Faull v. Cooke

• Citation: 19 Or. 455,26 P. 662
• Parties: FAULL v. COOKE
• Decision Date: 01 July 1890
• Court: Supreme Court of Oregon

26 P. 662

19 Or. 455

FAULL v. COOKE

Supreme Court of Oregon

July 1, 1890

Appeal from circuit court, Baker county; JAS. A. FEE, Judge.

(Syllabus by the Court.)

By the act of congress of March 14, 1880, (21 St. 141,) any settler who had or should thereafter settle on any of the public lands of the United States, whether surveyed or unsurveyed with the intention of claiming the same under the homestead laws, was allowed the same time to file his homestead application and perfect his original entry, in the United States land-office, as was allowed to settlers under the pre-emption laws to put their claims on record, and his right relates back to the date of settlement, the same as if he settled under the pre-emption laws.

A homestead claimant's riparian rights attach from the date of his settlement, provided he complies with the law, and obtains a patent for the land; and, when such patent is issued, it relates to the date of settlement, and cuts off the right to divert a stream of water running through such homestead.

An execution, regular upon its face, emanating from a court of competent jurisdiction, will protect an officer who obeys it but, when a purchaser claims title under an execution sale the judgment upon which the execution was issued must be proven.

By section 278, Hill's Code, an execution is returnable within 60 days after its receipt by the sheriff; and by section 293 the time may be enlarged 30 days by the consent of the plaintiff indorsed upon the writ.

When there has been no levy under an execution, and the return-day has expired, and the writ if functus officio, and confers no authority whatever, a levy and sale by virtue of it is a nullity.

Under the act of congress granting homesteads to actual settlers on the public lands of the United States, a homestead is not liable to be sold by virtue of an execution issued upon a judgment rendered for a debt contracted before a patent is issued for such homestead. Clark v. Bayley, 5 Or. 343, followed.

The sheriff in office at the time the certificate is produced and the deed demanded is the proper officer to make the deed, and not the one whose term of office has expired, although he may have made the sale before his office expired.

The evidence as to adverse user of water in controversy examined, and held insufficient to prove and adverse user for 10 years.

C.H. Carey, for appellant.

M.L. Olmsted and J.F. Watson, for respondent.

STRAHAN J.

A proper disposition of this case requires that we should notice the sources of title set up by the respective claimants, and in doing so it will be most convenient to first examine the defendant's title. In the year 1869 the lands through which Connor creek flows, and which are described in the defendant's answer, were unsurveyed and unoccupied public lands of the United States. During that year one Christian Hinckler settled upon the same as a homestead, and after the said land had been surveyed, on the 6th day of March, 1883, he made his regular application therefor, alleging his settlement thereon in February or March, 1869. On this application a patent was duly issued by the United States to said Hinckler, dated the 13th day of March, 1885. After Hinckler had perfected his right to said land under the homestead laws of the United States, he died intestate, in Baker county, Or., and John Geiser was duly appointed his administrator. Thereafter such proceedings were had in the county court of Baker county Or in the administration of said estate, that an order was duly made by said court, by virtue of which order the said real estate was sold by said administrator to the defendant, Cooke, for the sum of $1,550. This sale was duly confirmed by said court, and on the 5th day of July, 1887, said administrator executed and delivered to the defendant, Cooke, a deed to said premises, together with all the water-rights and privileges, ditches and ditch-rights, and all and singular improvements, tenements, hereditaments, and appurtenances. The evidence tends to show that as early as 1872 Hinckler, commencing on his homestead and near the line, cut a ditch extending nearly the entire length of his claim, by means of which he diverted the waters of Connor creek for the purposes of irrigating his land for agricultural and horticultural purposes, and that this claim is bounded on one side for almost its entire length by Snake river, and that Connor creek flows almost directly across the defendant's land, and empties into said river on said premises, so that there are no riparian owners below the defendant on said creek. In 1874 Hinckler dug another ditch, by which he diverted a portion of the waters of Connor creek, commencing a short distance above his land, by which means he conveyed the water to his land, and for a long distance through the same, and then, again leaving his land, the water was conveyed to a placer mining claim, where the same was used for some time for mining. After the mine was worked out, the water flowing in this ditch was also used by the said Hinckler for irrigating his land. Hinckler's ditches are numbered, respectively, 1 and 2. Ditch numbered 3 taps Connor creek above No. 2, and conveys water to the land of Hill, mentioned in the pleadings. This is an old ditch, but was dug after the ditches numbered 1 and 2, and was repaired and used by Hill some 3 or 4 years ago. The ditch marked "No. 4" on the plat taps Connor creek a long distance above No. 3, and is known as the "Tartar & Huffman Ditch," and was used for a while to convey water to a placer mine in Douglas gulch. It was also constructed after Hinckler had settled upon his homestead, and had diverted the water from Connor creek in both ditches numbered 1 and 2. Whatever right, title, or interest Hinckler had in the land described at the time of his death passed to the defendant by virtue of the deed made by the administrator of Hinckler. It is therefore necessary to determine what rights Hinckler acquired in said land by virtue of his homestead settlement and subsequent compliance with the act of congress granting homesteads to actual settlers upon the public lands of the United States, and the issuance to him of a patent therefor by the United States. Under the third section of the act of congress of March 14, 1880, c. 89, (21 St. 141,) it is provided that "any settler who has settled, or who shall hereafter settle, on any of the public lands of the United States, whether surveyed or unsurveyed, with the intention of claiming the same under the homestead laws, shall be allowed the same time to file his homestead application and perfect his original entry in the United States land-office as is now allowed to settlers under the pre-emption laws to put their claims on record, and his right shall relate back to the date of settlement, the same as if he settled under the pre-emption laws." In Larsen v. Navigation Co., 23 P. 974, (decided at the present term,) it was held, in effect, that a settlement made by a...