Fulmele v. Camp

20 Colo. 495 | Colo. | 1895

Mr. Justice Goddard

delivered the opinion of the court.

The appellee contends that the district court .was without jurisdiction to entertain this action, because the claims of the respective parties to the land in question were pending on a contest in the land office. It will be conceded that the courts are without jurisdiction to determine the right of contending parties to purchase public land while a controversy is being waged before the proper officers of the interior department to settle such right, and will refuse to aid either party, by way of affirmative relief, until such controversy is finally determined by that department. But their jurisdiction to prevent the wrongful invasion of the possession of one in the actual occupancy of the public domain, so long as the title remains in the government, is not only expressly conferred by our statute, but is essential to the maintenance of the peace and order of the community. In the exercise of this jurisdiction, the courts do not attempt to pass upon the merits of the respective claims of the contending parties and decide which has successfully initiated and established his right to ultimately receive the legal title to the land, but only protect the actual possession, and prevent the wrongful and forcible interference therewith, until the government parts with its title.

Eliminating from the pleadings all averments relating to the claims upon which the plaintiff and defendant found their right to purchase the land from the government, as preemption or homestead claimants, there remains the statement of a cause of action which the court below clearly had the jurisdiction to hear and determine. It is averred that plaintiff and his grantors had been in the actual and undisturbed possession of the land in question for three years prior to the 15th day of August, 1889 ; had inclosed the same with a good and substantial fence, and raised crops thereon during this time ; that on the 15th day of August, 1889, and while plaintiff was so in the sole, exclusive, peaceful possession, defendant wrongfully and forcibly cut the fence'and entered upon the land without his consent or permission, and by virtue of said wrongful entry remains in possession of the major part of the premises.

The court below found that the testimony sustained these allegations. To hold that the party whose possession is thus invaded is remediless pending a protracted controversy before the officers of the land department, and until they shall have determined that he has the right to purchase the land and receive the title from the government, is to “bring chaos instead of social order; to make the court a useless formality, and the law an object of contempt.”

With this view, it becomes unnecessary to consider whether, under the circumstances alleged in his answer, the defendant initiated a valid homestead right by his filing in the land office, since, if valid, it would not, under the circumstances, justify forcible entry upon the possession of plaintiff. It follows that the judgment of the court below must be affirmed..

Affirmed.