Page v. Fowler

By the Court,

Rhodes, J. Replevin to recover the possession of a lot of hay, or the value thereof, described as six hundred tons, more or less, of great value, to wit, of the value of six thousand dollars. The hay replevied and delivered to the plaintiff amounted to one hundred and twenty-four tons, of the value of twelve hundred and fifty dollars, and the plaintiff had verdict and judgment for that amount.

The hay was produced during the year 1863, upon a tract of land forming a part of a larger tract, known as the Suscol Rancho, in Solano County. The plaintiff was in possession of the tract, containing about two thousand acres, inclosed with a substantial fence, from some time in 1860 to August or September, 1862, when the defendants entered upon the land, the fence being down in places, so as to leave gaps from two to three hundred feet in length, and they have since resided on and had possession of the land, each of them claiming the right to enter upon and hold a quarter section of land, under the pre-emption laws of the United States. The defendants claim the right of entry and of pre-emption under the general pre-emption laws of the United States and under the Act of Congress of May 30th, 1862. (12 U. S. Statutes at Large, 410, Sec. 7.)

The plaintiff claims, by virtue of his prior possession, and [608]under the Act of Congress of March 3d, 1863, granting the right of pre-emption to certain purchasers in the Suscol Rancho. It was admitted that the lands were part of the Suscol Rancho, the title to which had been rejected by the Supreme Court of the United States; that the rancho was public lands of the United States; that the plaintiff had á conveyance of about two thousand acres of land, including the lands upon which the hay was produced, made to him in 1851 by M. G. Vallejo, under, which the plaintiff entered; that the plaintiff had taken the necessary steps under the Act of Congress of March 3d, 1863, to present his claim to the Register and Receiver of the proper Land Office, to pre-empt the said two thousand acres, which claim was still pending, it being resisted by the defendants, who claimed the right of pre-emption, under the general laws of the United States.

The defendants offered to prove that each of them possessed the qualifications requisite to entitle him to pre-empt public lands in California, and had filed his declaratory statement of intention, to pre-empt the quarter section upon which he entered and had resided since October, 1862, and that they had procured their several tracts to be surveyed by the United States Surveyor-General; and the evidence was rejected by the Court. It was admitted that the claims of the defendants were then pending before the United States Register and Receiver. This decision of the Court is assigned as error, and it is claimed by the defendants that the evidence was admissible for two purposes : First—to show that their entry was lawful, and that they had the right to the possession of the land until they failed to comply with the provisions of the pre-emption laws; and, therefore, the crops raised on the land during the time they so held the possession were their property. And, second—To prove that they held adversely to the plaintiff, in good faith, under claim and color of title—and for that reason the plaintiff would not be entitled to recover the specific crops raised on the land during such adverse possession.