Altschul v. Clark

• Decision Date: 12 August 1901
• Citation: 39 Or. 315,65 P. 991
• Parties: ALTSCHUL v. CLARK.
• Court: Oregon Supreme Court

65 P. 991

39 Or. 315

ALTSCHUL v. CLARK.

Supreme Court of Oregon

August 12, 1901

Appeal from circuit court, Harney county; Morton D. Clifford, Judge.

Action by Charles Altschul against Emmett Clark. From a judgment in favor of defendant, plaintiff appeals. Reversed.

This is an action to recover possession of the S.E. 1/4 of the S.E 1/4, and lots 5 and 6, of section 23, township 22 S., range 30 E., Will.Mer. It is stipulated by the parties hereto that the plaintiff holds the record title, and adverse possession for the period of more than 10 years prior to the commencement of this action is the sole defense interposed. By further stipulation it appears that the plaintiff has succeeded to whatever rights or interest the Willamette Valley & Cascade Mountain Wagon-Road Company acquired through the acts of congress of July 5, 1866, and June 18, 1874, and the act of the legislative assembly of the state of Oregon of October 24, 1866; that the lands involved were surveyed January 28, 1884, and the plat thereof filed in the local land office May 26th following, and that they were withdrawn from sale and settlement August 6, 1874; that on July 17 1884, the company presented to the register and receiver of the local land office a selection list embracing the 40-acre tract, tendering with it the regular and customary fees which were rejected; that on January 26, 1899, the company again presented for filing and approval its list embracing the same land, which was thereupon filed and approved; that on July 17, 1884, the company presented a selection list separate from the one above alluded to, comprising lots 5 and 6, to the register and receiver of the local land office for filing, tendering the fees therewith, which was filed and approved, but that thereafter, in the year 1887, the selection of said lots was disallowed and rejected by the commissioner of the general land office, and was never at any time prior to 1893 approved by such commissioner, the secretary of the interior, or other officer of the general government, save the register and receiver; that on June 11, 1884, Elonzo N. Fleming filed a pre-emption declaratory statement for said 40-acre tract, and on May 9, 1887, transmuted said filing to a homestead entry; that on June 3, 1891, he submitted final proof, and the matter was suspended by the register and receiver, who decided that the entry was in conflict with the grant of the road company, from which decision he prosecuted an appeal to the commissioner of the general land office, and thence to the secretary of the interior, which resulted in the matter being remanded to the commissioner to be disposed of in accordance with directions. Thereupon the commissioner found that the tract had never been selected by the company, and sustained Fleming's entry, whereupon the company took an appeal, which culminated in the cancellation of the entry on February 9, 1899. No attempt has ever been made by the defendant or his predecessors to acquire title from the government to lots 5 and 6. The defendant is the grantee of Fleming, and his adverse possession, if effective as a defense, was initiated in 1883, and has been continuous in Fleming and the defendant ever since. Fleming testified that he made the homestead filing in 1886; that he did not know who held the paper or legal title to the land at the time; that his purpose in filing was "to ascertain whether the government had any right or not"; that he did not intend, by anything he did with respect to such filing, to recognize title in the United States. On cross-examination he says that he went to the expense of litigating in the land department because he had no other means of acquiring the government's right, if it had any; that he did not know whether it had any right therein or not; that he expected to get title, if he did not get it from the government, by holding it as a home. At the conclusion of the trial the plaintiff requested the court to instruct the jury to return a verdict in his favor. This was refused, and the court gave the following, among other instructions: "I charge you that the filing by the road company, in the proper local land office, of the selection list including the lands in controversy, and the payment or tender of payment of the fees required by the government therefor, operated to then and there pass title [to the lands selected] to the road company;" and, further, in effect, that if Fleming filed his homestead application with the intention of recognizing the title as being in the United States or plaintiff's predecessor in interest,--that is, if the jury believed from the evidence that such was his intention in making such filing,--then that the defendant was not entitled to prevail; but if, on the other hand, such was not his intention,--which was a question of fact for their determination,--and he and the defendant have since held adverse possession for a period of 10 years, then that this verdict should be for the defendant. Exceptions were duly saved, and, the verdict and judgment being for defendant, plaintiff appeals.

S.B. Linthicum, for appellant.

Will R. King and L.R. Webster, for respondent.

WOLVERTON J. (after stating the facts).

It was decided by this court in Altschul v. O'Neill, 35 Or. 202, 58 P. 95, that adverse possession, such as will set in motion the statute of limitations, could not be set up against one deraigning title from the general government while the occupant asserted, admitted, or recognized that the true or ultimate title was yet in the government. It was broadly urged there, as here, that the claim of right or ownership and adverse holding need only be against the true owner, and that the occupant may make such claim, and at the same time concede that title exists in the government; or, to put it in another form, that the claim of right is sufficient if against all persons except the United States. Speaking upon the facts of the case, we said: "The admission of title in the government, to which the plaintiff succeeds, is tantamount to an admission of plaintiff's title, as it was the only true one in the premises. In this connection Judge Ross' declaration in Lord v. Sawyer, 57 Cal. 65, is apropos: Such a holding may, nevertheless, be adverse to every one not holding under the government. The converse is equally true,--that it would not be adverse to one holding under the government. If the defendant's possession had continued unexplained for the statutory period, he would perhaps, have been entitled to the presumption that it was adverse. But the tendency of the testimony and the instruction of the court implies evidence of admission or an assertion that he was not claiming the fee, but a possessory right only, such as would entitle him to a homestead entry, and none other; and this of itself is sufficient to explain the manner of his holding, and that it never became adverse to the plaintiff." To that doctrine we still adhere. But the question is here presented in a somewhat different form. The defendant's predecessor says that when he filed his pre-emption, and subsequently commuted it into a homestead, and prosecuted the matter to a final determination through the land department, he did not know what title the general government had, and was seeking thereby to obtain only such title as it had, if it had any and did not intend to recognize that it had any right or title whatever. And the court instructed that, if he did not intend thereby to recognize the title as being in the United States, and held adversely, the plaintiff was not entitled to recover. Thus is presented the question whether a party may prosecute a claim for pre-emption or homestead, carrying it through the different tribunals of the land department of the general government without success, and at the same time be permitted to say that he was endeavoring to obtain only such title as the government had, and did not thereby intend to recognize that it was possessed of the true title. The mere statement of the proposition is sufficient to refute it as unwholesome doctrine. But let us pursue the inquiry. It is well known that the government is the original source of all titles to realty; that, being the owner primarily, it adopted a policy of disposing of the public domain to those desiring to acquire homes and become freeholders. But, for the purpose of an orderly administration thereof, it adopted, as it had the right and authority to do, certain rules and regulations, and provided appropriate tribunals for the determination of conflicting rights inaugurated under the system, whereby the title may be acquired. In furtherance of its policy, and as a means of disposal, the laws relating to pre-emption and homesteads were enacted. To inaugurate a valid pre-emption right thereunder, the claimant must make a settlement in person on public lands subject to pre-emption (section 2259, Rev.St.), and the rules of the department require that he make a declaratory statement of the fact that it is his intention to claim the tract of land selected for a pre-emption right, which must be accompanied by an affidavit showing that he settled upon and improved the land in good faith to appropriate it to his own use, and that he has not made any agreement or contract whereby the title he might acquire from the government should inure in any degree to any one except himself. Circular, General Land Office, "Title To Public Lands" (issued July 11, 1899), Forms 4-534, 4-061, pp. 272, 273. As the law stood at the time Fleming made his homestead application, he was entitled to enter and acquire a quarter section or less quantity of unappropriated lands. Section 2289, Rev.St. And he was authorized to commute his pre-emption into a homestead, which entitled him to the...