Lockhard v. Asher Lumber Co.

Citations

• 123 F. 480
• 1903 U.S. App. LEXIS 4919

Syllabus

<p>1. State' Lands—Validity of Patent—Kentucky Statute.</p> <p>Rev. St Ky. 1852, c. 102, which went into effect July 1, 1852, and remained in force until December 1, 1873, prescribed the method of obtaining title to the public lands of the state from the counties to which they had been previously donated, which was by purchasing an order from the county court authorizing the entry and survey of a tract, which could not exceed 200 acres, making entry of a description of such order in the surveyor’s book, causing a survey to be made by the surveyor, who was required to survey each entry in turn and to make a plat and certificate, which, with the order, must be filed with the register, and the issuance of a patent thereon. Helé, that such act did not authorize the uniting of two or more entries in one survey, one purpose of limiting the orders to 200 acres each being to require surveys in small tracts, to avoid the danger of overlapping or of inclosing smaller grants, and that a patent for a larger quantity of land than 200 acres, which shows but a single survey, is without authority of law and void on its face, and may be collaterally impeached.</p> <p>2. Federal Courts—Following State Decisions—Dicta.</p> <p>While a federal court is bound by the decisions of the highest court of a state construing a state statute, an expression of opinion by such court upon a question not involved in the ascertainment of the right or title in question between the parties, and which is therefore merely a dictum, is not a decision; and, where the question is directly presented to a federal court, it is bound to exercise its independent judgment thereon.</p> <p>S. Patent for Lands—Collateral Attack.</p> <p>Where a complainant is seeking affirmative relief, based upon a patent to land, defendant may attack the validity of such patent by demurrer, on the ground that it is void on its- face, without first showing that he has an interest in the land.</p> <p>¶ 2. State laws as rules of decis