Kelsey v. Lake Childs Co. ( 1927 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Rights which have been acquired under government survey cannot be affected or interfered with by a subsequent survey; but until some rights to a specific tract of land have been acquired under a survey, a corrected survey can be made and substituted therefor. 32 Cyc. 805; In re Scott (Cal.),156 P. 872; Cragin v. Powell, 128 U.S. 691, 32 L.Ed. 566; Hickman v. Jones, 183 N.W. 980; U.S. v. State Investment Co.,264 U.S. 206, 68 L.Ed. 639.

Original actual surveys of public lands by the United States government, on the faith of which property rights have been acquired, control over surveys subsequently made by the government which affect such rights. 22 R. C. L. 282, and cases cited; Pittsmont Copper Co. v. Vanina (Mont.), 227 P. 46; Groover v. Coffee, 19 Fla. 61; Coffee v. Groover, 20 Fla. 64; Lidden v. Hodnett, 22 Fla. 442.

The survey actually made by the United States government and according to which it sold the land, controls as between parties to an action of ejectment covering such land. Miller v. White, 23 Fla. 301, 2 So. 614.

After public lands have been entered at the land office and a certificate of entry obtained, they are private property, the government agreeing to make a conveyance as soon as it can, and in the meantime holding the naked legal fee in trust for the purchaser, who has the equitable title. Wisconsin C. R. Co. v. Price Country, 133 U.S. 496, 33 L.Ed. 687; Kansas P. Ry. Co. v. Prescott, 83 U.S. (16 Wall.) 603; 21 L.Ed. 373; Kansas, etc., Ry. Co. v. Dunmeyer, 113 U.S. 629, 28 L.Ed. 1122; Brandon v. Ard., 211 U.S. 11, 53 L.Ed. 68; Hagan v. Ellis, 39 Fla. 463, 22 So. 726; Doran v. Kennedy, 237 U.S. 362, 59 L.Ed. 996; Cornelius v. Kessel, 128 U.S. 456, 32 L.Ed. 482; Payne v. New Mexico, 255 U.S. 367, 65 L.Ed. 680.

"From the making of his entry the homesteader has the right of possession as against trespassers and all others except the United States; he has also an inchoate title, subject to be defeated only by failure on his part to comply with the requirements of the homestead law as to settlement and cultivation. So long as he complies with these laws in the course of earning a complete right to the lands as against the government he has a substantial inceptive title sufficient as against third parties to support suits in equity or at law. * * *

"The homesteader has a preferential right to the land, and in order to give effect to this according to the spirit of the laws it must be and is held that when he has fulfilled the conditions imposed upon him, and receives a patent vesting in him the complete legal title this title relates back to the date of the initiatory act, so as to cut off intervening claimants." Knapp v. Alexander Edgar Lumber Co., 237 U.S. 162, 59 L.Ed. 894; U.S. v. Buchanan, 232 U.S. 72, 58 L.Ed. 511; Brandon v. Ard, supra; Osborn v. Froyseth, 216 U.S. 571, 54 L.Ed. 619; Wadkins v. Producers' Oil Co. (La.), 57 So. 937; Burlington, etc., R. R. Co. v. Johnson, 38 Kan. 142, 16 P. 125; Poole v. Baker (Wyo.), 154 P. 328; U.S. v. Turner, 54 Fed. 228; 5 U.S. Compiled Statutes, pp. 5339, et seq.; Whitney v. Taylor, 158 U.S. 85; 39 L.Ed. 906.

The receipt of the land office for entry fee is prima facie evidence of a homestead entry. Whittaker v. Pendola, 78 Cal. 296, 20 P. 680.

The entry operates as an appropriation of the land covered by it and segregates the tract entered from the public domain, Hastings and Dakota R. Co. v. Whitney, 132 U.S. 357, 33 L.Ed. 363; Sturr v. Beck, 133 U.S. 541, 33 L.Ed. 761; U.S. v. Bagnell Timber Co., 178 Fed. 795. See also the case cited in McDaniel v. McElvey, 108 So. 820, text 830, beginning with the case of Witherspoon v. Duncan, 4 Wall. (U.S.) 210, 18 L.Ed. 339.

The qualified entryman who enters public lands with the intent to acquire title has a vested right of which he can only be deprived by failure to comply with the law. Daniels v. Wagner, 194 Fed. 973, 205 Fed. 235, 125 C. C. A. 93.

Although title does not pass from the United States to a homestead entryman until the issuance of a patent, the receiver's receipt issued to an entryman in possession and claiming land under Rev. Stat. U.S. 2990, constitutes sufficient title to enable him to maintain or defend a suit concerning the land.

This was an ejectment suit. To the declaration, the defendant, plaintiff in error here, interposed two pleas, the plea of not guilty, and a plea disclaiming possession of the land sued for. The plaintiff claimed title under a deed from Geo. W. Westervelt, and government patent to Westervelt dated August 24, 1915, and introduced evidence tending to show that, under the field notes of a resurvey (approved by the Department of the Interior on July 31, 1919, and authorized or confirmed by an Act of Congress, received by the President October 20, 1919, and which became a law without his approval), the land involved in the suit and covered by said patent was in the possession of the defendant. Plaintiff also offered in evidence a certified copy from the Department of the Interior of a petition signed by the defendant and many others requesting a resurvey and relocation or retracement of township, range and section lines in several townships, one of which embraced the land in question.

The Act of Congress above referred to authorized the Secretary of the Interior to equitably adjust disputes and claims by entrymen, patentees, etc., of the United States against the United States and between each other, arising from faulty surveys in said townships, and recites that "the said surveys having been shown to have been faulty by the resurvey of certain lands in said townships." The Act further authorized the Secretary of the Interior to make such surveys or resurveys in said townships as may in his judgment be necessary in order to carry out the provisions of this Act.

It will be noted that the resurvey under which plaintiff claimed was made before the above Act was adopted; but even if this Act should be construed as a confirmation of such resurvey, which is not at all clear, it could not impair property rights which had vested under the prior government survey or surveys, pursuant to which the patent was issued to Westervelt in 1915, or any homestead entries, such as the defendant's, made prior to such resurvey, under the principles above set forth.

A consideration of the propositions established by the authorities referred to in the beginning of this opinion shows that the Court below erred in refusing to permit the defendant to introduce evidence tending to show that under original government surveys of 1850 and 1870, the patent necessarily based upon these surveys, and the deed to plaintiff by the patentee, did not embrace the lands of which the defendant was in possession, and which were located in an adjoining quarter-section. It follows also that the Court below erred in refusing to permit the defendant to introduce in evidence his receipt for homestead entry fees, showing his entry in 1913, of a quarter-section adjoining that embraced in plaintiff's deed and the Westervelt patent, and that the land he was in possession of was according to prior government surveys within the quarter-section covered by his entry; and in refusing to admit his testimony showing that he entered into possession thereof under such entry and built a home and cleared and cultivated, improved and fenced, a portion of the quarter-section entered and had resided thereon; also, in refusing to permit him to show that he had proved up his entry and secured a final certificate in 1920. As the Court had refused to permit the defendant to introduce the government field notes of the original government survey and to introduce evidence tending to show that according to such survey the plaintiff's patent and deed did not embrace the land in question, but was embraced in his homestead entry, the defendant endeavored to make out a defense by adverse possession of such lands, whereupon the Court required the defendant to elect between his pleas, and the defendant elected to proceed under the plea of the general issue. As the Court's requirement was based upon the erroneous holding by the Court that the resurvey of 1919 was conclusive upon the defendant, and that he could not show any right attaching under prior surveys in force at the time he made his homestead entry, it follows that such requirement of the defendant to elect between his pleas was also erroneous.

If the signing by Kelsey of the petition for resurvey could be construed to constitute an estoppel against him to insist upon rights vested under the prior government surveys, which is extremely doubtful in view of the language of such petition, the question as to whether Kelsey was in any manner bound by such petition became a question of fact in view of his testimony that such petition had been altered after he signed it, without his knowledge or consent.

There was an instructed verdict for the plaintiff, and judgment entered thereon in its favor, to which defendant took writ of error. For the reasons above pointed out, such judgment must be reversed and the cause remanded to the Court below for another trial.

Reversed.

WHITFIELD, TERRELL, STRUM AND BUFORD, J. J., concur.

ELLIS, C. J., dissents.