63 Cal. 514 | Cal. | 1883
The question involved in this appeal, as stated by appellant's counsel, is as follows: —
“ Can a qualified pre-emptor, intending at the time of settlement to take the whole of a quarter section, one. hundred and sixty acres, initiate a valid claim to the whole by performing acts of settlement on one eighty, while the other eighty is enclosed and cultivated by another person, before and at the time the attempt begins?"
It is insisted by appellant that the officers of the land department of the United States erred in law, in holding that a qualified pre-emptor could, under the circumstances stated, initiate his claim and acquire title to the eighty acres so in possession of another person.
Appellant relies upon Atherton v. Fowler, 96 U. S. 519; Hosmer v. Wallace, 97 U. S. 575; and Trenouth v. San Francisco, 100 U. S. 251.
These cases do not sustain his position. In Atherton v. Fowler, it was held: Ho right of pre-emption can be established by a settlement and improvement upon a tract of public land where
In Hosmer v. Wallace the defendant was a purchaser from a Mexican grantee. At the time when the plaintiff settled upon the land it was within the exterior limits of the grant, and was not “public land” within the meaning of the pre-emption laws. In 1862 the plaintiff was evicted by legal process. The Supreme Court of the United States held that the plaintiff acquired no right to pre-empt, by virtue of his occupation, prior to the date last mentioned. After that date it would seem that the plaintiff occupied a subdivision adjoining the exterior line of the Mexican grant and' adjoining the tract in possession of the defendant—the purchaser from the Mexican grantee. By the Act of Congress of 1866, the defendant acquired the right to pre-empt the tract he had purchased—a right which he enforced in the land department. The plaintiff, as a pre-emption claimant, had not made entry, paid for the land, and obtained a patent certificate before the passage of the Act of 1866. It was held the plaintiff had acquired no vested right when that act was passed, and that it was competent for Congress, by that act, to give to the defendant the superior right of pre-emption; “to deal with the land as it chose.” (Frisbie v. Whitney, 9 Wall. 187; The Yosemite Valley Case, 15 Wall. 77.)
Trenouth v. San Francisco, construed the act to quiet the title to certain lands within the corporate limits of San Francisco. (14 Stats. 4.)
In Hosmer v. Duggan, 56 Cal. 257, cited by appellant, as in Hosmer v. Wallace, supra, it is said that a possession of lands, without the exterior limits of a Mexican grant, did not create a valid pre-emption right, to lands within the exterior lines of the grant, in the actual possession of another—even though upon a subsequent survey by the government the land should be excluded from the grant. This language is to be interpreted in the light of the circumstances of the cases. In both, the person in possession of the land, within the exterior limits of the Mexi
In Davis v. Scott, 56 Cal. 170, also cited by appellant, the defendant invaded the plaintiff’s actual possession, ousted and withheld the possession from him. His acts of settlement were within the actual possession of another.
The cases in Lester referred to by appellant do not sustain the view of the law he insists upon. In the case of Flickinger, to which our attention is particularly called (1 Lester L. L. p. 397, No. 446), the Secretary of the Interior held that Fliokinger Avas not entitled to land by him claimed, because it appeared he Avas not occupying for his own benefit, but as servant of another, and that he had another claim in the “Big Woods” at the time he was occupying the land then in controversy.
Judgment affirmed.