Cousino v. Western Shore Lumber Co.

RICHARDS, J.,

pro tem.

This action was brought to determine the adverse claim of the defendant to 480 acres of land in San Mateo County under the provisions of section 738 of the Code of Civil Procedure. The defendant denied title in the plaintiffs to any portion of the property, and in a cross-complaint asserted ownership of the property in itself. The facts of' the case are practically without conflict, and are briefly these:

Mary Huot, a Sioux mixed blood Indian woman, was born on the Lake Pepin Reserve in Minnesota in the year 1850. Pursuant to an act of Congress passed July 17, 1854 (10 Stat. 304, c. 83), there was issued to her and in her name Siouz half-breed scrip entitling her to locate for herself lands. of the public domain. The scrip was delivered by the United States government to John Huot, the father of Mary Huot, for her use and benefit, on March 25, 1857. On January 22, 1864, said John Huot was appointed his daughter’s guardian by the county court of Pierce County, Wisconsin, where she then resided, and on the same' day, and as such guardian, he executed to one Wm. S. Chapman a power of attorney, by which he authorized said Chapman to locate said scrip upon public lands. On October 19, 1868, said Chapman, acting under said power of attorney, located the scrip upon the lands involved in this action in the name of Mary Huot, and patents therefor were issued to her on January 20, 1874, which patents were recorded in the county of San Mateo on September 16, 1881. Mary Huot married John Cousino, also spelled Cosineau, on June 17, 1864, in the state of Wisconsin, where she continued to reside until 1876, when she and her husband removed to the state of Minnesota, where they lived until the year 1888, when they took up their residence at Grant’s Pass, Oregon; where she died on May 28, 1894, leaving as her heirs her husband and seven children, who constitute the plaintiffs

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in this action, basing their claim of title upon their heirship of Mary Huot.

The defendant bases its claim of ownership of the lands in question upon several grounds, the first of these being that of an alleged conveyance by Mary Huot and her husband to Wm. S. Chapman, dated July 26, 1871, by whom the premises were conveyed to the defendant. The deed from Mary Huot and her husband to Wm. S. Chapman was executed on their behalf by one Henry T. Welles, purporting to act as their attorney in fact under a certain power of attorney executed by them on May 20, 1871, by which Mary Cosineau, formerly Mary Huot, and John Cosineau, her husband, of the county of Pierce, state of Wisconsin, constituted and appointed said Henry T. Welles their true and lawful attorney “for us and in our names, places and stead to enter into and upon and take possession of any and all pieces and parcels of land or the timber and other material therein in the state of Minnesota and in any state or territory of the United States which we now own or which we may hereafter acquire or become seised of or in which we may now or hereafter be in any way interested and we further authorize and empower our said attorney to grant, bargain, sell, demise, lease, convey and confirm said land or any part thereof ... to such person or persons and for such prices, as to our said attorney shall seem meet and proper,” etc.