38 Kan. 142 | Kan. | 1887
The opinion of the court was delivered by
There is but little controversy regarding the facts of this ease. Johnson entered the land as a homestead, on July 19, 1882, and he had complied with all the conditions of the act of congress respecting the acquirement of title, excepting that he had not resided on and cultivated it the full period of five- years. The improvements which he had made were of a substantial character. His residence thereon had been continuous from the time of entry, and by continuing to meet the requirements of the homestead law for about a year after the trial, and by making final proof, he would be vested with a full and complete ownership in the land and entitled to a patent therefor. The railroad company constructed its road without his consent, and without making or offering to make compensation to him for the damages done. It may also be fairly said that in the view we take, the damages allowed by the jury were not exorbitant. The principal point in controversy is in respect to the measure of damages to which Johnson, being a homesteader, was entitled. The railroad company contends that because he holds under a homestead entry, and has not as yet acquired the full legal title,
“Any person who has settled, or hereafter may settle, on public lands, either' by preemption or by virtue of homestead laws, or any amendments thereto, shall have the right to transfer by warranty against his own acts, any portion of his preemption or homestead ... for the right-of-way of railroads across such preemption or homestead; and the transfer for such public purposes shall in no way vitiate the right to complete and perfect the title to their preemptions or homesteads.”
This enactment indicates the view taken by congress with respect to the interest acquired by the settler. It contemplates not only that he owns the improvements, but that he has an equity in. the land itself, which he may transfer for a right-of-way ; and it provides how that transfer may be made. It further recognizes that until this equity is obtaine'd, by purchase or otherwise, the right of the railroad company to enter and appropriate any portion of the homestead for a right-of-way is incomplete. It is conceded that the defendant in error had made a valid homestead entry, which gave him a preferred right thereto against every individual or corporation, so long as he made compliance with the laws of the United States in regard to the perfecting of his title to the land. It gave him the exclusive right of possession, the right to all the grass and crops grown on the land, to a sufficient amount of the timber, if any was growing thereon, for firewood, and in the improvement of the land, and, by continuous habitancy and improvement for a year longer, the right to the full, legal aud equitable title to the land. Under the laws of the United States, and the rules of the land department, the entryman is entitled to commutation in several forms, and to certain preference rights, aud may also relinquish and sell his improvements and equities in the homestead to another. The relinquishment must, of course, be made to the United States; but under the rules and practice of the land department it may be made so as to fully protect the transferee, if he be a qualified person, to the same right which his vendor enjoyed. With all these rights,
“It is true, a certificate of entry is not then given — the certificate being, under § 2291, Revised Stat. U. S., withheld until the expiration of the five years from the date of such entry, at the end of which period, or within two years thereafter, upon proof of settlement and cultivation during that period, and payment of the commissions remaining to be paid, it is issued; but upon entry the right in favor of the settler would seem to attach to the land, which is liable to be defeated only by failure on his part to comply with the requirements of the homestead law in regard to settlement and cultivation. This right amounts to an equitable interest in the land, subject to the future performance by the settler of certain condi*153 tions (in the event of which he becomes invested with full and complete ownership); and until forfeited by failure to perform the conditions it must, I think, prevail not only against individuals, but against the government. That in contemplation of the homestead law, the settler acquires by his entry an immediate interest in the land, which for the time being at least, thereby becomes severed from the public domain, appears from the language of § 2297, Rev. Slat., wherein it is provided that in certain contingencies ‘the land so entered shall revert to the government.’” (1 Copp’s U. S. Public Land Laws, 1882, p. 388.)
course the settler does not part with the same interest or value that he would if he had the legal title, and he should only receive compensation for the interest taken from him. The court below, however, in its charge and rulings on the admission of testimony, seems to have carefully restricted the jury to an allowance for the injury done to the rights and interest which the settler had in the land. The appropriation and use of a strip of land through the homestead affected the entire tract.
The judgment will be affirmed.