21 Kan. 440 | Ark. | 1879
The opinion of the court was delivered by
The only question presented for our consideration in this case is, whether or not the defendant in •error, Marcus Hardenbrook, is entitled to the benefit of any • of the provisions of the occupying-claimant law. We must .answer this question in the negative. The only portion of .said law under which the defendant claims any right, is that portion which extends the benefit thereof to any person “being in quiet possession of any lands or tenements for-which .such person can show a plain and connected title in law or ■equity, derived from the records of some public office.” (Code, •§ 601; Laws of 1873, p. 203.) The defendant fails to bring himself within the foregoing provision in certain important particulars. T. He not only fails to “show a plain and con■necled title in law or equity” to the land in controversy, but he fails to show any title, plain or otherwise. He does not ■even show an apparent title. Indeed, he does not claim, and has never claimed, to have any title to the land in controversy, but merely claims to have been a bona fide occupant of the land under the act of congress providing for homestead ■settlements. 2. But, whatever his right or interest in the land may be, it cannot be called “a plain and connected title,” •“ derived, from, the records of some public office; ” for, although the public records of the U. S. land office at Junction City ■show what his rights and interests in the land are and were, •yet they do not show that he has “-derived” any right or interest of any kind from such records. On the contrary, they ■show that he has not “ derived ” any right or interest from ■such records. They show that long before the defendant ■occupied the land, or made any claim thereto, it was withdrawn from sale, and from preemption, and from homestead settlement, and that it was set apart for the benefit of the .plaintiff, under the acts of congress of 1862 and 1864, giving lands to aid in the construction of its railroad and telegraph line. And the said records, showing this withdrawal and setting apart of said land, were and are clear, certain and unambiguous. There was no room for any mistake to be made with reference thereto. 3. The defendant does not show that he has the legal qualifications to make a homestead settlement; but from what is shown, probably it should be presumed that he has such qualifications.
Under the above-quoted provision of the occupying-claimant law, we think the whole of the records of any public office to which the occupying claimant himself appeals, as furnishing evidence of his title to the land in controversy, may be taken into consideration so far as such records can in any manner affect the title to such land; and that, to enable him to get the benefit of said provision of the occupying-claimant law, such records should show, prima facie at least, that at •the time he made the improvements on the land he had an interest therein, and that such interest was of that high char.acter which may properly and rightfully be denominated in law or equity a title. No interest less than an apparent title would be sufficient; and this apparent title must be manifest from a consideration of the whole of the'records of the public office to which the occupying claimant himself refers, so far as such récords apply to the case. Of course, if the records should show an apparent title or a prima facie title, that would be sufficient, however defective and worthless the title might in fact be.
At the time the defendant made his said settlement, the title to the land in controversy was in the United States. The plaintiff had some conditional and inchoate equities therein, which were then ripening and afterward ripened into a complete and absolute title, and the defendant had nothing and got nothing by his settlement; and the records themselves upon which the defendant now relies clearly showed ' at all times this condition of affairs.
The judgment of the court below giving to the defendant in error, plaintiff below, the benefit of the occupying-claimant law will be reversed, and cause remanded with the order that judgment be rendered on the special findings in accordance with this opinion.
