Cox v. Hart

270 F. 51 | 9th Cir. | 1921

GILBERT, Circuit Judge

(after stating the facts as above). Decision of the controversy on the merits, both in the land office and in the court below, turned on the question whether or not the appellee was entitled to the preference right conferred by the act of Congress of March 28, 1908 (Comp. St. § 4681), which provides that entries, under the Desert Land Acts—

“shall be restricted to surveyed public lands of the character contemplated by said acts, and no * * * entries of unsurveyed lands shall be allowed or made of record: Provided, however, that any individual qualified to make entry of desert lands under said acts who has, prior to survey, taken possession of the tract of unsurveyed desert land not exceeding m area 320 acres in compact form, and has reclaimed or has in good faith commenced the work of reclaiming the same, shall have the preference right to make entry of such tract under said acts, in conformity with the public land surveys,' within ninety days after the filing of the approved plat of survey in the district land office.”

In the proceedings in the land office it was found that the appel-lee was prior in possession and had in good faith commenced the work of reclaiming the land in controversy, but her preference right to make entry was finally denied by the Assistant Secretary on the ground that the lands were not unsurveyed lands, but were in fact surveyed lands under the survey of 1856, and that the act of March 28, 1908, had no application whatever thereto, and that the appellant was first in right by reason of being the first to file proper application pending the resurvey, and the first to file application after the filing of the resurvey plat.

[1,2] The appellant contends that the appellee was not a settler on the land in controversy, and that the acts which she performed, thereon gave her no right thereto at the time when he made his residence thereon and filed his first application, and that the filing of that application on July 17, 1907, was the first act of any one to create a right to the land. But the land was not then vacant and unoccupied. In the Land Department it was found that the appellee in 1906 in good faith commenced the work of reclaiming the land in dispute before the entrance of the appellant thereon. In the case of Hart v. Cox, 171 Cal. 364, 153 Pac. 391, it was adjudged that the appellee’s acts in posting notice, running furrows around the entire tract, cultivating tracts both upon the east half and the west half of her claim, constructing ditches, instituting irrigation, setting stakes, and in laying out lines for future irrigation, were sufficient to prove possessio pedis upon the whole tract whereupon to maintain ejectment, and the court held, in view of those facts, that it was unnecessary that she should have placed improvements upon every acre of the tract; that she had entered upon the land and was adopting the usual means of improving it.

The Desert Land Acts (19 Stat. 377; 26 Stat. 109 [Comp. St. §§ 5029-5035]) do not require residence on the land. The principal requirements are that the claimant shall file a plat showing the mode of contemplated irrigation and shall expend a prescribed amount per acre in making permanent provision for such irrigation, and in addition thereto shall cultivate one-eighth of the land. In the Case of Virgil Patterson,, 40 L. D. 264, it was held that the possession and improvement contemplated by the act of March 28, 1908—

“are not such as are required of a settler under the homestead law, but it is sufficient under that act if the possession and improvement conform to the requirements of the Desert Land Law and evidence the party’s good faith under that law.”

[3] We are of the opinion that the court below properly held that at the time when the claims of the parties hereto were initiated the land was unsurveyed land, and that the act of March 28, 1908, was applicable thereto and conferred a preference right upon the appellee: The act of 1902 authorizing a resurvey was a legislative declaration that the lands were tó be regarded as unsurveyed lands, that a new survey was to be substituted for the old, and that by the new survey the future disposition of the lands was to be regulated. By a proviso in that act protection was afforded as to then existing claims of occupants. The inference follows that as to all whose rights were initiated thereafter, the resurvey was intended to be controlling. This was the construction placed upon the act by the Band Department. By an order of the Commissioner of the Band Office of March 31, 1906, all entries in Imperial Valley were suspended after that date. About a year later the Commissioner directed that the order of suspension of said lands from entry be modified, so as to permit “the desert land entry thereof the same as though the lands were unsurveyed.” In Nichols v. McCullom, 169 Cal. 611, 614, 147 Pac. 271, 273 (L. R. A. 1915F, 638), the court said:

“The public lands are under the exclusive control of Congress, until title or a right to acquire title has, pursuant to some law, vested in some person or body corporate other than the United States. A person who claims no right in such public lands certainly cannot object to the act of Congress in abandoning a survey already made, and substituting another in its place.”

The decree is affirmed.