Thompson v. Basler

SLOSS, J.

This plaintiff, claiming possession of and title to one hundred and sixty acres of land as a homestead entry-man, under the land laws of the United States, commenced this action of ejectment against the defendant to recover the possession of a portion of the premises, and one hundred dollars damages. Judgment went for the plaintiff according to the prayer of his complaint, and the defendant now appeals from an order denying his motion for a new trial.

It appears that on April 16, 1900, there was issued to the plaintiff the receipt of the receiver of the land office for the entry of the one hundred and sixty acres, under section 2290 of the Revised Statutes of the United States [U. S. Comp. Stats. 1901, p. 1389], and that shortly thereafter he took possession of the land described in his receipt as his homestead entry thereunder. In the autumn of 1902 the defendant came upon the land, took possession of about twenty acres, began to run a tunnel therein for mining purposes, and posted and recorded notices of location for the purpose of acquiring tunnel rights under the laws of the United States. (Rev. Stats. U. S., sec. 2323 [U. S. Comp. Stats. 1901, p. 1426.]) The claim of the defendant, as stated in his brief, is: “That the plaintiff did not comply with the homestead laws of the United States after making his application and obtaining the receiver’s receipt.” In support of this claim, he introduced testimony tending to show that subsequent to the entry the plaintiff had

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not resided on the land, and that he had failed to make the cultivation of the land required to obtain a patent thereto under section 2291 of the Revised Statutes of the United States [U. S. Comp. Stats. 1901, p. 1390].

Although title does not finally pass from the United States until the issuance of a patent, it is well settled that the receiver’s receipt issued to a homestead entryman in possession and claiming land under section 2290 of the Revised Statutes of the United States, constitutes ample title to enable him to maintain or defend a suit concerning the land. (Code Civ. Proc., sec. 1925;

Goodwin

v.

McCabe,