# Gertgens v. O'Connor

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United States Supreme Court
191 U.S. 237
Gertgens v. O'Connor
Argued: November 9, 10, 1903. --- Decided: November 30, 1903
This was an action in ejectment commenced on February 15, 1900, by John P. O'Connor against Jacob Gertgens, in the district court of the sixteenth judicial district of the state of Minnesota, to recover possession of the southwest section 9, township 125, range 45 west. The defendant appeared and answered. A trial was had before the court without a jury, resulting in a judgment for the plaintiff, which was, on April 4, 1902, affirmed by the supreme court of the state (85 Minn. 481, 89 N. W. 866), and thereupon this writ of error was sued out.
The facts are these: The tract was surveyed public land, situate in the county of Traverse, and lying within the twenty-mile indemnity limits of the grant to the St. Paul, Minneapolis & Manitoba Railway Company, as defined by acts of Congress dated respectively March 3, 1857 (11 Stat. at L. 195, chap. 99), and March 3, 1865 (13 Stat. at L. 526, chap. 105). It, with other lands, was withdrawn from settlement and entry under the land laws of the United States by executive withdrawal, dated May 25, 1869. In April, 1885, the tract, being within the indemnity limits, was, with other tracts, selected by the railway company as indemnity for deficiencies claimed to exist within the place limits. These selections were all finally canceled on October 23, 1896.
Prior to April 15, 1891, the land was unoccupied, but at that time the defendant, being fully qualified as a homestead claimant, took possession with a view of claiming it as a homestead under the laws of the United States, has ever since occupied it as his homestead, and made improvements thereon of the value of $1,200. He made application at the local land office for a homestead entry but it ws refused by the local land officials, and such refusal sustained on appeal by the Commissioner of the General Land Office. The refusal was on the ground that the land was within the 20-mile indemnity limits of the railway company, and had been selected by the company in 1885, long before the defendant went upon the land.
In July, 1880, the railway company entered into a written agreement with the Rev. John Ireland, a citizen of the United States, by which the company gave him the sole and exclusive right and authority to place settlers upon and sell to them all the lands in the counties of Big Stone and Traverse, to which the railway company might be entitled by virtue of the land grants of March 3, 1857, and March 3, 1865, and which were included within the indemnity limits of said grants. This contract expired December 31, 1881. On March 30, 1883, the railway company made a new agreement, which, after referring to the prior contract, contained this stipulation: 'Now, therefore, the contract herein referred to having expired on the 31st day of of December, A. D. 1881, and the R. R. Co. not yet having acquired title to the lands in question, it is now agreed between the R. R. Co. and the Rev. John Ireland that when title to these lands are acquired by the R. R. Co., and notice of the same is given to Rev. John Ireland, he shall have the privilege and the right at any time within sixty days of date of said notice of purchasing for himself or such parties as he may designate, due regard being had, as stated in supplement to said contract, for settlers who may have obtained any claim upon such lands previous to the date of said contract, any or all of the lands included in said contract, not to exceed the amount of 50,000 acres at uniform price of $4 per acre, 10 per centum of all receipts from said lands at the above price to be furthermore paid to the said Rev. John Ireland, according as the monies are received by the company, when such lands shall be purchased by Rev. John Ireland or those whom he may designate, the conditions of sale usual with the company shall be observed, or, at least, the interest upon the purchase money shall be paid from the date of purchase to the 15th day of December following, when the usual condition shall be enforced.'
This agreement was duly recorded in the office of the register of deeds of Traverse county, Minnesota. On February 8, 1896, Ireland made application to the Land Department for leave to purchase from the government the land in controversy under the provisions of the 5th section of the act of Congress of March 3, 1887 (24 Stat. at L. 556, chap. 376, U.S.C.omp. Stat. 1901, p. 1595). This application was contested by the defendant, but the claim of Ireland was sustained by all the officials of the Land Department, from the local officers up to the Secretary of the Interior. A patent was thereupon issued to Ireland, from whom the plaintiff obtained a conveyance. The act of March 3, 1887, was an act directing the Secretary of the Interior to adjust, in accordance with the decisions of the Supreme Court, the several railroad land grants made by Congress. Section 5, under which Ireland made his claim is copied in the margin.
Messrs. S. M. Stockslager, Thomas Kneeland, George C. Heard, and F. W. Murphy for plaintiff in error.
Messrs. Edward T. Young, Hiram F. Stevens, and Messrs. Stevens, O'Brien, Cole, & Albrecht for defendant in error.
Statement by Mr. Justice Brewer:
Mr. Justice Brewer delivered the opinion of the court:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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