Duluth Storage & Forwarding Co. v. Prentice

Nelson, District Judge, (after stating the facts.") This suit is brought to establish, as against the defendant, the titles derived from John M. Gilman, whose immediate grantors were Benjamin Armstrong and wife, under a deed dated August 31,1864. The defendant’s claim must stand or fall under his deed from Armstrong and wife, dated September 11,1856. If the title, of Gilman is sustained, the complainants must succeed, as they all trace title through him. Armstrong’s title, conveyed by this deed, is claimed to be derived under a treaty with the Chippewa Indians in 1854 at La Pointe on Madaline island in Lake Superior, and under the selection of Chief Buffalo, according to the provisions of the treaty and appointment by Buffalo that the lands selected by him should be conveyed by the United States to Armstrong and three other relatives.' The interest under the treaty of the three relatives was assigned September 17, 1855, to Armstrong. The question which must determine the rights of the parties to this controversy has been before this court in several ejectment suits brought by this defendant against persons claiming under Gilman, (see 20 Fed. Rep.‘819; 43 Fed. Rep. 270;) and in one instance a case was reviewed by the supreme court of .the United States and the construction by this court of the deed from Armstrong to Prentice affirmed. Prentice v. Stearns, 113 U. S. 435, 5 Sup. Ct. Rep. 547. It is true, additional testimony is taken in this suit by the parties under objections from each. The objections noted by the defendant to the testimony of Messrs. Ray, Carey, McFarland, and others are overruled. I am inclined to think this evidence is relevant. The admission of traditionary evidence in cases of boundary is admissible, and Chief Buffalo’s selection under the treaty was a matter of peculiar interest to the people in general who .were about to make or had made settlement upon government land in that locality, and so the declarations made by Chief Buffalo before his death, and those of Armstrong to the persons camping with him. at Endion, are admissible, the former as tending to show that the Buffalo selection lays east of the large rock mentioned, and the latter being relevant as also tending to show that it did, and that Armstrong fully recognized this location, and that the deed from him to the defendant of September 11, ÍS56, was intended to convey an undivided one half 881 of a described mile square lying east of the large rock, just as it states. The written contract between the parties contemporaneous with the deed is also admissible as throwing some light on the intention of the parties when the deed was executed. I am also inclined to the opinion that the documentary evidence from the land department at Washington showing the correspondence between officials of the Indian and land department are admissible; but, giving full weight to such testimony, it cannot overthrow the conclusion which the court must reach from a consideration of all the evidence in the suit. The argument of the defendant’s counsel is based upon the theory urged in the ejectment suits that the interest conveyed by Armstrong to Prentice was in the nature of a float to attach to any land afterwards patented under the treaty, and not to a specific tract. This view of the case has never been adopted by this court, and it was held adversely to the defendant in the case before the supremo court of the United States. But it is urged that there was a mistake in the east and west lines as described in the Prentice deed, and that there should be a reversal of these lines by this court, which, if done, would include a large tract of the land claimed by the complainants. The witness Ellis, who drew the deed, testifies that he inserted the starting point and the boundaries given him by Armstrong, and Armstrong himself testifies that he dictated the description by boundaries to Prentice, and I can find no evidence showing that there was a mistake in the specific boundaries. On the contrary, if we are right in the conclusion from the evidence, Armstrong expected to acquire under the treaty the square mile lying east and north of the large rock, and that is all the laud he claimed. There are many minor points urged by the defendant’s counsel, but, in the view taken by the court, none of them, if decided in favor of the defendant, would bar the relief claimed in the complaint. Decree ordered for the complainants.