SMILEY V. SAMPSON. 11. NEGLECT OF OFFICER. The law will protect an individual who, in the prosecution of a right, has done all that the law requires him to do, but fails to attain his right, by reason of the neglect or misconduct of a public officer. 12 FRAUD IN PRE-EMPTIONS. If an indigent party give for a house standing on a tract of the public land, his note for $3,000, and thereupon asserts a preemption claim to the tract, without making any other improvement thereon, and as soon as he effects his entry, conveys a large tract to the payee of the note, in discharge thereof, and also conveys most of the remainder to parties, who as witnesses and attorneys have aided him in securing it, and who have previously endeavored to secure it by fraudulent practices, these circumstances unexplained, justify the opinion that there was at the time of his first asserting his preëmption claim, an agreement to do what was afterwards done. In the summer of 1857, Smiley possessing such personal qualifications, as under the provisions of the act of September 4, 1841, entitled him to preempt a tract of the public land, erected on the west half of the south-east quarter of section three, and the west half of the northeast quarter of section two, in township fifteen north, range thirteen east of the sixth principal meridian, a substantial dwelling and another house, and fenced an enclosure around the same, and made some other improvements, all of the value, and at a cost of about $1,500. At this time an association of persons who assumed the name of the Sulphur Springs Land Company, "claimed" -in the parlance of the frontier-these lands, together with several thousand acres adjoining. That is, without any right or title derived from the United States land laws, they assumed the proprietorship of these lands, and pretended to have, although they had not in reality, possession and occupancy thereof. The object of this company was to build a town on these lands. They laid them off into town lots with streets, and induced many persons to build houses on the lots and live on them. They also issued certificates of shares as in a joint stock company, which were held by large numbers of persons. SMILEY V. SAMPSON. Smiley's father owned one or more of these certificates. The Smiley family consisted of the plaintiff, the father and four maiden sisters. Immediately on their arrival in the Territory, with the lumber for the houses above mentioned and their household goods, they proceeded, (the plaintiff claims that he, and the defendants claim that the father proceeded) to the premises in question and built the said houses, and afterwards lived there for some time. The only other improvements upon the tract was a house built by one Gant. The tract was, like the other lands "claimed" by the Land Company, laid off into lots; but Smiley's house and enclosure was not built with any reference to the lines thereof. Shortly after Smiley built the houses, the company caused John A. Mowrey to preëmpt under the act of September 4, 1841, the quarter section here in question, and immediately convey the same to it. In March, 1858, Mowrey's entry was returned to the local from the general land office, with directions to the register and receiver to reinvestigate his right to preëmpt; and on the 4th of June following, those officers decided against the validity of his entry. In the same month, Smiley asserted his right to preëmpt the land, by tendering to the register his declaratory statement of intention to claim the same, under the act of 4th September, 1841. The officer refused to receive the paper, on account of Mowrey's previous entry. Smiley then took steps in his own name, and on his own behalf against Mowrey's entry, and upon his caveat filed before the commissioner, it was by that officer again returned to the local office for reexamination. The investigation commenced on the 13th of December, 1858, and was protracted till the 3d day of March, 1859. This matter was entitled "John A. Smiley v. James A. Mowrey." The result was a decision by the register and receiver adverse to the claims urged in Mowrey's name, which they communicated to the SMILEY U. SAMPSON. commissioner by their letter, dated May 19, 1859. This decision was approved by the last mentioned officer, and no subsequent efforts were afterwards made to reverse or modify it. The ground of the decision was, that Mowrey had made the entry for the Land Company and not for himself. At this point, the appellant Sampson first appears as a claimant of these lands. He had come to Nebraska the preceding spring, in very straightened circumstances, and rented the house on the tract built by Gant, and also a farm three miles distant, which he worked that season. In August, he filed his declaration of intention to preëmpt, adversely to Smiley, by whose persistent efforts the tract had been discharged of the fraudulent entry in Mowrey's name. On the 16th of November, 1860, the investigation ordered by the commissioner was had; and the matter was entitled "John A. Smiley v. James A. Mowrey and others." Smiley stood on the proofs of his right taken in the former examination, and Sampson introduced proof, in support of his claims. The record thus presented was unsatisfactory to the commissioner; and on the 24th of January, 1862, he ordered a new and full examination on four points, namely: "First, the date of settlement; second, the nature and purposes of the same; third, the nature and extent of the improvements; and fourth, the date and duration of the residence of each claimant." On the 9th of June, 1862, this examination commenced before the register and receiver, and was very full and greatly protracted; and resulted in a decision by those officers in Smiley's favor. Sampson appealed to the commissioner, who on the 9th of October, affirmed the report of the loca. officer. Sampson appealed again to the Secretary of the Interior, who on the 11th of July, 1863, revised these decisions, and awarded the land to Sampson. The sole ground of the Secretary's decision is the fact that Smiley SMILEY v. SAMPSON. had in 1857, filed his declaratoy statement of intention to preëmpt another tract of land; and had thereby exhausted his preëmption right. Immediately after this, Gant entered up a judgment in the District Court against Sampson for $3,000, on a note made in 1860, the consideration of which is alleged to be the house above mentioned rented by him to Sampson. In a few days afterwards, and as is said, in satisfaction of this judgment, Sampson conveyed a part of the land to Gant, and also conveyed to others other parts of the land; Gant, and the other grantees being Sampson's attorney's and witnesses in the proceedings above mentioned. Tuttle who secured a part of the land was treasurer, and Patrick who secured another part was the executive committee of the Land Company. The circumstances of Smiley's first filing, which in the Secretary's opinion exhausted his rights, under the preëmption law, were these: He came here in the spring of 1857 to find a home. He found a piece of land which appeared to be unclaimed, and filed on it. A day or two afterwards, one Creighton told him he was the claimant of it, under the regulations of the "Omaha Claim Club." This was an organization which assumed to authorize its members to "claim" three hundred and twenty acres of land, and to prevent all others, by adverse claims or preëmption rights, interfering therewith. Persons not members of it, who asserted such rights, were called "jumpers." "The Club" was composed of large numbers, and had in some cases enforced its rules by extreme violence. Smiley did not wish to come in conflict with this organization; and when he made his filing, did not know the land was so "claimed." On being informed of it, by Creighton, he immediately withdrew his filing, and never afterwards claimed the land or any interest in it. It was claimed in the answers, and on the proofs, and SMILEY V. SAMPSON. in argument, that it appeared that Smiley, the plaintiff, did not make, but that his father made, the improvements in virtue of which he claimed his preemption right. The. plaintiff testified that he purchased the lumber and other material with which the houses were built, at Wheeling, Va., and brought them with him to Nebraska, and mostly with his own hands put up the houses; that he earned the money with which to buy the material, teaching school at Charlestown, in Virginia; that his father lived with him, and he had general care of the family, until his father died, who was buried on the tract; that his sisters lived on the tract with him, until he removed them to Omaha, where he provided for them, until they were married; that the house was always his home, although he went to Iowa to teach school, and also was engaged freighting on the plains. The defendants produced the depositions of three witnesses residing at Charlestown, to the effect that no such man ever taught school there; but in his own support, Smiley produced the depositions of four witnesses, who swear he taught school at the time claimed by him, which was quite near to Charlestown. at A patent having been issued to Sampson for the lands in question, Smiley, on the 24th of September, 1864, filed his bill to recover the legal title from him and his grantees. The cause was heard on pleadings and proofs in the District Court, where on the 6th of August, 1867, a decree was rendered in favor of Smiley, according to the prayer of his bill. The defendants appealed to this court. J. I. Redick for the appellants, argued the following propositions : I. The land officers are a special tribunal, to whose decision the several questions involving the right of a claimant to preëmpt a tract of land, are, by law, finally submitted. |