Mount Carmel Fruit Co. v. Webster

[184]

VAN DYKE, J.

The appeal is by Joseph Webster and M. M. Webster, his wife, from a judgment in favor of the plaintiff against said appellants.

The action is to quiet title to a one-fourth interest in the water flowing in a certain stream in the Yucaipe (or Potato) Cañón, in San Bernardino County. The court found that on April 23, 1890, the defendant and appellant Joseph Webster conveyed to one A. W. Eames, for the sum of five hundred dollars, a one-twelfth interest in the water flowing in said Yucaipe Cañón, and the right to convey said water so sold by ,a ditch or otherwise across section 28, township 1 south, range 1 west, S. B. B. and M., and that thereafter, on August 12, 1892, said Eames conveyed said water-right and right of way for the same to the plaintiff; and also found that, on August 15, 1892, defendant Joseph Webster and M. M. Webster, his wife, conveyed to the plaintiff, for the sum of two thousand dollars, an undivided one sixth of the water flowing in said stream, being a part of the water located by said Joseph Webster in 1875, and' a right of way to pipe, flume, or ditch across the lands of the grantors. On October 19, 1896, Webster entered fractional section 28 under the Homestead Law.

It appears by defendants’ bill of exceptions, brought up on appeal, that defendants objected to the introduction of said deeds in evidence on the trial, on the ground that said conveyances were against public policy and void, as being against the policy of the homestead laws of the United States, and that the patent issued to Joseph Webster upon his said homestead entry, should not inure to his grantee’s benefit, nor feed the title mentioned in said prior deeds made to the plaintiff, or to said Eames; which objections were overruled by the court, and defendants excepted thereto.

The only point made by the appellants is in support of the objection to the introduction of the deeds in question, and the only authorities cited in support of the appellants’ contention are sections 2290 and 2291 of the Revised Statutes of the United States, and

Anderson

v.

Carkins,

135 U. S. 483. In section 2290 of the Revised Statutes of the United States it is provided that the party making application for entry of public lands under the United States Homestead Act shall make