice of the department, could not be passed on until Carraher’s appeal had been disposed of, and when reached in January, 1893, this land, through oversight or other cause, was omitted from the certification to the company. In 1888 Carraher presented a second application for the same land to the register and receiver, and procured the following receipt:
Timber Culture.
Beceiver’s Beeeipt No. 607. Application No. 607.
Beeeiver’s Office, Des Moines, Iowa.
May 31st, 1888.
Beceived of John- Carraher the sum of nine dollars cents, being the amount of fee and compensation of*34 register and receiver for the entry of northeast of N. E-. quarter of section one in township 89 of range 46, under the first section of the act of Congress approved June 14th, 1878, entitled “ An act to amend an act entitled ‘ An act to encourage the growth of timber on the Western prairies.’ ”
$9.00. M. Y. McHenry, Receiver.
This was forwarded to him by his attorney, accompanied by a letter:
Sioux City, Iowa, June 2, 1888.
Mr. John Carraher — My Dear Sir: I have the pleasure of handing you herewith your timber culture entry receiver’s receipt No. 607 for N. E. 14 of N. E. 14, 1, 89, 46.
Respectfully, Geo. W. Wakefield.
P. S. You can take possession and proceed to comply with the timber culture laws.
Some claim is made that this case is distinguishable from those first cited, in that before certification in 1903 the Land Department ascertained that the tract was not within six miles of mineral claims, and therefore asserted active jurisdiction in determining whether it was within an exception contained in the grant. This was a mere matter of detail in connection with the certification, and did not tend to show that the company had not acquired ownership under the grant thirty years previous, or that it might not have obtained the certificate at any time after 1891. On the contrary, the investigation resulted in confirming such ownership during this long period. As observed in Barden v. N. P. R. Co., 154 U. S. 288 (14 Sup. Ct. 1030, 38 L. Ed. 992) : “ The delay of the government in issuing a patent does not affect the power of the company to assert in the meantime, by possessory action, its rights to lands which are in fact nonmineral.” This was a direct action by the railroad company to recover the lands under the grant, and is not otherwise in point. All held in St. P., M. & M. R. Co. v. Olson, 81 Minn. 117 (91 N. W. Rep. 294), was that in computing the period of the statute of limitations the time a contest between the parties was pending before the Land Department of the government should be excluded. The act of Congress approved March 3, 1881, providing for the adjustment of railroad grants, did not purport to disturb the ownership of lands already earned, and, moreover, there was no showing that any readjustment of this grant was. attempted. The case is within the rule of the decisions cited, and the defendant’s title has been such as to be subject to adverse possession at least since 1891.
The entire doctrine of adverse possession is based upon the existence of defective titles; for where titles are good there is no occasion for invoking it. The case differs from Litchfield v. Sewell, 97 Iowa, 247, in that there defendant knew he had no right to the land, while here the fair inference to be drawn from the evidence is that Carraher supposed he had been accorded the right to earn it under the tree culture act. See Coleman v. Billings, 89 Ill. 183; Bar
The Supreme Court of Nebraska, without deciding that the running of the statute might not begin sooner, held, in Carroll v. Patrick, 23 Neb. 834 (37 N. W. Rep. 671), that “ a land officer’s certificate, therefore, under our statute, is color of title. As between individuals, the statute of limitations begins to run from the time the party entering the land did all that was required of him to perfect his purchase.” At such time the claim is that of ownership and apparently all lacking is the paper title. It has ceaséd to be subservient to and has become adverse to the government. See Chicago, R. I. & P. R. Co. v. Allfree, 64 Iowa, 500. If, in fact, earned, the government retains but the naked legal title, and the claimant has become the real owner. The land is then segregated from the public domain, and has become private property. Durham v. Hussman, 88 Iowa, 29; Nichols v. Council, 51 Ark. 26 (9 S. W. Rep. 305, 14 Am. St. Rep. 20); Cavender v. Smith, 56 Am. Dec. 541; Cady v. Eighmey, 54 Iowa, 615; Steele v. Boley, 6 Utah, 308 (22 Pac. Rep. 311); Wirth v. Branson, 98 U. S. 118 (25 L. Ed. 86); Stark v. Starr, 6 Wall. 402 (18 L. Ed. 925). But.it is not essential that the land be actually earned in compliance with the law. It is enough that the party in possession in good faith so believes and asserts claim of ownership against the government, as well as all others.
Up to this point we apprehend there can be no controversy, although language may be found in some decisions indicating that the legal title must have passed from the government. See Arnold v. Woodward, 14 Colo. 164 (23 Pac. Rep. 444) ; Gibson v. Chonteau, 80 U. S. 92 (20 L. Ed. 534). But the.claim of one who enters land with the purpose of acquiring title from the government by compliance with its laws is quite as hostile, as though patent had been
The principle is well stated in. the first-mentioned case: " The defendant, and those under whom he claims, did not enter or hold under the plaintiff. They did not recognize his title. They had no privity with him. They do not appear even to have known of the existence of his title. They recognized a title in another person, '‘the United States,’ who was supposed to be the proprietors, and as to the United States their possession was not hostile, but they did expect to acquire the title of the United States, believing themselves to have right of pre-emption to the exclusion of all other persons, and a present right to the use and possession of the land. The defendant has the actual possession, within the meaning of the statute of limitations, with a claim, not of absolute title, but of a right which was adverse to all other persons.”
The only decision we have discovered to the contrary is Altschul v. O’Neill, 35 Or. 202 (58 Pac. Rep. 95). But (here the company under which plaintiff held became entitled to the land in 1886, and, though defendant had occupied it since 1866, he had made no effort to acquire the land from the government as a homestead until 1894. His application was then rejected by the officers of the local land office, and their decision later confirmed on appeal. Suit was begun in 1898, and the statute of limitations of ten years pleaded in bar. It is manifest that defendant was a
The decree was right, and is affirmed.