Davis v. Scott

California Supreme Court Jul 1, 1880 No. No. 6,597Published

Before: Morrison

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Holding. The court held that a defendant cannot establish a right of pre-emption on land that is already in the actual possession, occupation, and improvement of another party. Consequently, an intruder who enters upon such land by trespass cannot defeat the possessor's right to ejectment.

Issues

Whether a party can acquire a pre-emption claim to public land that is already in the actual possession and occupation of another.
Whether the defendant's entry upon land occupied and improved by the plaintiff constitutes a valid basis for a pre-emption claim.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The land was in the actual possession and occupation of the plaintiff at the time the defendant attempted to locate a pre-emption claim thereon, and it was not, therefore, subject to pre-emption.”

“no right of pre-emption can be established by a settlement and improvement on a tract of public land, when the claimant forcibly intruded upon the possession of one who had already settled upon, improved, and enclosed that tract.”

Synopsis

Appeal from a judgment for the plaintiff, and from an order denying new trial, in the Fifth District Court, County of San Joaquin. Bookeb, J.

The facts are stated in the opinion.

After the decision in Department, the appellant filed his petition that the appeal be reheard in Bank, and the application was denied..

Morrison. C. J.: This is an action of ejectment; and after the evidence was closed, the Court below found the following facts:

“ FINDINGS.

“ In this case, the Court finds the following facts :

“ 1. That the land in controversy was embraced in a patent issued to the Western Pacific Railroad Company by the United [167]States Government on the-day of May,-A. D. 1870, which was duly recorded in San Joaquin County.

“ 2. That by articles of consolidation and amalgamation, executed the 22nd day of June, 1870, said Western Pacific Railroad Company and the Central Pacific Railroad Company of California were consolidated and formed into a new corporation, called the Central Pacific Railroad Company, and all the interest to said land, acquired by said patent, were conveyed to and vested in said Central Pacific Railroad Company.

“ That on the 5th day of April, 1871, said Central Pacific Railroad conveyed said land by deed to J ames W. Whitaker, who, on the 9th day of May, A. D. 1874, conveyed the said land by deed to the plaintiff.

“ That plaintiff, since said conveyance from Whitaker, has occupied and cultivated said land, having the same enclosed with a substantial fence.

“ 3. That on the 17fch day of July, 1877, the defendant entered upon said land and built a house near the center of the west line, which house he has since occupied, and has cultivated about half an acre of said land.

“ That at the time of the. entry of the defendant, said tract of land had been plowed by plaintiff, preparatory to sowing a crop of grain.

“ That in the winter of 1877, plaintiff sowed in wheat the whole of said land, except the half-acre above mentioned, which was occupied by the defendant.

“ 4. That on the-day of March, A. D. 1878, defendant prepared a declaratory statement of his intention to pre-empt said land, and offered to file the same with the register of the land office at Stockton, California, and tendered to the register his fees for filing the same; said register refused to accept and file said declaratory statement, from which refusal defendant appealed to the commissioner of the general land office; and that no decision upon said appeal has been received at the Stockton land office.

Davis v. Scott

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