Elliott v. Robbins

[578]

CONREY, P. J.

This is an action to recover possession of public land the legal title to which is vested in the United States of America. The defendant appeals from the judgment, which was entered pursuant to an order granting the plaintiff’s motion for judgment on the pleadings.

The plaintiff relies upon a certificate of entry issued by the register and receiver of the United States land office at Los Angeles, California, upon the application of plaintiff to make desert land entry for the land described in the complaint. The answer admitted the issuance of the certificate of entry, but alleged adverse possession by the defendant of the land at date of the inception of the claim upon which plaintiff’s certificate of entry was founded, and at all times since under claim of right by the defendant to make homestead entry for said land, and alleged compliance by defendant with all of the requirements of the homestead laws of the United States. Counsel for respondent admit that if this had been the entire answer, the defense might have been sufficient. While a certificate of purchase and of location of public lands is primary evidence that the holder or assignee of such certificate is the owner of the land described therein, this evidence may be overcome by proof that “at the time of the location, or time of filing a pre-emption claim on which the certificate may have been issued, the land was in the adverse possession of the adverse party, or those under whom he claims.” (Code Civ. Proc., sec. 1925;

Haven

v.

Haws,

63 Cal. 452.) It follows that when the defendant stated in his answer that he was in adverse possession of the land at the times stated, such answer constituted a defense to the plaintiff’s alleged cause of action.

But the answer alleged further facts as follows: That at a time prior to the commencement of this action, the defendant had offered and attempted to make a homestead application upon said land; that the plaintiff also filed an application to enter said land pursuant to an alleged claim of preferenced right of entry thereon as successful contestant in certain contests against the desert land entries of certain other persons, and that in making his application, plaintiff alleged that the land described in his said application was formerly embraced within said successfully contested entries; that at a hearing had before the register and receiver of the United States district land office at Los Angeles to determine the respective