Stark v. Barnes

Mr. Justice Wells delivered,the opinion of the Court.

Mr. J. Heydeneeldt concurred. The right of the respondent, Stark, to recover in the Court below, depends upon the construction to be given to the “Act Prescribing the Mode of Maintaining and Defending Possessory Actions on Lands belonging to the United States,” and the question arises, had he acquired such a possessory right to the land in controversy, at the time of the committing of the injury complained of, as would entitle him, under the provisions of that Act, to maintain his suit? The provisions of the statute, conferring a possessory right to lands belonging to the United States, not exceeding one hundred and sixty acres, required, 1st, that the land shall be unoccupied; 2d, that the claim to such land must be marked out, so that the boundaries thereof may be readily traced, and the extent of such claim easily known; 3d, that the person wishing to entitle himself to the benefit of this statute, must have occupied and actually settled upon the same, and made improvements thereon to the value of one hundred dollars; 4th, he shall not neglect to occupy or cultivate such claim for the period of three months.

It appears from the testimony, that one Perry Morrison had taken up a claim adjoining this land, and which he supposed [413]* included this part; but when he had marked off his [413] claim of one hundred and sixty acres, he found the portion in dispute in this case, was left out. This portion remained unoccupied, until Stark entered upon it, in October, 1850. The fact that several persons in the neighborhood were in the habit of cutting firewood from it does not alter the case — the land was unoccupied, within the meaning of the statute, at the time of Stark’s entry. Stark erected a house upon the land, which was soon afterwards torn down, but immediately rebuilt; and he continued to occupy the land and to reside upon it, from the time of his first entrance until the time of trial, and proceeded, step by step, to perfect his claim, which, in the month of February following, he marked out, so that the boundaries thereof might readily be traced, and its extent easily known; but before completing the series of acts necessary to perfect his claim, he was disturbed in his possession by one Cincinnatus Morrison, who entered upon the land, commenced building a house thereon, and having completed his house, conveyed it to Barnes the appellant, who, as his successor, resided on it, and continued so to do, until the trial of the cause. It was Morrison, also, who tore down the house of Stark. These acts of Morrison, although commenced in the afternoon of the same day that Stark entered upon the land, were but tresspasses upon the possessory right of Stark, and could. in no way bestow any right of possession upon the trespasser, He could derive no benefit from his own wrongful acts, nor could any benefit or privilege be bestowed upon Barnes by a conveyance from him, Barnes taking under him, was but his successor in a trespass, and, in continuing therein, became himself a trespasser. It is contended by the appellant that -Stark had no possession within the meaning of the statute to entitle him to bring his action, and this objection, we understand, is based upon the ground that he had not perfected his claim by the performance of such acts as are required by law. But we consider that this is a case to which the doctrine of relation applies. That doctrine is correctly stated by the Court below, that “where a number of acts are to be performed, in virtue