129 P. 809 | Cal. Ct. App. | 1912
Action of forcible detainer. Judgment for plaintiff. Defendant moved for a new trial, and from an order denying his motion, prosecutes this appeal.
The action grows out of the following facts: The land, consisting of one hundred and sixty acres in Imperial County, was, in 1903, unoccupied government land. In February of said year, one Johnson made a desert-land entry thereon, and in July, 1905, made final proof of occupation and reclamation thereof. In June of said year she assigned and transferred her title and interest therein to plaintiff, who, on June 28, 1907, after doing considerable work in improving the same, leased it to one Williams, at an annual rental of four dollars *551 per acre, for a term of three years, and he in turn sublet to other tenants, who cropped the same or a portion thereof. In January, 1908, defendant Sanders attacked the entry of Johnson and that of plaintiff, as her assignee, by filing in the United States land office at Los Angeles a contest based upon alleged fraud in the making of the entry. Upon trial this contest was decided against plaintiff, and defendant Sanders was awarded the preferential right of entry upon the land, which decision was, upon appeal, affirmed by the secretary of the interior. Thereafter, within thirty days of the notice granting to him the right of entry upon the land, defendant Sanders filed in the United States land office his application for entry of the same as a homestead, which application was duly allowed, and about September 1, 1910, he, without consent or knowledge of plaintiff, entered upon the land. At the time when Sanders took possession the term for which plaintiff had leased the land to Williams and that of the subtenants had expired, though the crops grown the last year had not been removed therefrom by the tenants. These tenants, considering that their lease had expired, made no objection to Sanders's entry, and plaintiff, who was not present at the time, did not know of the entry until some time thereafter, when, upon learning of it, he brought this suit.
The action was brought under subdivision 2 of section
That at the time of defendant's entry plaintiff was, and for several years had been, subject to the rights of his tenants, in the peaceable possession of the land, and that he had during such period fenced, leveled, and prepared it for irrigation and caused annual crops to be grown thereon, admits of no controversy. While plaintiff did not reside upon the land, nevertheless, since admittedly the rights of the tenant had terminated with the expiration of the lease, he was the occupant in the peaceable and actual possession thereof and exercised exclusive control and dominion over it. (McCormick v. Sheridan,
Conceding all this to be true, appellant's contention is that the effect of these findings was nullified by the court finding in accordance with an allegation of the answer, "That on or about the sixteenth day of May, 1910, the commissioner of the general land office, department of the interior of United States, in the case of Louis N. Sanders v. Orpha C. Johnson andGordon L. Dutcher, assignee, cancelled a previously existing desert-land entry upon said land, under which desert land entry the said Gordon L. Dutcher was claiming said land, and awarded a preference right of entry to said Louis N. Sanders; that on or about the 1st day of August, 1910, the defendant Louis N. Sanders made homestead entry of said land at the U.S. land office at Los Angeles, California, and paid the required fees thereon, and was given homestead receipt therefor." The allegation had no proper place in the answer and evidence in support thereof should have been excluded. Had the court given the finding the effect contended for by appellant, the error would have been ground for reversal upon an appeal prosecuted by plaintiff. Such facts so found did not warrant the action of defendant in retaining possession of *553
the land, and by its conclusion of law based upon the findings the trial court so held. We are in full accord with this ruling. Appellant's claim finds apparent support in the case ofGoldstein v. Webster,
The order is affirmed.
Allen, P. J., and James, J., concurred.