Goodwin v. McCabe
Before: Hayne
Synopsis
Possession—Natural Barriers. — Natural barriers may be sufficient to form an inclosure for the purposes of the rule in reference to actual possession of real property. Whether they are so or not is a question for the jury under proper instructions.
Id. —Instructions. —If there is sufficient evidence to go to the jury upon the question, it is error to refuse an instruction that if the jury believe that plaintiff’s fences, together with natural harriers, formed an inclosure sufficient to turn cattle, it was sufficient for the purposes of possession.
Color oe Title. — An entry under a swamp-land certificate, in the belief in good faith that it confers a right to the land, is an entry under color of title.
Homestead Entry upon Publio Land—Risht to Possession.—A party who makes a valid homestead entry under the laws of the United States, and pays what is required, has a right to the possession as against third persons, and can defeat an action of ejectment brought upon a prior possession.
Id. —Homestead Entry upon Land in Actual Possession op Another— Force. — A homestead entry upon public land in the actual possession of another is invalid, although no force be used to gain possession.
Id.—Constructive Possession.—But this rule does not apply where the possession is not actual but merely constructive.
Receipt op Receiver of Land-office as Evidence of Payments to Him.—The receipt o£ the receiver of the United. States land-office for payments upon a homestead entry are admissible to show such payments.
Map in Register’s Office — Certified Copy.—A certified copy of the map in the office of the register of the United States land-office is admissible upon the question of the character of the land.
Hayne, C. Ejectment. The plaintiff relies on prior possession. The defendant relies on a homestead entry under the laws of the United States. Verdict and judgment for defendant. Plaintiff appeals from the judgment, and from an order denying his motion for a new trial.
We think that the judgment and order must be reversed for the refusal of certain instructions requested by plaintiff.
The land in controversy is public land. The plaintiff resided upon an adjoining piece to which the title is undisputed. In order to make out his possession, he proved that the whole tract, including that upon which he resided, had on one side a body of water known as Clear Lake, on another a slough which emptied into the lake, and on the remaining sides a fence built partly by himself and partly by his neighbors; and he gave evidence tending to show the pasturing of his cattle there. The greater part of the evidence related to the character of the slough, that is to say, whether it was of sufficient depth and firmness of bottom to turn cattle.
In its charge the court made no mention of the natural boundaries, but simply told the jury that it was sufficient for the plaintiff to have a substantial inclos[586]ure, and that “a substantial inclosure is such a one as a prudent farmer would have to protect a growing crop, and sufficient to protect the land from cattle, horses, and hogs, the character of the land and the crops growing upon the same being considered.”
This was all that was said upon the subject. No reference to natural barriers was made. Thereupon the plaintiff requested the court to give the following instructions:—
“ If plaintiff, at any time before the defendant entered upon the land in controversy, built a fence of any kind in such a manner that, together with natural barriers, it formed a complete inclosure sufficient to turn cattle, which inclosure included within it the land in controversy, and if said land was suitable for pasturage, and was used by plaintiff for that purpose up to the time of the entry of the defendant, then there was established in plaintiff such possession of said lands as to entitle him to recover, and your verdict will be for the plaintiff.”
The court refused to give the instruction, and the plaintiff excepted. We think the instruction should have been given.
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