Staininger v. Andrews , 4 Nev. 59 ( 1868 )

By the Court,

Lewis, J.

There seem to be but two methods in this State of acquiring title sufficient to maintain ejectment to public land not surveyed or brought into the market by the General Government, and these are : Pirst — By a compliance with requirements of “ An Act prescribing the mode of maintaining and defending possessory actions for public lands in this State,” Laws of 1864-5, page 343 ; and Second — By actual possession or occupation of such land.

The plaintiff in this action does not pretend to have complied with the requirements of the law above referred to, and hence his title,- if he has any, rests entirely upon his possession or appropriation of the land in controversy.

Whether he had acquired such possession of the land at the time the defendant intruded upon it as to entitle him to recover it in this ■ action, is the only question now demanding the consideration of the Court. The person first locating a tract of public land should have a reasonable time after the location to inclose it, or to make such improvement as may be necessary to its enjoyment; and during that time he must be protected precisely the same as if he had perfected his possession by inclosure or otherwise. But if ousted after the lapse of such reasonable time he can only recover by showing an actual, notorious prior possession. Such has been the rule almost invariably followed by the Courts, whenever the question has been directly presented. So it was held in the case of Plume v. Seward, (4 Cal. 94) and in Coryell v. Cain, (16 Cal. 567). In this last ease the Supreme Court of California uses the following language upon the question:

“ And with public lands, which are not mineral lands, the title as between citizens of the State, where neither connects himself with the Government, is considered as vested in the first possessor, and to proceed from him. This possession must be actual and not constructive, and the right it confers must be distinguished from the right given by the Possessory Act of the State. That Act, which applies only to lands occupied for cultivation or grazing, authorizes actions for interference with or injuries to the possession of a claim not exceeding one hundred and sixty acres in extent, where certain steps are taken for the assertion of the claim, and to indicate its boundaries. Parties relying upon the right conferred by this Act must show a compliance with its provisions. They can thus maintain their action without showing an actual inclosure, or actual possession of the whole claim. But when reliance is placed, not upon the Act, but upon prior possession of the plaintiff, or of parties through whom he claims, such possession must be shown to have been actual in him or them.”

In delivering the opinion of the entire Court in the case of Lawrence v. Fulton, (19 Cal. 690) Justice Norton said:

“ The Court charged the jury that to enable the plaintiff to ■recover they must be -satisfied that the person under whom he claimed had had an actual Iona fide occupation, and had subjected ■the land to his will and control for’ some space of time; that mere .assertion of title, coupled with casual acts of ownership, is not sufficient.. This charge is objected to on the ground that the word occupation is more extensive than the word ■ possession, and conveyed to the jury the idea that the party must himself have lived upon the premises. The -word occupant may be so used in connection with other expressions, or under peculiar facts of a ease as to signify a residence. But ordinarily the expression ‘ occupation,’ ‘ possessio pedis,’ ‘ subjection to the will and control,’ are employed ■as synonymous terms, and Signifying actual possession.”

■ The Court held the charge given by the Court below as correct, and affirmed the judgment. (See also Sutton v. Schumaker et al., 21 Cal. 453). The doctrine. declared in these cases was subsequently approved in Polack v. McGrath, (32 Cal. 15). The Kentucky Court of Appeals say in Myers et al. v. McMillan’s Heirs, (4 Dana, 483) that when prior possession alone, short of twenty years, is relied on in ejectment, it must be shown to have been an actual possession, or such as would maintain trespass. So this Court held in the case of Sankey v. Noyes, (1 Nevada, 68). That the plaintiff must show an actual prior possession after he has had a reasonable time to secure it, to enable him to recover in ejectment where possession alone is relied on,- is a rule clearly declared by the authorities above referred to; but what is to be understood as an actual possession, or -what acts will constitute it, is the question now left to be determined. Actual possession of land is the purpose to enjoy, united with or manifested by such visible acts, improvements or inclosures as will give to the locator the absolute and exclusive enjoyment of it. But it is almost impossible to give a succinct, and at the same time a comprehensive definition of actual possession. It will be better explained and understood by a reference to decided cases, and the language generally employed by the Court with respect to it. In the case of Sander & Myers v. McMillan’s Heirs, (4 Dana, 456) Judge Marshall, in delivering the opinion of the Court;, makes use of this language : “ From this principle it follows that the prior possessor must have had such a possession at the time of the entry of the defendant, or those under whom he claims, as would enable him to maintain an-action of trespass for the entry.”

“ By actual possession,” - says Chief Justice Field, in Coryell v. Cain, (16 Cal. 567) is meant- a subjection to the will and dominion of the claimant, and is usually evidenced by occupation, by a substantial inclosure, by cultivation, or by appropriate use, according to the particular locality and quality of the property.”

In the case of Murphy v. Wallingford, (6 Cal. 648) it was shown that in the year 1850 the plaintiff entered upon a tract of land, caused it-to be surveyed and the boundaries marked, built a house upon it, in which he resided, and- inclosed and cultivated a portion of the tract. The defendant in 1852 entered upon the land within the boundaries of the survey, but not within the inclosure. When these facts were proven the defendant moved for a nonsuit, which was refused, but the Supreme Court held that the nonsuit should have been granted. Mr. Justice Terry, in deliver-, ing the opinion of the Court, says that “ possession is presumptive evidence of title, but it must be an actual Iona fide occupation — a pedis possessio — a subjection to the will and control, as contradistin-guished from the mere assertion of title and the exercise of casual-acts of ownership. A -mere entry, without color of title, accompanied by a survey and marking of boundaries, is not sufficient.” So it was also held in Garrison v. Sampson, (15 Cal. 93). In Hutton v. Schumaker, (21 Cal. 454) it is said by the Chief Justice “ mere inclosure of a lot with a fence of this character, (a brush fence) without any other steps being taken to subject the property to any use, is not a sufficient evidence of ownership, or right of possession in the plaintiff, to'sustain ejectment, against one subsequently entering upon the premises.” (See also Polack v. McGrath, 32 Cal. 15.)

Upon such possession- alone can a plaintiff, who relies solely upon prior possession, recover in ejectment, after he has had a reasonable time, between the location and ouster to secure such possession. But right and justice dictate that a person locating upon the public land should be protected whilst he is making the improvements which, when completed, will give him the actual possession, and that he should have a reasonable time within which to do the necessary work.

It may often take weeks or months of. diligent work to reduce a tract of public land to actual possession, and whilst diligently pursuing the purpose of reducing it to his possession the locator may at times necessarily be compelled to leave it unoccupied.

During such period, surely, the law should protect him, although if ejected he would not be able to show that he had secured an actual possession. That he had not had a reasonable time after his first location within which to secure such possession, and that he had prosecuted the necessary improvement with due diligence, would be a sufficient answer to the failure to show an actual possession. In such case, if the plaintiff shows that he first entered upon the land, marked the boundaries, and diligently made preparations to do those acts necessary to constitute an actual possession, he will be entitled to recover. The material questions, therefore, to be determined in all cases of this kind are: First — Did the plaintiff locate the land before the defendant ? and Second — After locating it did he proceed with reasonable diligence to subject it. to his will and control by the prosecution of such work, or the making of such improvements as might be necessary to the complete enjoyment of the land. If so, he should recover. But if, on the other hand, it be shown that he made the first location, but did not diligently follow it up with the necessary improvements or inclosures, or rather if it be found that a sufficient time had elapsed between the time of such location and the entry of the defendant to have enabled him, the plaintiff, to reduce the premises to actual possession, in such case he can only recover by showing such actual possession. Hence, if it were shown in this case that the plaintiff made the first location of the land in question, and that he had with reasonable diligence followed up such location with the necessary improvements, or with preparations to make such improvements, he should recover. That is a question of fact which could only be decided by weighing and considering all the evidence, and should therefore have been submitted to the jury.

The nonsuit should not have been granted.

Judgment reversed and a new trial ordered.