Haven v. Haws

Per Curiam. The question involved in this appeal, as stated by appellant's counsel, is as follows: —

“ Can a qualified pre-emptor, intending at the time of settlement to take the whole of a quarter section, one. hundred and sixty acres, initiate a valid claim to the whole by performing acts of settlement on one eighty, while the other eighty is enclosed and cultivated by another person, before and at the time the attempt begins?"

It is insisted by appellant that the officers of the land department of the United States erred in law, in holding that a qualified pre-emptor could, under the circumstances stated, initiate his claim and acquire title to the eighty acres so in possession of another person.

Appellant relies upon Atherton v. Fowler, 96 U. S. 519; Hosmer v. Wallace, 97 U. S. 575; and Trenouth v. San Francisco, 100 U. S. 251.

These cases do not sustain his position. In Atherton v. Fowler, it was held: Ho right of pre-emption can be established by a settlement and improvement upon a tract of public land where [516]the claimant forcibly intruded upon the possession of another. Such intrusion is a trespass and cannot initiate a right of preemption. The pre-emption laws cannot be made an apology for trespasses or acts of violence, but in the case before us there was no intrusion upon the actual or constructive possession of the appellant.

In Hosmer v. Wallace the defendant was a purchaser from a Mexican grantee. At the time when the plaintiff settled upon the land it was within the exterior limits of the grant, and was not “public land” within the meaning of the pre-emption laws. In 1862 the plaintiff was evicted by legal process. The Supreme Court of the United States held that the plaintiff acquired no right to pre-empt, by virtue of his occupation, prior to the date last mentioned. After that date it would seem that the plaintiff occupied a subdivision adjoining the exterior line of the Mexican grant and' adjoining the tract in possession of the defendant—the purchaser from the Mexican grantee. By the Act of Congress of 1866, the defendant acquired the right to pre-empt the tract he had purchased—a right which he enforced in the land department. The plaintiff, as a pre-emption claimant, had not made entry, paid for the land, and obtained a patent certificate before the passage of the Act of 1866. It was held the plaintiff had acquired no vested right when that act was passed, and that it was competent for Congress, by that act, to give to the defendant the superior right of pre-emption; “to deal with the land as it chose.” (Frisbie v. Whitney, 9 Wall. 187; The Yosemite Valley Case, 15 Wall. 77.)