162 F. 637 | 9th Cir. | 1908
(after stating the facts as above). The errors assigned relate to the rulings of the court in the exclusion and admission of evidence and the action of the court instructing the jury to find a verdict for the defendant. In our view of the case it will be sufficient to determine the question whether upon the evidence the court was justified in instructing the jury to find a verdict for the defendant.
Section 2387 of the Revised Statutes (43 U.S.C.A. § 718), provides that: “Whenever any portion of the public lands have been or may be settled upon and occupied as a town-site,” it shall be lawful to enter “the land so settled and occupied in trust for the several use and benefit of the occupants thereof, according to their respective interests.”
The act entitled “An act to repeal timber-culture laws, and for other purposes,” approved March 3, 1891 (26 Stat.
It does not appear that at any time during the period involved in the, question of the possession of the lot in controversy any proceedings were taken under the statute by the town of Fairbanks to execute the trust therein provided; but the possession here contended for by the parties to this action is one that may ultimately ripen into a title under such statutes (Malony v. Adsit, 175 U.S. 281, 289, 20 S.Ct. 115, 44 L.Ed. 163), and the court must determine the character of occupancy or possession with that purpose in view. In Bender v. Shimer, 19 L.D. 363, 367, the Secretary of the Interior, in a contest relating to a lot in the town of El Reno in Oklahoma, had occasion to consider the question: “What is the meaning of the word ‘occupancy’ as a term of real estate law, and who is an ‘occupant’ within the meaning of the town site law ?”
The Secretary, in discussing this question, says: “The meaning of the term may differ very materially, it seems, in its application to different kinds of property, according to the use which, from the nature of it, it is commonly designed. ‘Occupied’ always implies a substantial and practical use of a building for the purpose for which it is designed. In insurance law, the terms of a policy contemplate that a dwelling house is occupied when human beings habitually reside in it, and unoccupied when no one lives or dwells in it; that there be in the house the presence of human beings, as at their customary place of abode, not absolutely and uninterruptedly continuous, but the house must be the ‘place of usual return and habitual stoppage.’ Within the meaning of a tax law, the owner of land may be in occupation of it by his tenant. See Anderson’s Law Dictionary, p. 725, title ‘Occupy,’ and cases therein cited. An occupant, within the meaning of the town site law, is one who is a settler or resident of the town and in bona fide actual possession of the lot at the time the entry was made. . One who has never been in actual possession of a lot cannot therefore be said to be an occupant of it. The occupancy must be
In Courtney v. Turner, 12 Nev. 345, 352, the Supreme Court of Nevada, in considering what acts were sufficient to constitute such a possession of public lands as would support an action of ejectment, said: “ ‘Actual possession’ of land consists in subjecting it to the will and dominion of the occupant, and must be evidenced by those things which are essential to its beneficial use. Justice to the community also requires in the circumstances of this country that the extent of the claim should be clearly defined, and that the possession should be open, notorious, and continuous.”
Applying these definitions of “occupancy” and “possession” to the facts of the present case, we find that the plaintiff was not an occupant or in possession of the lot in ques
Leaving tools in the cabin, together with a stove and a few articles of personal property, was not of itself sufficient to retain possession of the premises; nor was the claim made by the plaintiff that he was in poor health a sufficient excuse for his failure to maintain possession of the premises for the period of three years. His poor health did not prevent him from having a representative on the premises. He knew in 1904, while he was in the Hawaiian Islands, that his tools had been taken from the cabin, and that another party had taken possession of the ground; but he took no steps to assert his claim of possession. He was at Valdez, in Alaska, four or five months during the summer of 1905, and still he made no effort to protect whatever right of possession he may have had at that time. He waited until other parties had placed expensive improvements upon the ground before he took action. This does not look like good faith in dealing with the claim of a right of possession on public lands, particularly in a mining camp. Such conduct amounted to an abandonment of the ground in controversy. It is true that he testified in October, 1906, that he never intended to abandon the property; but this declaration cannot, under the circumstances, prevail as against the evidence afforded by his acts.
The judgment of the District Court is affirmed.