Jameson v. James

SLOSS, J.

The demurrer of the defendant John P. Cuddebacb, to plaintiffs’ amended complaint having been sustained, and plaintiffs having failed to further amend within the time allowed by the court, judgment of dismissal was entered. The plaintiffs appeal from the judgment.

The amended complaint alleges that on March 31, 1899, the plaintiffs made a mineral location of forty acres of land in Kern County. The land contained limestone in large quantities, and was' far more valuable for said limestone than for atiy other purpose. Immediately after said location the plaintiffs entered into possession of the claim, and did, in each of the years 1900 and 1901, perform labor thereon and expend money in the improvement thereof, to an amount in excess of the sum required by law. Plaintiffs entered upon said claim in the year 1902 for the purpose of performing the labor and making the improvements required by law, but the defendants forbade and prevented said plaintiffs from performing any labor or making any improvements upon the property.

Prior to May 20, 1901, the defendant Mary J. James had made an application to the United States to enter a quarter section of land including the plaintiffs’ location, and on April 13, 1900, she made application to the register and receiver of the United States land-office at Independence to make final proof and payment for said land and to procure a patent therefor. Notice of the applicant’s intention to make final proof and of the time when proof would be filed in support

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of her homestead entry was published by the register in a paper published at Kern City, more than fifty miles distant from the land, there being at the time a newspaper published at Mojave, Kem County, within seventeen miles of the place where the land was situated. Plaintiffs had no notice of the application of Mary J. James to enter the land or to make final proof until after hearing had been had and patent issued. It is alleged that said Mary J. James appeared and made proof under her homestead entry and that patent was issued to her by the United States of date October 23, 1901. At the time that said proof was made Mary J. James knew that the land contained limestone in large quantities, that said land was more valuable for the limestone than for any other purpose, that said land was claimed by plaintiffs under their location, and that limestone had been developed thereon under said claim. Notwithstanding these facts said Mary J. James, through herself and her witnesses, misrepresented to the officers of the land department the true character and condition of the land and fraudulently concealed the fact that said land was valuable for limestone and the fact that a' mining location had been made on said land. These misrepresentations and concealments were fraudulently made for the purpose of obtaining the title to said land and a patent therefor as agricultural land, under the homestead laws of the United States. Plaintiffs allege that when Mary J. James made her original application and entry many years before the final proof, she was not residing on the premises, nor did she ever reside thereon, erect any improvements thereon, except a cabin of the value of twenty-five dollars, or cultivate or improve the land. At the time of making her final proof, however, she testified and represented to the register and receiver that she had resided upon the land and cultivated and improved the same as by the homestead laws required, and the officers of the land department believed and acted upon her testimony and representations, and the patent was issued upon the faith of said representations. It is further averred that the homestead entry was not made by Mary J. James for her own benefit, but for the benefit of John W. Payne, to whom she conveyed on the day following the making of final proof. The complaint sets forth various conveyances by Payne and by his grantees (all of whom are named as defend