Rourke v. McNally

Temple, C.

This appeal is by plaintiff upon the judgment-roll, and appellant contends that judgment should have been fir plaintiff upon the findings.

Suit was brought to recover the possession of land, and it was tried without a jury. The court found that plaintiff on tlie fifteenth day of August, 1891, was, and long prior thereto had been, in the actual possession of the demanded premises; that plaintiff entered in the occupation of the same March 20,

1890, and enclosed the land with a wire and brush fence, which with natural harriers excluded and enclosed stock; that plaintiff did not reside upon the land, but had continued an exclusive possession until ousted by the defendant Julia; that the land was a part of the public domain of the United States, and was open to settlement pursuant to the forfeiture act of Congress, approved September 29, 1890; that on August 16,

1891, while plaintiff was so in possession, defendant, Julia McNally, entered upon the land and made a settlement thereon by building a house, then and now intending to enter the same and the enjoining land, not exceeding one hundred and sixty acres, as a homestead under the laws of the United States, and is now residing thereon. She made her entry through an opening in plaintiff’s fence, not made by her, but by some unknown person. She broke no fence, and her entry was without force or violence. Her entry, however, was without the knowledge or consent of jdaintiff and against his will, and she has ever since kept him out of possession.

By what course of reasoning the court reached the conclusion that plaintiff" could not recover ou these facts, we are not informed, as respondents have filed no brief. The defendant Julia did not connect herself with the government title through the homestead law or otherwise. Since she entered upon the actual possession of another, it is of no moment that her entry was peaceable, because made in the absence of plaintiff; nor is it of consequence that she intended to take up the land as a homestead. This did not warrant her entry upon the actual possession of another; but she has not even attempted to enter the land as a homestead, and she has acquired no rights under any act of Congress. Until she has acquired some such right or connected herself in some lawful mode with the true title, she cannot resist the presumption of title in the plaintiff, which arises from the fact of his prior possession. The laws of the United States do not authorize an eutry upon the actual possession of another for the purpose of making a settlement, though made by one qualified to purchase from the government or to acquire a homestead, although such entry is made with the intent to acquire the title in some lawful mode. (Atherton v. Fowler, 96 U. S. 513; Dunwood v. Martin, 120 U. S. 369; Quimby v. Conlon, 104 U. S. 381; McBrown v. Morris, 59 Cal. 68; Goodwin v. MoCabe, 75 Cal. 584; Bullock v. Rouse, 81 Cal. 590; Peterson v. Kinkead, 92 Cal. 372.)

I think the judgment should be reversed and the court below directed to enter judgment for the plaintiff on the findings.

Searls, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion, the judgment is reversed and the court below is directed to enter judgment for the plaintiff on the findings.

McFarland, J., Fitzgerald, J.

De Haven, J., concurred in the judgment.