105 Minn. 16 | Minn. | 1908
This is an action in ejectment, and appellants claim title to the premises by virtue of the act of congress approved July 4, 1866, known as the “Hastings & Dakota Railway land grant.”
The answer denies the validity of appellants’ selection of the lands in the indemnity limits, and alleges that respondent was duly qualified to make a homestead entry, and that he entered upon the land in question prior to 1891, with the intention of making a homestead entry thereon; that he duly offered his homestead application at the proper land office, accompanied by a tender of the necessary fees; that, the same was disallowed on the pretended claim that it had been
The court found that the trustees made a selection in due form on October 29, 1891, but that at the time of such selection the land in question was not vacant, but was occupied by respondent; that on November 1, 1888, respondent was duly qualified and entitled to make a homestead entry; that he went into possession of the land with intent to enter upon and claim the same as a homestead, and has ever since remained in possession thereof with such intention; that at the time of the commencement of this action his improvements exceeded in value the sum of'$700; that on November 3, 1891, he offered, at the proper land office, a homestead entry in due form, which was refused solely upon the ground that the land' was withdrawn from settlement by the executive withdrawal of April 22, 1868, from which order respondent duly appealed, which appeal remained pending in the land department until September 11, 1894, when the rejection by the local land officers was affirmed by the commissioner; that respondent appealed from that decision to the secretary of the interior, who rendered a decision on January 25, 1896, affirming the decision. The court held that respondent had done all in his power to secure the land as a homestead.
It was determined in the case of Sage v. Maxwell, 91 Minn. 527, 99 N. W. 42, that the several selections by the railway company prior to October 23, 1891, were ineffectual, that the lands were open to public settlement, and that the land grant in question did.not differ in any of the essential features from the land. grants under consideration in the several cases referred to in that opinion. Every question involved in this appeal, except the following, was decided in that case, and we follow it without further comment.
In the Sage-Maxwell case, however, Maxwell was successful in the land department, and his homestead entry was allowed and a patent was issued to him; whereas in the present case the railway company was successful in having its selection of October 29, 18.9*1, allowed, while the application of respondent was rejected by the land department.
Affirmed.