12 Nev. 65 | Nev. | 1877
Lead Opinion
By the Court,
On the thirtieth day of November, A.D. 1867, the district judge of Lyon county, acting under and in pursuance of the act of congress, entitled “An act for the relief of the inhabitants of cities and towns upon the public lands,” approved March 2, 1867, entered in the land-office at Carson city, Nevada, the land embracing the town-site of Silver city, ‘ ‘ in trust for the several use and benefit of the occupants thereof, according to their respective interests.” (lit
The plaintiff and defendant, within the time prescribed by said acts, each filed a statement in writing, claiming the land in controversy in this suit, and the district judge, in pursuance of the provisions of section 5 of the act of 1869, certified the papers and proceedings relating to the adverse claim of the respective parties to the district court of Lyon county.
The land in controversy is the east fifty feet of lots number 1, 4, 5, 8 and 9, in block number 18 of the town survey of Silver city, being fifty feet in width and two hundred feet in length.
The plaintiff in his complaint, after stating these facts, among other things, alleged: That on or about the fifteenth day of November, A.D. 1870, one "W. IT. Douglass, a citizen of the United States, and an inhabitant of said Silver city, went upon, took up, located, occupied and improved the land which was then unoccupied and vacant public land of the United States, and continued to occupy and possess the same until the twelfth day of April, a.d. 1871, when he conveyed the same, by deed, to C. D. McDuffie, W. E. Dunbar and D. L. Hastings; that on or about the twentieth day of January, a.d. 1873, the said C. D. McDuffie, W. E. Dunbar and D. L. Hastings, conveyed the said land and premises to the plaintiff; that from the said fifteenth day of November, a.d. 1870, the plaintiff and his grantors and predecessors have been rightfully in the occupancy and possession of said land; that plaintiff is now rightfully entitled to the possession of said land and to receive a deed for the same from the district judge; that-said defendant has never
Upon the trial the plaintiff proved his claim substantially as alleged in his complaint. In 1870, when Douglas entered upon the land, he set stakes at the corners of the land and built a house upon the ground in controversy, and resided therein with his family until the time of the conveyance to McDuffie et al. The plaintiff, ever since the twentieth day of January, A. d. 1873, has resided upon said premises and used and occupied the same as a family residence. The defendant claimed a deed to the whole of block 18, and the proofs offered by him in support thereof established the following facts, viz: That on the fourteenth day of January, A. D. 1861, one Cyrus S. Kellogg, who is not shown to have had any interest in the land, conveyed the whole of block 18, to the defendant, as agent of, and in trust for the Carson Elver Gold and Silver Mining company; that during the year A. d. 1861, the defendant set posts at a distance of eighteen feet apart, around the whole of said block, with the exception of three lots on the northwest corner; that some of the posts remained upon the ground for two or three years but most of them were removed in a very short time and used as firewood; that in 1865 one William H. Pride, acting for the defendant, built and occupied a board cabin, twelve by eighteen feet in size, upon a part of block 18, and cut a ditch, one foot wide and one foot deep, around the whole block, except lots 2, 3 and 6, which ditch soon filled up with sand; that, in consideration of this work, the defendant conveyed to said Pride one lot in said block; that on the eighth day of March, A. d. 1865, the defendant leased the whole block to Pride for the period of one year; that Pride afterward sold and conveyed his interest in the lot to one J. F. Graham, who conveyed it
With these facts in evidence the court, among other things not objected to, charged the jury as follows:
“First. The statute under which this action is instituted is to the effect that no one is entitled to the benefit of its provisions unless he is an actual occupant. Actual occupation is absolutely necessary in order to confer any right to a lot of laud within the town-site;
“ Second. The mere planting of posts around a lot of land and placing a Avire around them, or digging a shallow ditch around it, not sufficient to constitute an inclosure, Avithout a residence upon the lot or placing it to some useful purpose, do not constitute an actual occupation;
“Third. If the jury should believe from the evidence that the plaintiff entered upon the lot of land in controversy in this action, and that at the time of such entry such lot of land was unoccupied and vacant, and that the plaintiff, since such entry, has occupied such lot of land as his residence, then the jury should find for the plaintiff;
“Fourth. If the jury should believe, from the evidence, that the defendant AA'as the first occupant of the lot of land,*70 and that while the defendant was such occupant that the plaintiff entered upon the lot and ousted the defendant therefrom, then the jury should find a verdict in favor of the defendant.”
Under these instructions the jury found a verdict in favor of the plaintiff. The defendant then moved for a new trial, which was refused, and this appeal is taken by defendant from the order of court overruling his motion for a new trial and from the judgment of the court awarding the land to the plaintiff. The first and most important question presented for our decision is whether or not the court erred in overruling the demurrer to plaintiff’s complaint. It is argued by appellant that inasmuch as the claim of plaintiff to the land in controversy is subsequent to the date of the entry of the land in the land-office for a town site, that he could not assert or claim any right to the- land under the provisions of the law of this state which makes it the duty of the district judge holding the title to convey the same “to the person or persons who shall have, possess or be entitled to the right of possession or occupancy thereof, according to his, her or their several and respective right or interest in the same, as they existed in law or equity at the time of the entry of such lands.” (Stat. of 1869, p. 68, sec. 2.)
Ordinarily, the rights of the parties under the law relates back to the time of the entry of the land, and their rights are to be determined as they existed at that date, and there can be no doubt that if the defendant in this case, at the time of the entry of the land by the district judge, was an “ actual occupant” of the land within the meaning of that term as used in the act of congress, he would, as agaiust the claim of plaintiff, have been entitled to a deed, unless he had abandoned his interest prior to the time when Douglas took up and claimed .the lots in dispute. It was held in Leech v. Ranch (3 Min. 454), that when the proper proofs are made in the land-office the occupants of the town site acquire certain vested rights, and are eo instanti entitled to the benefits of the land, and this decision ivas followed in the case of Castner v. Gunther (6 Min. 119.) In both of
Here the only question presented by the demurrer is, whether a party who enters upon, locates and becomes an actual occupant of vacant and unoccupied lots of land within the limits of a town-site, after the entry of such town-site in the land-office, and before the issuance of a patent by the government of the United States, is. entitled to a deed under the provisions of the 'act of congress.
In the consideration of this question we must not lose sight of the fact that the act of congress Avas intended for the benefit and protection of the actual citizens of the town against those making claim to the land for purely speculative purposes. (Matter of Selby, 6 Mich. 193; Winfield Town Company v. Maris, 11 Kan. 128; Jones v. City of Petaluma, 38 Cal. 397; Alemany v. City of Petaluma, 38 Cal. 554.)
It must also be remembered that the act of congress is the paramount law, and that the legislature of this state, in prescribing the rules and regulations for the execution of the trust arising under said act of congress, cannot limit or extend the rights of claimants, or dispose of the trust in any other manner than is prescribed by the act of congress; and, if there is any provision to that effect in the statute of this state, it is clearly inoperative and void. (Winfield Town Company v. Maris, supra.)
There is nothing in the act of congress which limits the proof upon the part of the respective claimants to their interest in the land as it existed at the time of the entry. We are of opinion that if the land in controversy in this suit was at that time vacant and unoccupied, as alleged in plaintiff’s complaint, it was subject to location and occupancy by any person at any time prior to the issuance of a' patent. Until the patent issues the government does not
From this construction of the law it follows that the court did not err in overruling the demurrer to plaintiff’s complaint.
Instructions one and two as given by the court are not erroneous. This court has twice decided that to entitle an applicant under the law of congress, or of this state, to a deed, he must be an actual occupant or entitled to the occupancy of the land. (Treadway v. Wilder, 8 Nev. 98; 9 Nev. 67.)
The land department of the government, in its rulings, declares that the only beneficiaries of the trust, under the town-site law, are the occupants of the town. (1 Lester, Land Laws, 435.) The several courts wherein this question has been presented have uniformly announced the same doctrine. (Leech v. Ranch, 3 Min., 451; Carson v. Smith, 12 Min., 560; Cash v. Spalding, 6 Mich., 213; Winfield Town Company v. Maris, 11 Kan., 148; Sherry v. Sampson, 11 Kan., 615.)
These decisions were nearly ail rendered under the act of congress, approved May 23, 1844 (5 U. S. Stat. 657), but the provisions of the act of 1867, in so far as this question is concerned, are identical with the provisions of the act of 1844.
To be an occupant, the party must have the actual use or possession of the land. The acts necessary to constitute possession must, in a great measure, always depend upon
The second instruction is inartificially drawn, and contains matters which, under the proofs, were not strictly at issue in this case; but it is evident that the jury were not misled thereby to the prejudice of the defendant. There was no proof tending to show that the defendant ever stretched a wire around any portion of block 18, until long after the rights of plaintiff were acquired. Conceding it to be true that defendant by placing posts around the block in 1861, and digging a ditch around it and building a cabin on one corner of it in 1865, had planted a germ which might expand and open into a title; or, for argument sake, conceding that in the year 1865, during the occupancy of Pride, that defendant’s title w'as good as against every one, except the government of the United States. Yet it must, as we think, be admitted that if the defendant failed to do such acts as were necessary to complete and perfect his title, or failed to keep his title good by keeping actual possession of the land, and that if the land was abandoned by him, or left vacant and unoccupied prior to the entry of plaintiff, then it certainly follows that defendant could not strengthen his claim to the land by any acts committed by him after the actual occupancy of the premises by plaintiff and his grantors.
The third and fourth instructions given by the court clearly and correctly state the rule of law applicable to the particular facts of this case.
The court did not err in overruling defendant’s motion for a new trial. At the time Douglas entered upon and took
After the year 1865, the defendant did not, nor did any one in his behalf, reside upon the land. He did not cultivate it; lie did not inclose it; he did not use it for any purpose whatever. In short, he did not exercise any acts of dominion or control over the land until 1873, after the plaintiff’s rights had been acquired. Under these circumstances the rights which defendant had to the land in controversy in I860 were lost by his failure to keep his claim good, and thereafter any person had the right to enter upon and take possession of said land and become an actual occupant thereof.
From the evidence in this case we are satisfied that at the time of the issuance of the patent by the United States the plaintiff’s right to the possession of the land was superior to the claim of the defendant, and that the verdict of the jury was right.
The judgment of the district court is affirmed.
Concurrence Opinion
concurring:
The law under which this controversy is conducted (Stat. 1869, p. 68; Stat. 1871, p. 123) requires the town-site trustee to give public notice of the receipt of the patent, and provides that all claims to town lots which are not presented within six months after the first publication of such notice shall be forever barred. It does not require or authorize the trustee to take or to demand any proofs of the validity of the claims presented, but seems to contemplate that, except in case of adverse claims to the same lot or parcel of laud, he shall at the expiration of the time for filing claims, as a matter of course, convey to all persons the lots or parcels claimed by them respectively.
In case of a contest, provision is made for litigating the adverse claims in the courts, and when the case is finally decided, the result is io be certified to the trustee, who is required to convey tho title to the prevailing party.
It seems to me impossible to reconcile these provisions
This very case affords a striking illustration of the absurd results which would follow from the construction of the law contended for by the appellant. The respondent, by his grantors and predecessors, Avas in possession of the lot in controversy long before the issuance of the patent, but not at the date of the entry of the toAvn site. The appellant had occupied, but, according to the proof, had abandoned, the premises long before* the entry. There is no possible construction of the laAvs of congress or of this state under Avhich he Avould be entitled to a deed, and yet if his position is tenable the respondent cannot prevail in the contest, and, because the respondent cannot prevail, he must. This result is brought about in the following manner: The respondent, being the actual present occupant of the disputed premises, was naturally the first to apply for a deed. The appellant subsequently filed his adverse claim. Under the statute the contest Avas transferred to the district court, and there, by express provision of the laAv, the first claimant Avas plaintiff, the second claimant defendant. The plaintiff filed a complaint setting out the particulars of his claim, and the defendant demurred. If his construction of the law is correct, his demurrer should have been sustained, and, as the plaintiff could not have amended, there would have been nothing for the court to do except to give judgment for the defendant and certify the result to the trustee, who, under the law, must have given him a deed, although he had not shown, and never could have shoAvn, any right to it Avhatever. This, it seems to me, is a complete reductio ad absurdum. It never could have been intended that a contestant Avithout the shadoAV of a claim to a lot, should
To reconcile the language of section 2 of the act to this view of its general scope and intent, it is only necessary to suppose that that language is to be limited in its application to cases in which there was an occupation at the date of the entry, and that it does not apply to cases in which the land was vacant and unoccupied at that date.
It will be seen that I have thus far confined myself to a discussion of the state law, without referring to the terms or the construction of the act of congress. I have done so for the reason that the appellant bases his argument exclusively upon the provisions of the state law, and because, as above stated, there is no possible construction of the law of congress under which he could have claimed the right to a deed from the trustee. But the law of congress is undoubtedly the paramount law, and must be allowed a controlling force so far as its provisions extend. It allows the entry and purchase of town-sites in trust for the “occupants.” The wmrd “occupants” as used in the act of congress must have some definite meaning, and it is of great practical importance wdietlier it shall be construed to include those only who were occupying at the date of the entry, or to extend to those who commenced occupying at any time thereafter. In the opinion of the court, and of the district judge, it includes all who occupy before the issuance of the patent.
Eor these reasons I concur in affirming the judgment.
