Cox v. Hart

• Decision Date: 11 December 1922
• Docket Number: No. 71,71
• Citation: 260 U.S. 427,43 S.Ct. 154,67 L.Ed. 332
• Parties: COX v. HART
• Court: U.S. Supreme Court

260 U.S. 427

43 S.Ct. 154

67 L.Ed. 332

COX

v HART.

No. 71.

Argued Nov. 16, 1922.

Decided Dec. 11, 1922.

[Syllabus on pages 427-428 intentionally omitted] Mr. Charles R. Pierce, of Washington, D. C., for appellant.

Messrs. Eugene W. Britt and William J. Hunsaker, both of Los Angeles, Cal., for appellee.

Mr. Justice SUTHERLAND delivered the opinion of the Court.

This case involves conflicting claims to a tract of 160 acres of land in Imperial county (formerly San Diego county), state of California. The facts, so far as necessary to be stated, are as follows:

About the years 1854-56 the body of public lands, which includes the tract in controversy, was surveyed under the authority of the United States. No settlements upon these lands of any consequence were made until the year 1900. In the interval the marks of the survey had so far disappeared as to render it practically impossible to locate the lines which the survey had established. None of the section or township corners originally placed upon or in the vicinity of the land here involved was in place, and it was impossible to determine by reference to that survey in what section it was located.

On July 1, 1902, Congress provided for a resurvey of this body of public lands, by an act (32 Stat. 728) as follows:

'That the Secretary of the Interior, be, and he is hereby, authorized to cause to be made a resurvey of the lands in San Diego county, in the state of California, embraced in and consisting of the tier of townships thirteen, fourteen, fifteen, and sixteen south, of ranges eleven, twelve, thirteen, fourteen, fifteen, and sixten east, and the fractional township seventeen south, of ranges fifteen and sixteen east, all of San Bernardino base and meridian; and all rules and regulations of the Interior Department requiring petitions from all settlers of said townships asking for resurvey and agreement to abide by the result of the same so far as these lands are concerned are hereby abrogated: Provided, that nothing herein contained shall be so construed as to impair the present bona fide claim of any actual occupant of any of said lands to the lands so occupied.'

The resurvey thus authorized was made and the approved plats filed in 1909.

On March 28, 1908, Congress passed an act to limit and restrict the right of entry and assignment under the desert land law and to authorize an extension of the time within which to make final proof. 35 Stat. 52. Section 1 of that act is as follows:

'That from and after the passage of this act the right to make entry of desert lands under the provisions of the act approved March third, eighteen hundred and seventy-seven, entitled 'An act to provide for the sale of desert lands in certain states and territories,' as amended by the act approved March third, eighteen hundred and ninety-one, entitled 'An act to repeal timber-culture laws, and for other purposes,' shall be restricted to surveyed public lands of the character contemplated by said acts, and no such 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 a tract of unsurveyed desert land not exceeding in area three hundred and twenty 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 land surveys, within ninety days after the filing of the approved plat of survey in the district land office.' Comp. St. § 4681.

The appellee (plaintiff below), during the year 1906, being then of age and qualified, began the work of reclaiming a tract of 320 acres, including the lands here in controversy. Previously, and shortly before she was of age, her father, acting in her behalf, had caused a furrow to be plowed around the entire 320-acre tract, and had posted a notice claiming it for the appellee. During the year 1906 appellee caused about 80 acres of that portion of the tract lying east of the lands in controversy to be leveled, cleared and seeded to barley, and ditches for irrigating the same to be constructed. All the lands at that time were unoccupied desert lands, within the meaning of the land laws of the United States. The barley was irrigated several times during the year. After the crop had matured and during the year 1906 the appellee fenced the land upon which it had been grown, and also during the year seeded to barley about 5 acres of the 160 acres in controversy. This crop, however, did not mature. Early in November, 1906, the appellee constructed a head ditch along the east line of the specific tract in controversy and did some work in preparation for the irrigation of the south half thereof, and also put up stakes upon the south half to mark the lines. She also caused borders to be made along the east line in preparation for the construction of a head ditch. This was the state of things on November 8, 1906, when the appellant put up a tent house upon the land, established a residence and claimed the 160-acre tract. Appellant saw the plowed furrows along the east and south sides of the land and was notified by appellee's father that that 160-acre tract was included within appellee's 320-acre claim. Appellant remained on the tract until he was ejected, in March, 1909, as the result of a judgment obtained by appellee against him in a state court. Hart v. Cox, 171 Cal. 364, 153 Pac. 391. Appellant during his occupancy constructed a ditch one-half mile in length and did some other work on the land.

Appellant, in July, 1907, filed an application for the land in the local land office, but his application was rejected for the reason that the description was defective. Later in the same month appellee filed an application for the entire 320-acre tract, but her application was rejected.

In March, 1909, after the resurvey had been completed, appellant filed a new application and shortly thereafter and within 90 days after the filing of the survey plat, appellee also filed a new application, both applications describing the lands with reference to the resurvey. Decision was rendered in the local land office in favor of appellant. The Commissioner of the General Land Office reversed this decision, but the Secretary of the Interior reversed the Commissioner and affirmed the local land office in favor of appellant. Subsequently, on October 24, 1918, a patent was issued to the appellant for the land in controversy.

Appellee thereupon brought suit against the appellant in the United States District Court for the Southern District of California, and prayed a decree declaring that appellant held the land in trust and requiring appellant to convey the legal title to her. That court rendered a decree in favor of appellee, and the case was carried by appeal to the Circuit Court of Appeals for the Ninth Circuit, where, after hearing, the decree of the District Court was affirmed. 270 Fed. 51. The case is here upon appeal from the Circuit Court of Appeals.

The rights of the parties turn upon the meaning and effect of the proviso to section 1 of the Act of March 28, 1908, heretofore quoted. That priviso is, in substance, that where a qualified entryman has prior to survey taken possession of a tract not exceeding 320 acres of unsurveyed desert land and has reclaimed or in good faith commenced the work of reclaiming the same he shall have the preference right to make entry of such tract within 90 days after the filing of the plat of survey in the local land office. Two questions are, therefore, presented for solution:

(1) Did appellee take possession of the lands and reclaim or in good faith commence the work of reclaiming the same prior to the attempted appropriation by appellant?

(2) Were the lands at the time unsurveyed desert lands, to which upon the facts the statutory preference right to make entry attached? Appellant denies that the lands were unsurveyed and contends, moreover, that in any event, appellee is not within the terms of the proviso since whatever she did was prior to the passage of the act which is not to be given retrospective operation.

1. Prior to appellant's occupation on November 8, 1906, appellee had entered upon and exercised and was then exercising the acts of dominion herein set forth over the 320-acre tract under a claim of right. When appellant entered upon the land all these evidences of appellee's claim and possession were open and visible and in addition appellant was specifically notified that the claim included the land in controversy.

What will constitute possession of land largely depends upon its character, condition and the use to which it is adapted. Here appellee went upon the land for the purpose of reclaiming it from its desert character. The whole of it obviously could not be reclaimed at once. The building of ditches, the securing of a water supply, the plowing and preparation of the land and the planting of crops were all steps requiring time. Residence upon the land was not required as a prerequisite to securing title under the Desert Land Laws. Having in view all the conditions we are of opinion that the facts sufficiently establish appellee's actual possession of the entire tract at the time appellant sought to make his...