Martin v. Bartmus

RICHARDS, J.,

pro

tem.

This is an appeal from a judgment in favor of the plaintiff in an action to quiet title to a tract of 320 acres of land in the Imperial Valley. The land was and still is government land, subject to entry and acquisition under the provisions of the act of Congress approved March 3, 1877, and amended March 3, 1891, commonly known as the Desert Land Act [8 Fed. Stats. Ann., 2d ed., pp. 692, etc.; H. S. Comp. Stats. 4674-4678]. By the terms of the act the entryman was not required to live upon the land but was required to make first, second, third, and fourth and final proof of certain expenditures toward the irrigation, reclamation and cultivation of such lands. The plaintiff in her complaint herein alleges that on the fourth day of March, 1913, she had filed a desert land entry upon said land and that on the fourth day of March, 1914, she had submitted in due and legal form her first annual proof as required by said act and thereafter had also in due time and form submitted her second and third annual proofs and had thereby gained the right to take possession of said land and to make her fourth and final proofs necessary to secure a patent to said land, but that the defendant has wrongfully and illegally entered upon said land and forcibly and wrongfully holds and occupies the same to the exclusion of the plaintiff, and by so doing prevents her from the acquisition of such possession of the same as is necessary to enable her to make her final proofs thereon and obtain her patent therefor. Wherefore, the

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plaintiff prays that the defendant be required to set forth the nature of his adverse claims in order that the same may be determined and her right and title to said land be quieted as against such claim and that she may be adjudged entitled to the possession of said land and have a writ of possession for the same. The defendant in his answer denies most of the material averments of the plaintiff’s complaint. He also, by way of a further and separate answer, alleges the existence of a certain judgment.in his favor in an action of unlawful detainer brought by the plaintiff against him and which he alleges constitutes a bar to the present action. He also pleads certain affirmative matter by way of counterclaim and also of cross-complaint. There were certain other parties named in the complaint besides the appellant Bartmus, but as to these they either defaulted or filed disclaimers and no relief was sought or awarded as to them. The facts as developed at the trial and as found by the trial court were briefly these: The plaintiff had, as she averred, and as the defendants admitted, filed her desert land entry on March 4, 1913, and a year later had submitted in due form her first annual proof as required by the Desert Land Act. On October 26, 1914, the defendants Peter and Dora Bartmus filed a contest in the United States land office at Los Angeles against the plaintiff’s said entry, to which contest the plaintiff herein filed an answer. Upon the hearing thereon the local land officers decided the same in the contestants’ favor, but upon appeal by plaintiff herein to the commissioner of the general land office and thence to the Secretary of the Interior said contest was finally decided in the said plaintiff’s favor, the Secretary of the Interior by his decision dismissing said contest and deciding that the said plaintiff had made a legal desert land entry and had duly made her first annual proofs thereon and had duly submitted her second and third annual proofs thereon and was entitled to have the same approved. Said decision of the Secretary of the Interior was rendered on March 12,1917, but prior thereto and on the twenty-fifth day of June, 1915, the defendants Bartmus had entered upon said land and continued thereafter to hold the same to the exclusion of the plaintiff therefrom. During the time of their said possession of said land the said defendants had made certain, improvements thereon, which, however, the court found to