Bullock v. Rouse

Belcher, C. C. This action was brought to determine an adverse claim to a piece of land described as the south half of the southeast quarter of a certain thirty-sixth section. The plaintiffs claim the land under a certificate of purchase issued by the proper officers of the state, and the defendant claims it under a certificate of homestead entry issued by the proper officers of the United States. The court below gave judgment for the defendant, and the plaintiffs appeal. The case is brought here on the judgment roll.

It appears, from the findings, that prior to the 21st of December, 1871, the greater part of the exterior lines of the- township in which the land in question is situated [592]had been run and established by the United States, and some of the sections therein had been ascertained and established. Lines had also been run on the north, south, and west sides of section 36, and section corners had been established at the ends of each of these lines, and quarter-section corners at the middle of each one of them. But the east line of this section had not been run, and no quarter-section corner bad been established upon it. And on the plat of the survey of the township filed in the local land-office the whole of the east half of section 36 was marked and returned as unsurveyed.

With the survey in this condition, one Robert Lowery made application to purchase from the sthte the land in controversy, and on the 21st of December, 1871, a certificate of purchase of the land, in due form, was issued to him'by the state.

Subsequently one Joseph Russ, the plaintiff’s testator, acquired by purchase and conveyance all the right, title, and interest of Lowery in and to the land. After his purchase, and prior to June, 1884, Russ erected a fence upon the east and west sides of the land, which, connecting with gulches and timber, served to inclose the land sufficiently to keep stock out; that is to say, the fences and natural barriers answered for all practical purposes as an inclosure.

The land was grazing land and was used by Russ for the pasturage of his stock, but in June, 1884, the fences had become somewhat dilapidated, and in places were down for a few feet. Neither Russ nor his grantor ever made any other improvements upon the land.

In June, 1884, the defendant, with notice of all the facts above stated, made a peaceable entry upon the land, and erected a dwelling-house thereon,.in which he thereafter peaceably and without molestation continued to reside up to the time of the trial, asserting all the time a claim to the land by virtue of his settlement. After his entry, defendant, at his own expense, procured