61 So. 866 | La. | 1913
This is a petitory action, coupled with an injunction, involving the W. y2 of the S. E. and the S. W. % of the N. E. %, and S. E. % of the N. W. % of Sec. 1, T. 7, N. R. 3, W., La. Mer. parish of Grant.
This land was patented to the New Orleans Pacific Railway Company by the United States government on March 3, 1885, as having been included in the grant made by Congress in 1871 to the New Orleans, Baton Rouge & Vicksburg Railway Company (Act March 3, 1871, 16 Stat. 573, c. 122), the assignor of the N. O. Pac. R. Co.
The patentee sold this land in 1892 to John Benetto; the latter died, and his heirs sold it in 1893 to Thatcher & Barnum; the latter sold it in 1900 to the plaintiff Edenborne, and the latter sold the timber on it to the Iatt Lumber Company in 1906.
The defendant denies that the plaintiffs have any title or right to the property, and seeks to justify his detention of it by showing that by a provision in the act making the grant to the New Orleans, Baton Rouge & Vicksburg Railway Company, there was expressly excepted from the grant “all lands occupied' by actual settlers at the date of the definite location of said road,” and that said road was definitely located in November, 1882, and by attempting to show that at that time said land was occupied by an actual settler named Sermons, and that it has continued to be occupied uninterruptedly down to the present time by successive settlers, including the defendant, each of whom acquired by purchase the rights of his predecessor.
Before answering to the merits defendant pleaded lis pendens and estoppel.
“Under the Acts of March 2, 1896, c. 39, 29 Stat. 42 [U. S. Oomp. St. 1901, p. 1603], it is provided that suits by the United States to vacate and annul any patents to lands theretofore erroneously issued under a railroad or wagon road grant shall only be brought within five years after the passage of said act. Even if it should be assumed, therefore, that all the facts in relation to the settlement and continuous residence and improvements by Sermons and his assignee, Faircloth, are absolutely true and correct, and that patent was erroneously issued to the railroad company for lands excepted from the operation of said confirmatory grant, this applicant has been guilty of laches, and the land department is now unable to afford him any relief.”
The defendant is here denied any standing even as against the railroad company itself. ’ How much less standing has he, then, as against bona fide purchasers from the railroad company, or from its assigns, such as the plaintiffs in this case unquestionably are. The original grant of 1871 excepted from the operation of the grant all lands occupied by actual settlers at the date of the location of the road, irrespective of whether such settlers were, or not, “entitled to make homestead or pre-emption entries.” Lisso v. Devillier, 118 La. 559, 43 South. 163. And the confirmatory act of February 8, 1887 (24 Stat. c. 120, p. 391), was to the same effect. But the curative act of March 3, 1887, 24 Stat. c. 376, p. 556 (U. S. Oomp. St. 1901, p. 1595), confirmed the title of bona fide purchasers from the railroad as against all settlers except bona fide homestead and pre-emption entries. And, finally the supplementary curative act of March 2, 1896 (29 Stat. c. 39, p. 42), confirmed the title of bona fide purchasers from the railroad even as against homestead and pre-emption entries. It provided that:
“No patent to any lands held by a bona fide purchaser shall be vacated or annulled, but the right and title of such purchaser is hereby confirmed.”
No exception is here made in favor of settlers of any kind; even homesteaders and pre-emptioners are cut out.
"We do not find it necessary to discuss the facts, but have duly considered them, and have found that, at best, the defendant would be entitled to only one of the forties in question.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be set aside, and that the plaintiffs have judgment against the defendant reinstating and making perpetual the injunction herein, and decreeing the plaintiff William Edenborne to be the owner of the land in dispute in this case and the Iatt Lumber Company, Limited, to be the owner of the timber thereon, and ordering them to be put in possession of same, and that the defendant pay all costs.