Nickals v. Winn , 17 Nev. 188 ( 1882 )

By the Court,

Belknap, J.:

. The plaintiff was in the possession of a large tract of unpatented land, which he had inclosed and was cultivating. He failed to avail himself of the benefits conferred by the preemption laws of the United States upon the first settler upon public lands, and, after the expiration of the period within which his prior right of entry and purchase could have been exercised, the defendant entered upon one hundred and sixty acres of the land and settled thereon. At the time of his entry defendant was entitled to purchase unappropriated public lands, as provided by the homestead laws of the government. He followed the mode of procedure prescribed by these laws in making his application to purchase. A contest between plaintiff* and himself, touching the validity of his entry of the land in the land office, was determined by the officers of the land department in his favor, and after such determination he cut from the land a quantity of hay, which is the subject of the controversy in this action.

The question presented is, whether, under these facts, the defendant acquired a right to pre-empt the portion of the land settled upon by him.

A similar question was presented to the supreme court of the United States, in the case of Frisbie v. Whitney, 9 Wall. 193. In that case the court preferred to place its decision upon other grounds, but confessed a serious difficulty in regard to the complainant’s right to make pre-emption by a forcible intrusion upon land cultivated, inclosed and peaceably occupied by another man.

In Atherton v. Fowler, 96 U. S. 513, the court, to use its own expression, was met with the question directly in its way, and determined that an intrusion, such as was made by the defendant here, could not initiate a right of pre-emption. That was an action of replevin for hay cut upon the land. It was commenced by Page, who died during the progress of the litigation, and was thereafter represented by Atherton, his executor. The hay was cut by Fowler upon a portion of a larger tract of land then being cultivated by Page and in his actual possession. Fowler claimed to have made a valid preemption settlement upon the land. His entry was without the consent of Page.

Under these facts the court proceeded to consider whether the land was subject to the pre-emption entry of the defendant, and in the discussion employed the following language:

“Undoubtedly there have been cases, and may be cases again, where two persons making settlement on different parts of the same quarter section of land may present conflicting claims to the right of pre-emption of the whole qu'arter section, and neither of them be a trespasser upon the possession of the other, for the reason that the quarter section is open, unenclosed, and neither party interferes with the actual possession- of the other. In such cases the settlement of the later of the two may be bona fide, for many reasons. The first party may not have the qualifications necessary to a pre-emptor, or he may have pre-empted other land, or he may have permitted the time for filing his declaration to elapse, in which case the statute expressly declares that another person may become pre-emptor, or it may not be known that the settlements are on the same quarter. (Johnson v. Towsley, 13 Wall. 72; Sec. 15, Act of Sept. 4, 1841.)

“But all of these cases suppose that the parties began their possession and made their settlements and built their houses on lands not in the actual possession of another. It is not to be presumed that congress intended, in the remote regions where these settlements are made, to invite forcible invasion of the premises of another, in order to confer the gratuitous right of preference of purchase on the invaders. In the parts of the country where these pre-emptions are usually made, the protection of the law to rights of person and property is generally but imperfect under the best of circumstances. It cannot, therefore, be believed, without the strongest evidence, that congress has extended a standing invitation to the strong, the daring and the unscrupulous to dispossess, by force, the weak and the timid from actual improvements on the public land, in order that the intentional trespassers may secure by these means the preferred right to buy the land of the government when it comes into market. ” (p. 516.)

That case differed from the present one in this: There the plaintiff had not forfeited his prior right of pre-emption; here he has, and from this difference in the facts the cases are sought to be distinguished.

The portion of the opinion above quoted shows the court considered that, in order to create a right of pre-emption, there must be a settlement upon unsettled land — a condition thát cannot exist when the laud is in the occupation of another, regardless of the question whether that other is a person entitled to make pre-emption. A subsequent portion of the opinion announces this view very forcibly. After stating that the plaintiff' and others had settled upon the land in person,, inhabited and improved it and erected dwellings upon it, the opinion proceeds: “Unless some reason is shown, not ,found in this record, these were the persons entitled to make preemption, and no one else. But suppose they were not. Does the policy of the pre-emption law authorize a stranger to thrust these men out of their houses, seize their improvements and settle exactly where they were settled, and by these acts acquire the initiatory right of pre-emption 1 The generosity by which congress - gave the settler the right of pre-emption was not intended to give him the benefit of another man’s labor, and authorize him to turn that man and his family out of their home. It did not propose to give its bounty to settlements obtained by violence at the expense of others. The right to make a settlement was to be exercised on unsettled land; to make improvements on unimproved land. To erect a dwelling house did not mean to seize another man’s dwelling. It had reference to vacant land; to unimproved land, and it would have shocked the moral sense of the men who passed these laws if they had supposed that they extended an invitation to the pioneer population to acquire inchoate rights to the public lands by trespass, by violence, by robbery, by acts leading to homicides and other crimes of less moral turpitude.” (p. 519.)

These views were followed by the same court in Hosmer v. Wallace, 97 U. S. 575, and in Trenouth v. San Francisco, 100 U. S. 251, and by the supreme court of California in Hosmer v. Duggan, 6 Pacific Coast Law Journal, 615; Davis v. Scott, Id. 699, and in McBrown v. Morris, 8 Id. 708.

Upon the authority of these cases we regard the law as settled adversely to the pre-emption claim of the defendant.

The judgment in his favor must be reversed, and the district court directed to enter a judgment in favor of the plaintiff', with costs; and it is so ordered.