Barkley v. U.S.

• Decision Date: 01 February 1888
• Citation: 19 P. 36,3 Wash.Terr. 522
• Court: Washington Supreme Court
• Parties: BARKLEY v. UNITED STATES.

19 P. 36

3 Wash.Terr. 522

BARKLEY v. UNITED STATES.

Supreme Court of Territory of Washington

February 1, 1888

Appeal from Second district court.

Action by the United States against Hugh Barkley to remove inclosures placed upon public lands by defendant. Judgment for plaintiff, and defendant appeals.

ALLYN, J.

The question in this case involves the status of sections 16 and 36, reserved for school purposes throughout Washington Territory. The United States, by its attorney, filed its complaint at Pomeroy claiming- First, that "sec. 36, Tp. No. 9 N. of R. 44 east of the W. M., is and was public lands of the United States;" second, that on the 1st day of November, 1884, Hugh Barkley, "without right or color of title, and without an asserted right thereto, by or under a claim made in good faith, went upon said tract of land and inclosed same," etc., and so continues; prays removal of the inclosure, for an injunction, and other relief. To this the defendant (appellant) files a general demurrer, which was overruled, and decree given as prayed. Defendant appeals.

The admissions by the demurrer that this section is public lands of the United States, and the defendant without right or color of right thereon, would seem to dispose of this case but both parties apparently agree in submitting for determination the question whether the identification of sections 16 and 36 of the public lands by survey, and their reservation for school purposes by act of congress, operated as a conveyance or grant of the interest of the government in said lands, so as to take them out of the domain of public lands of the United States, so that the government could have no right of control or supervision over them, as claimed and asserted herein. It is made unlawful to inclose any public lands of the United States without claim or color of title in good faith, as by entry, etc. Section 1, act Feb. 25, 1885 (23 St. 321.) It is contended that these lands were severed from the public domain by the act of 1853, and therefore section 1, just referred to, does not apply to these. The mere survey of these lands would not cause them to lose their character of public lands. Such change could occur only when they have lost their public character, by reason of a bona fide right of private entry or ownership under the laws of the United States. Now, because of the mere reservation or appropriation by the United States of these...