17 S.D. 240 | S.D. | 1903
This is an action in claim and delivery-brought by the plaintiff to recover possession of a certain crop of wheat grown in the year 1901 on a tract of land in Roberts county. The plaintiff claimed to have a special interest in this crop of wheat, which consisted of about 1,200 bushels, by virtue of a chattel mortgage given by the defendant Holst to the plaintiff to secure the payment of $300, and a seed wheat lien for the sum of $80 for grain furnished from which the crop in controversy was grown. Defendant Lane answered by general denial, and the defendant Holst made default. Verdict was directed by the court in favor of the defendant Lane, and from this judgment the plaintiff has appealed.
The facts may be briefly stated as follows: The land upon which the crop was grown was allotted Indian land under what is known as the “Dawes Act,” and which allotment was made some years prior to the year 1889, and before any of the parties to the action had any connection with the land. The patent issued to the Indian was a preliminary patent, by which the government held the land in trust for the Indian for a term of 25 years. The allottee was in fact a Santee Indian, and was not entitled to an allotment upon the Sisseton and Wapeton reservations, within which the land was situated. On July 10, 1899, the allottee, John Wing, leased the land to one Charles Larson, and thereafter, on the 16th day of November, the said lease was assigned to the plaintiff bank, and
There was evidence tending to prove that Holst had a house, barn, and granary upon the land in controversy during the summer, and that he moved into the house and lived there a part of the time. There was also evidence tending to prove that Holst, on June 13, 1901, again renewed his application at the Land Office to enter the land as a homestead, and was informed that the same had been entered by the defendant Lane, and that thereupon he gave notice that he would contest the right of Lane to enter the same. It will thus be seen that the right to the land upon which the wheat was grown is a subject of contest between the said Holst and the said Lane before the United States Land Office, Holst claiming it by virtue of an entry upon the land in 1900 and an application to enter made at that time, and also by virtue of his entry upon the land and his improvements made in the spring of 1901, and the second application to be permitted to enter the. same; and that Lane claims by virtue of an entry made in the spring of 1901, improvements made thereon, and an application made to the Land Office, and the acceptance of the same; .
A different rule, however, is applied, to a homesteader. While the pre-emptor initiates his right by settlement upon the land, the homesteader is required to first file with the land officers his affidavit, and enter the land as a homestead. If the land is subject to homestead, and the applicant is permitted to enter the same, he immediately acquires the title to the land so entered, subject to be defeated by a failure to com
The assignment of the purported lease to Holst by the Indian, John Wing, was of no validity, and he acquired no rights under it, as a lease from an Indian is invalid unless approved by the Secretary of the Interior. United States v. Flournoy Real Estate and Live Stock Co. (C. C.) 71 Fed. 576; Id., 69 Fed. 886; Buckhalter v. Nuzum, 9 Kan. App. 885, 61 Pac. 310.
The defendant Lane, therefore, by his entry of the land in May, 1901, acquired not only the title thereto, but the title to all that might be growing thereon at the time, as neither Holst nor any other person was authorized to retain possession of the
In Boyer v. Williams, supra, the Supreme Court of Missouri uses the following language: “The United States has complete title to the public lands, and complete title to everything growing on the public lands. The purchaser from the United States acquires title to the land, and to everything on the land, which the United States had before the sale. The doctrine of emblements does not apply here. To entitle the party to emblements, the sowing must have been legal. ’ ’
The same rule undoubtedly applied to a homesteader, who, by his entry, becomes entitled to the immediate possession of the land, and, necessarily, to all that may be growing thereon, as he, by the entry, succeeded to the government title.
The Supreme Court of Minnesota, in Red River & Lake of the Woods R. Co. v. Sture, 32 Minn. 95, 20 N. W. 229, in considering this question, uses the following language: . “It is claimed, however, that an entry under the homestead law gives the settler no vested rights in the land until the issue of the patent. To this we cannot assent. We are aware that it has "been authoritatively decided, in Frisbie v. Whitney, 9 Wall. 187, 19 L. Ed. 668, and the Yosemite Valley Case, 15 Wall. 77, 21 L. Ed. 82, that occupation and improvement on public lands, with a view of pre-emption, do not confer any vested right in the land as against the United States; that this is only
These views lead to an affirmance of the judgment, and the same, and the order denying a new trial, are affirmed.