Cox v. Hart

• Decision Date: 03 January 1921
• Docket Number: 3526.
• Citation: 270 F. 51
• Parties: COX v. HART.
• Court: U.S. Court of Appeals — Ninth Circuit

270 F. 51

COX v. HART.

No. 3526.

United States Court of Appeals, Ninth Circuit.

January 3, 1921

Rehearing Denied February 14, 1921.

Appeal is taken from a decree whereby it was adjudged that the appellant herein held title in trust for the appellee to 160 acres of land. The land is situated in the Imperial Valley in San Diego county, Cal., the lands whereof were originally surveyed in 1856. Settlement did not begin until nearly half a century later. It was then found that the marks of the survey had so far been obliterated that it was practically impossible to locate the lines thereof. On July 1, 1902 Congress passed an act (32 Stat. 728) providing for the resurvey of lands in the Imperial Valley, but that survey was not completed until February, 1909. In the meantime entries upon the land under the public land laws were permitted. In February, 1906, the appellee caused a furrow to be plowed around 320 acres, the west 160 acres of which is the land in controversy in the present suit. She posted notices of her claim. In 1906 she raised a crop on 80 acres of the east half of her claim, and sowed grain on 4 or 5 acres of the west half. On that half she plowed furrows for a ditch, and in November, 1906, set stakes for marking out a head ditch along the east line of the land in controversy, and marked out lines for borders thereof and plowed furrows for a ditch on the south line thereof. On November 8, 1906, the appellant moved a tent house onto the northeast corner of the tract in controversy, and laid claim to that 160 acres. He saw the furrows which had been plowed on that land, and he was notified of the appellee's claim thereto. He lived on the land until March, 1909, when he was ejected therefrom as the result of a suit brought by the appellee in the state court.

In July, 1907, the appellant made application for the land in controversy, describing it by metes and bounds. His application was rejected, on account of defective description. Thirteen days later the appellee made an application for the 320 acres which she claimed, and her application was likewise rejected. After the completion of the resurvey, the appellant on March 1, 1909, renewed his application, and on May 15, 1909, the appellee renewed her application; both applications describing the lands in the terms of the resurvey. On a hearing in the local land office decision was rendered in favor of the appellant, and upon appeal to the Commissioner of the General Land Office the decision was reversed, but upon appeal to the Secretary the final decision was in favor of the appellant. The court below, upon the pleadings and proof, reached the conclusion that the Commissioner of the General Land Office was correct in his conclusion, and entered a decree for the appellee.

M. W Conkling, of El Centro, Cal., for appellant.

George H. P. Shaw, E. W. Britt, and Wm. J. Hunsaker, all of Los Angeles, Cal., for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

Decision of the controversy on the merits, both in the land office and in the court below, turned on the question whether or not the appellee was entitled to the preference right conferred by the act of Congress of March 28, 1908 (Comp. St. Sec. 4681) which provides that entries under the Desert Land Acts-- 'shall be restricted to surveyed public lands of the character contemplated by said acts, and no * * * entries of unsurveyed lands shall be allowed or made of record: Provided, however, that any individual qualified to make entry of desert lands under said acts who has, prior to survey, taken possession of the tract of unsurveyed desert land not exceeding in area 320 acres in compact form, and has reclaimed or has in good faith commenced the work of reclaiming the same, shall have the preference right to make entry of such tract under said acts, in conformity with the public...