Whittaker v. Pendola

The Court. This is an action to recover all but two or three acres of the land described in the following receipt:—

“ Receiver’s duplicate receipt, No. 4760—Homestead.

“Receiver’s Oeeice, Stockton,

February 17, 1887.

“Received of George W. Whittaker the sum of sixteen dollars-cents, being the amount of fee and compensation of register and receiver, for the entry of the east half of northwest quarter, and the east half of southwest quarter of section 18, in township 2 north, of range 14 east, Mount Diablo meridian, under section 2290, Revised Statutes of the United States.

“$16.00. John E. Budd, Receiver.”

On the trial, the plaintiff introduced this receipt in evidence, and testimony which showed that before the commencement of the action he had, in addition to the [298]payment mentioned in the receipt, built a house and taken up his residence on the two or three acres covered by his homestead location and not sued for. It further appeared that most of the demanded premises had been inclosed and cultivated by the defendant for about two years before the issuance of the receipt, and that he had thereon a house and barn. On this case plaintiff rested, and defendant moved for a nonsuit on the ground that plaintiff had shown no title. The motion was overruled, and defendant, without offering any evidence upon his part, submitted the case.

The court gave judgment for plaintiff, from which, and from an order subsequently made overruling his motion for a new trial, defendant appeals.

The defendant, not having shown any capacity in himself to acquire the government title to the demanded premises, nor any effort or intention to do so, stands in the position of a mere naked trespasser upon the public domain, with an inclosure erected and maintained, contrary to the express provisions of the act of Congress of February 25, 1885 (Statutes 1884-85, p. 321); and the main question in the case is, whether by such unauthorized inclosure he can prevent a homestead entry of the .land by a citizen of the United States who goes peaceably upon a portion of the tract, and in other respects complies with the law.

This is the precise question, or the converse of it, involved and decided in the case of Haven v. Haws, 63 Cal. 514; and on the authority of that case we hold that this plaintiff had the right to make his homestead entry of the whole tract, notwithstanding the possession by defendant of the greater portion of it.