Yakima County v. Tullar

Mr. Justice Allyn

delivered the opinion of the court.

Appellee, in 1885, entered a timber culture claim on the northwest quarter of section 30, township 9 north, range 26 east, in Yakima county, and thereafter cultivated said land under the timber culture law. There was upon said claim three valuable springs. In the same year, appellee entered 160 acres adjoining as a homestead, and lives thereon. The water for appellee’s dwelling, and other purposes, is derived from the springs above and upon said timber culture entry. The following year, the county commissioners of said county ordered a road located directly through said timber culture claim, and the same was so located and opened as to place the said three springs in the middle of the road.

Upon the report of the appraisers appointed by the commissioners, appellee was allowed $100 as damages, from which he appealed to the district court. In the district court the question was submitted to a jury, and appellant herein moved the court to find a verdict for the defendant, which was refused; and instead the court instructed the jury to “consider the value of plaintiff’s (appellee’s) timber culture as a timber culture, and not as land to which he had title, and determine the amount of damage to such timber culture.” The jury assessed such damage at $150. There was ample evidence to sustain the amount of the verdict. The question at present is, can the appellee recover anything as damages to this timber culture to which he has not as yet acquired title ?

That appellee had only the right of possession, with a right of later acquiring title; that he could not have dedicated this piece of land to the public for a road; and that the right of way over public lands is granted to the public, may all be conceded, and yet it by no means follows that a bona fide settler or entryman, because the legal title has not yet vested in him, can thus be deprived of valuable rights, as would be the case here. The right of way over “public lands ” that is granted to the public for roads, etc., doubtless contemplates strictly public lands, such as are open to entry and settlement, and not those in which the rights of the public have passed, and which have become subject to some individual right, of settler, or the like, as in this case.

Under the laws of the United States appellee was in possession, and such possession was good as against the world so long as he complied with the laws. From all that appears, he had possession in this way; and to say that valuable features of the land, as springs, and the land itself, can thus be taken without compensation to the honest settler, for the use of the public, is to say a self-evident wrong; and such theory in this case would ignore the maxim, that “for every wrong there is a remedy.” We do not believe the sections of the Code , relied on by appellant contemplate such a possibility, or carry this intent in a case like this. The public have chosen to exercise their rights of locating this road; they have the benefit, let them pay the damage, which is fully proved.

Judgment of the court below is affirmed.

Jones, C. J., and Langford, J., concurred. .