154 P. 328 | Wyo. | 1916
Lead Opinion
In this case the plaintiff in error, who was the lessee and in possession of section 36, township 56, range 79, in Sheridan County, sought to enjoin the defendant in error, whose
The only questions, therefore, that can be considered are whether the conclusions of law and the decree are sustained by the facts found. The facts as found by the court, so far as necessary to an understanding of the questions presented, are, in substance, that plaintiff at the time of the commencement of the action (October 5, 1914) and for eight or ten years prior thereto was the lessee of said section 36, from the state, and in undisputed possession thereof; that plaintiff at the time of going into possession of said section enclosed the same with a fence belonging to him; and that the same had been so enclosed for several years last past, and that up until the time hereinafter named and the connection of- the defendant with the transaction the plaintiff’s possessory right to the tract of land enclosed had not been disturbed or questioned; that the fence erected by the plaintiff along the north line of his enclosure for the purpose of enclosing the aforesaid section 36 was not at any time, and is not, upon the north boundary of said section, but is wholly upon section 25, in the above named township and range, and several hundred feet north of the boundary line aforesaid; that the effect of the erection of such fence by the plaintiff was to include in his enclosure not only section 36 aforesaid, but a strip of land off the
From the foregoing finding of facts the court concluded as matters of law, briefly stated, that the portion of plaintiff’s fence situated on section 25 was at all times unauthorized and illegal. That at least from the time of the actual settlement, occupation and establishment of his residence upon said homestead, defendant succeeded to the rights of the United States in respect to the occupation of said land and the maintenance of any fence thereon. That plaintiff was entitled to a reasonable time within which to remove his fence after said defendant’s filing. That a rea
That plaintiff’s enclosure of a part of the public domain with land to which he was lawfully entitled to the possession, by a fence erected and maintained on the public land, was unauthorized and illegal is beyond dispute. It is equally true that one who has made a homestead entry upon the public lands of the United States and has complied with the laws, and the regulations of the Land Department is entitled to possession. The court having found the fact to be that the fence was upon land embraced within defendant’s homestead entry, and that plaintiff had failed to remove it within a reasonable time, and it being unlawfully there, he cannot invoke the powers of a court of equity to assist him in maintaining his unlawful possession or to restrain one lawfully entitled to possession from removing such fence. The court found that defendant was removing the fence to the true boundary line between said sections. But it is here contended that the establishment of that line by the county surveyor was insufficient. That argument goes to the sufficiency of the evidence presented. to the court upon which it found the fact as stated, and the evidence not being brought up, this court is foreclosed from considering that question and must take the findings of the trial court as conclusive. The survey and location of the line as made by the county surveyor was competent evidence of the true location of that line as established by the government survey, and the statute (Sec. 1292, Comp. Stat. 1910) expressly provides-that the county surveyor’s cer
Rehearing
ON PETITION FOR REHEARING.
A petition for a rehearing has been filed in this case. At the time the opinion was handed down the court was of the opinion that the conclusions of law and judgment of the district court were sufficiently supported by the facts found by that court. We are still of that opinion.
Rehearing denied.