59 P. 931 | Idaho | 1900
This is an appeal from an order of the district court, granting a new trial. The complaint purports to be in an action of claim and delivery, and avers ownership of the property sought to be recovered in the plaintiffs on the sixth day of May, 1896; avers value of the property on the sixth day of May, 1896; avers the taking of possession of the property by the defendant on the same date, and his continued holding since that time; avers, generally, that plaintiffs have repeatedly demanded possession. The action was commenced on September 7, 1898. We have earnestly and studiously sought for some authority upon which we could sustain this
Inasmuch as this case must be remanded for a new trial, we deem it proper to announce our view upon some of the questions of law which will necessarily arise upon a retrial of the case. We think it is the undoubted rule of law that where a person has m good faith entered upon public lands of the United States, and made or caused to be made valuable improvements thereon, although his right to make entry of such lands under the land laws of the United States may be defeated, he is not by reason thereof deprived of Ms property in such improvements, and is entitled to remove them upon reasonable notice, after the question of title has been finally settled-We see no reason why the fences inclosing the premises in this case should be excepted from the plaintiff’s right of recovery. '“In determining whether a thing is a fixture or not, the relation of the parties must be considered.” When the plaintiffs placed the fence around those premises, the land was public land of the United States. The defendant had no color of