Peterson v. Kinkead

Vanclief, C. Action in the nature of ejectment to recover from defendant the possession of the southwest quarter of the northwest quarter of section 29, township 14 south, range 6 east, Mt. Diablo meridian, in the county of San Benito. The action was commenced December 13, 1888.

The answer of the defendant, after denying all the [375]allegations of the complaint, proceeds as follows: “ And for another and further answer, defendant avers that the land described in the complaint is public land of the United States, open to settlement under the homestead and pre-emption laws; that defendant is a citizen of the United States, over the age of twenty-one years, and a married man, having a wife and child; that defendant is now residing upon said land, with a view and intent of entering the same as a homestead under said homestead laws, and of acquiring title thereto under said homestead laws; that said land is subject to a claim of the Southern Pacific railroad, but for a valuable consideration said company will abandon and relinquish its said claim to said land, and the same will thereby become open to immediate entry under said homestead laws; and defendant with his said family is now residing upon said land in good faith, and with the intention of procuring said relinquishment of said railroad company, and of immediately thereafter entering the same as a homestead as aforesaid; and that any claim of said plaintiff to said land is in fraud of the right of said defendant to enter said homestead, and of the government of the United States, and of the right of the latter to said land, and its right to dispose of the same under said homestead laws.”

Judgment passed for the plaintiff, and defendant appeals from it, and from an order denying his motion for a new trial.

The court found that the demanded premises “is a part of the government domain, and open to settlement under the homestead and pre-emption laws of the United States, subject, however, to the inchoate title of the Southern Pacific Railroad Company”; that plaintiff “entered into possession of said land under purchase of the ‘right of possession’ from one Hitchcock, about six years ago, said Hitchcock being at the time in the peaceable and exclusive possession thereof”; that from the time of such purchase and entry until 1888, the plaintiff continuously cultivated about ten acres of the land, tak[376]