Neal v. Kayser , 12 Ariz. 118 ( 1909 )

KENT, C. J. —

This is a statutory action, brought by Neal in the district court to determine the right of possession claimed by Neal to a tract of land, being a portion of the unsurveyed public agricultural lands of the United States in Mohave county. The answer contained a general denial, and set up the affirmative defense of right of possession in the defendant, Kayser, by virtue of the occupancy of the land by Kayser and his predecessors in interest for the period of ten years and more. Judgment was entered that the plaintiff take nobbing by his action, .and from this judgment, and the denial of a motion for a new trial, the plaintiff has appealed.

The evidence showed that at the time of the commencement of the action Kayser was in possession, claiming under a series of conveyances of the land and its improvements from his predecessors in interest and possession, covering a period of twenty years; that at the time of the attempted taking possession of the premises by the plaintiff, Neal, the possession and ownership of the land was claimed by the predecessor of Kayser in interest, a certain copartnership, by conveyance to it, and that such copartnership through its lessee, and through its agent, was exercising rights of ownership and possession, which facts were known to Neal; that at the precise time of Neal’s attempted taking possession no one was actually on the property, the agent being temporarily absent, and the house on the property did not show signs of recent habitation.

The appellant has assigned numerous errors, only a few of which are argued in his brief. All the errors assigned, and the argument of the appellant, are based upon these propositions: (1) That the conveyance of a possessory right to the unsurveyed public domain is equivalent to an abandonment thereof; (2) that a copartnership, not being qualified as such to enter the land under the laws of the United States, when surveyed, could not hold such land under claim of pos-sessory right, or transfer it to the defendant; (3) that possession could not be held for such partnership by a tenant or agent; (4) that since, at the time the plaintiff-attempted to take possession, there was no one actually on f]the premises, and since the premises had the appearance of being abandoned, they were in fact unoccupied and open to location. All these contentions of the appellant have already been decided by this court adversely to him in the case of Tidwell v. Chiricahua Cattle Co., 5 Ariz. 352, 53 Pac. 192. We see no reason to question the correctness of the conclusions there reached. We there held with respect to unsurveyed public land that, while only a qualified citizen can by location, or filing, initiate a right to a tract of the public land, from which there can, by compliance with the requirements of law, be perfected a complete and valid title in fee, the rights thus initiated by the qualified citizen become and are recognized as properly susceptible of sale and transfer, and that such sale and transfer may be made to persons not possessing the qualifications that would enable them to initiate such property rights and interests; that the incapacity of such persons to initiate such right, or subsequently to perfect such title, can be called in question only by the sovereign, and cannot be invoked to attack their right to be protected in the possession and enjoyment of their property, ¿efr to attack the validity of ther onveyance of the same to subsequent grantees. We, therefore, there held that a corporation might maintain its action of ejectment to a tract of unsurveyed public land to which it had deraigned title by a series of deeds from its predecessors in interest. We further held in the case cited that, the evidence showing the corporation to be in possession of the premises through its agent and tenant, and there being a change of tenants effected, an attempted taking possession of the premises by the defendant during the interval between the departure of the one tenant and the arrival of the other, when temporarily no one was in actual physical occupancy, was not the taking possession of unoccupied vacant public domain, and that the physical presence of the owner at all times upon the premises was not necessary to constitute legal possession. This common-sense doctrine we affirm, if affirmation is necessary. These principles which we then held, and now affirm are in accord with the following authorities: Thallman v. Thomas, 111 Fed. 277, 49 C. C. A. 317; Waring v. Loomis, 35. Wash. 85, 76 Pac. 510; Brown v. Killabrew, 21 Nev. 437, 33 Pac. 865.

The judgment of the district court is affirmed.

DOAN, CAMPBELL, and NAVE, JJ., concur.