22 Kan. 673 | Kan. | 1879
The opinion of the court was delivered by
This case has been brought to this court on a transcript of the record, and not upon a “case-made” for the supreme court, and hence, a motion to dismiss the case for any want or insufficiency of the “case-made,” must be overruled.
The case was tried in the court below, by the' court without a jury, upon the following agreed statement of facts, to-wit:
“It is agreed that the above action may be tried by the court on the 26th day of August, 1878, without a jury, upon the following facts, which are agreed to be all the facts in the • case, with the right of appeal and review to each party, to-wit:
“ 1. The plaintiff went upon the S. E. J section 36, township 22, range 18, Pawnee county, Kansas, the same being school land, the title being in the state of Kansas, about June 1, 1877, and commenced to plow; that he plowed during the summer of 1877, sixty acres, and sowed a part to-*676 wheat that fall; that he plowed ten acres more in 1878, and partly built a sod house in 1877; that he never completed the same, and to the commencement of this suit has never lived on the land. He took the same for the purpose of purchasing it under the laws of Kansas pertaining to the sale of school lands. He harvested the crops sown in the fall of 1877, in the summer of 1878.
“ 2. The defendant went upon the same land for the purpose of ■ purchasing it under the laws of Kansas relating to the sale of school lands, on May- 9, 1878, built a house on. this land, and has resided thereon continuously since. He has plowed some of the land (about thirty acres), and prepared to put in a crop of wheat this fall.
“3. The only question submitted for decision is this: Is actual residence-required for one to become the purchaser of school lands' under the laws of Kansas?
“If it is not so required, the judgment may be for plaintiff for costs, and the injunction may be granted as asked. If it is so required, the judgment may be for the defendant for costs, and the injunction wholly denied.”
The court below upon the agreed statement of facts found as a conclusion of law that an actual residence upon the land was not required to enable the plaintiff to become a purchaser of the same, and therefore the court rendered judgment in favqr of the plaintiff, forever enjoining the defendant from interfering with the plaintiff’s possession, and for costs; to all of which findings, conclusions and the judgment, the defendant duly excepted.
The only question which we think we are called upon to decide is, whether under the laws of Kansas actual residence is required to enable a person to purchase, to the exclusion of others, a particular piece of the school lands of the state. The decision of this question depends entirely upon the construction that may be given to §§ 4, 5, 6 and 20, of art. 14, ch. 122, Laws 1876. (Comp. Laws of 1879, pp.854, 857, §§195,196, 197, 211.) Under said sections, only persons who have “settled upon and improved,” or who are “actual settlers” upon such lands, can so purchase them to the exclusion of others. Sections 4, 5, and 6, use.the words “settled upon and improved,” while § 20 uses the words “'actual set-
A person who has done nothing more than to make improvements on the land cannot, under §§4, 5 and 6, purchase the same. He must also have settled upon the land. In the language of these sections, he must have “settled upon and improved ” the land. Both are necessary. Probably a person might, by going upon school land, and making improvements thereon, with the bona fide intention of becoming a settler thereon, obtain rights thereto, which would date from the very first moment of his occupancy; but he evidently could not purchase the land as an exclusive purchaser until he had completed his settlement. If he did not go upon the land with the intention of becoming a settler (and that seems to be this case), evidently he would not obtain any rights thereto or thereon. A person residing in New York, or anywhere else in the world, might take possession, and actual possession, of school lands of Kansas, and possession not only of one piece, but of many pieces, and might make improvements on all of such pieces; but we would not think that he would thereby become a settler upon all of such pieces, or indeed upon any one of them, or that he would thereby get the exclusive right to purchase, the same; nor would we think that he would obtain any exclusive rights in or to any of them. But according.to the theory of the plaintiff in the court below, he would obtain the exclusive right to purchase every one of them. Where the plaintiff in the present case resides, the recoi’d does not show, and we are not informed.
Section 20, above referred to, after providing for the pur
The judgment of the court below will be reversed, and the cause remanded with the order that judgment be rendered upon the agreed statement of facts, in favor of the defendant and against the plaintiff for costs, and that the injunction prayed for by the plaintiff be denied.
