The Great Northern Railway Company filed its amended complaint against James A. Hower, individually and as trustee, Anna H. Hower, his wife, Nonpareil Consolidated Copper Company, Nicholas H. Rudebeck, and James McCreery Realty Company, in the superior court of the state of Washington, in and for the county of Snohomish, seeking to establish title to the northeast quarter of section 2, township 27 north, range 10 east, Willamette meridian, in said county and state. Defendants appeared and demurred upon the ground, among others, that the amended complaint did not state facts sufficient to constitute a cause of action. The superior court sustained the demurrer, and upon appeal to the supreme court of the state of Washington, judgment on the demurrer dismissing the suit was affirmed (69 Wash. 380, 125 Pac. 159) and the case was brought here.
Various paragraphs of the bill allege the selection of the lands in controversy by the complainant's grantor, the St. Paul, Minneapolis, & Manitoba Railway Company, under the provisions of the act of Congress of August 5, 1892 (27 Stat. at L. 390, chap. 382), which selection was made on March 24, 1894. Other paragraphs of the bill allege the filing of an application by one Melvin J. Carter on April 18, 1899, in the district land office to enter the northeast quarter of section 2, township 27 north, range 10 east, under the homestead laws of the United States, Carter claiming that he had settled on the land December 1, 1893. The complaint recites the controversy between the railway company and Carter before the district land officers, and the taking of testimony, which, it is alleged, showed that Carter on September 19, 1893, purchased the improvements of a former settler upon a tract of unsurveyed land on the left bank of the north fork of the Skykomish river, a short distance below the mouth of a tributary of said river known as Trout creek; that he thereupon established a residence in the cabin of the former settler, and commenced the construction of a new dwelling house which he finished in the spring of 1894; that he moved his family into this dwelling house and had continued to reside therein and on said land with his family to the time of said hearing; that his improvements consisted of the dwelling house and a small clearing in which he set out trees and shrubbery and raised vegetables from year to year. It is alleged that the evidence taken at the hearing further showed that Carter's improvements were all situated on the left bank of the north fork of the Skykomish river, about two or three hundred feet from said river and about one-half mile below the mouth of said Trout creek, and not upon the land applied for by Carter under the homestead law; that on the evidence alleged, the register and receiver, on August 28, 1903, held and decided that Carter had duly settled upon the land claimed by him during the month of September, 1893, and had continued to reside upon, improve, and cultivate said land to the time of said hearing on June 1, 1903, and that he should be allowed to enter the land applied for under the homestead law, and that the railway company's selection thereof should be canceled.
It was further charged that upon appeal to the Commissioner of the General Land Office, the railway company alleged among other things that the evidence showed that the dwelling house and other improvements of Carter were not on the land selected by said railway company and applied for by Carter, but were and at all times had been situated more than three eighths of a mile from said land; that the Commissioner of the General Land Office, on March 23, 1904, held and decided that said Carter had settled upon the land upon which his improvements were made in the fall of 1893, and that he had commenced his residence thereon with his family in the spring of 1894, and had continued to reside upon and improve same. The Commissioner further held that the evidence taken tended to show that Carter's improvements were all situated on the northwest quarter of section 2, township 27 north, range 10 east, and not on the northeast quarter of said section 2, and ordered a further hearing.