61 P. 422 | Or. | 1900
Lead Opinion
delivered the opinion of the court.
This is a suit by the Pacific Livestock Company (a corporation) against James Gentry to enjoin an alleged trespass, and to recover damages therefor. The facts are that one James Sullivan, having settled on unsurveyed public lands of the United States known as the “Rinehart Springs Ranch,” in Malheur County, Oregon, cleared about 40 acres thereof, which he sowed to> alfalfa, irrigating it with water from springs thereon, and about 1888 sold said improvements to plaintiff, a corporation engaged in raising cattle in Harney and Malheur counties. This ranch is situated on the Owyhee River, which at that place has almost precipitous banks from 1,000 to 1,500 feet high, so that it is impossible
Under an act of congress approved June 4, 1897 (30 Stat. 36), one F. A. Hyde, having selected the land included in the Rinehart Springs Ranch, and such selection having been approved, executed deeds to plaintiff, relinquishing all his interest in said premises. The plaintiff, having secured said deeds, instituted this suit, alleging that it is the owner in fee of the real property known as the “Rinehart Springs Ranch,” particularly describing the same; that the defendant was employed by it tortake charge of said premises; that while so employed he converted to his own use about 150 tons of hay cut from and stacked on said land by its employees; that he willfully ejected its servants from'the said ranch, and refused to permit them or the plaintiff’s agents to go upon or take possession of the land, and wrongfully claims to be the owner thereof, to plaintiff’s damage in the sum of $2,000. The defendant, after denying the material allegations of the complaint, avers that on October 21, 1894, he was a citizen of the United States over the age of 21 years, and qualified to malee a homestead entry on its public lands; that on said day the W. J4 of the N. W. J4> the N. E. 34 of the S. W. 34, and the N. W. 34 of the S. W. 34 o:f section 19, in township 27 south, of range 42 east of the Willamette Meridian, being unsurveyed public lands of the United States, he settled thereon, claiming the same under the homestead laws of the United States, and intending to make an entry thereof as soon as he could file thereon; that ever since he established such residence he has been in the
A careful examination of the testimony leads us to conclude that the court erred in finding that the defendant did not enter into possession of the Rinehart Springs Ranch in pursuance of any agreement or employment with plaintiff, and that he did not hold the premises for its benefit. The defendant’s theory is that plaintiff surrendered to him all its interest in the land, and paid him $25 per month for three years, in consideration of the hay grown on the place and
The usual policy of the general government for many years, except in cases of extensive grants to aid corporations in developing the country, has been to reserve the public domain for its citizens, whoi have been permitted to secure title
Plaintiff did not make, and was not capable of making, a settlement in person upon the land; and it was not, nor could it become, a citizen of the United States, in the sense required by the acts of congress, and hence it was not a qualified settler upon the public domain. To- permit a corporation to hold public lands, the improvements upon which had been transferred to it by a settler, would thwart the public policy of the government, and often enable the purchaser of such improvements to control, as in the present instance, vast areas of grazing lands, in consequence of securing the use of the waters, which alone render such lands valuable. Our attention has been called to the case of Tidwell v. Chiricahua Cattle Co. (Ariz.), 53 Pac. 192, which seems to tolerate such conditions, but that case was an action at law under a statute of Arizona which permitted ejectment to> be maintained upon proof of settlement upon and cultivation' of public lands. Whatever the rule may be in an action at law, we cannot think that the claim of a private corporation to> hold possession of public lands, thereby preventing actual settlers from securing the advantage of the laws enacted for their benefit, appeals very strongly to a court of conscience. Plaintiff, being a private corporation, could not, under such general policy, secure in its own right the title to- any of the public lands of the United States; but, the Rinehart Springs Ranch being very valuable to the plaintiff, it adopted a method to circumvent the policy of the general government, and to secure the title to1 this property, so' necessary to the prosecution of its business.
Gilchrist testified that prior to 1897 the Pacific Livestock Company expected to secure the title to- the Rinehart Springs Ranch by state selection. As we understand the witness, the mode thus intended to' be pursued undoubtedly contemplated a selection of the tracts which plaintiff desired by an
Rehearing
Decided 8 July, 1901.
On Rehearing.
delivered the opinion of the court.
A rehearing of this cause having been had upon appellant’s petition therefor, we conclude, after a careful re-examination of the testimony, that the inference spoken of in the former opinion, so far as it relates to any agreement of the defendant to convey the Rinehart Springs Ranch to plaintiff .upon securing a title thereto, is not deducible therefrom. The testimony of Gilchrist, plaintiff’s superintendent, • that no agreement was ever entered into with Gentry, by the terms of which he was to prove up on the land and give the company the first chance to buy it, is corroborated by Gentry, who testifies that he never promised to deed the land to anybody; that Charles Jones, the plaintiff’s assistant superintendent, placed him in possession, telling him to stay on the place until it ivas surveyed, and then to file on it as a homestead. This latter statement is corroborated by E. Mefford, who testifies that Jones told him Gentry owned the place, and by Maurice Fitzgerald, who says that Jones told him Gentry was to file on the land when it should be surveyed. The defendant’s testimony in this particular would seem to be corroborated also by Gilchrist, who states that he instructed plaintiff’s employees to recognize Gentry’s authority, as be
The Rinehart Springs Ranch having been unsurveyed public lands of the United States when James Sullivan, the plaintiff’s predecessor, settled thereon, his claim thereto was that of a “squatter,” in speaking of which Mr. Justice Miner, in Rio Grande W. Ry. Co. v. Telluride Power Transmission Co.; — Utah, — (63 Pac. 995), says: “A homestead or squatter’s right is a personal right, and the possession under it must be personal:” The plaintiff, being a private corpora