Fulmele v. Camp

• Decision Date: 07 January 1895
• Parties: FULMELE v. CAMP. [1]
• Court: Colorado Supreme Court

39 P. 407

20 Colo. 495

FULMELE v. CAMP. ^[1]

Supreme Court of Colorado

January 7, 1895

Appeal from district court, Weld county.

Action by John T. Fulmele against Charles Camp. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought by Camp against Fulmele to recover the exclusive possession of 40 acres of land. The facts upon which plaintiff relies are substantially as follows: This land is included in, and a part of, the S.W. 1/4 of section 3, township 5 N., of range 65 W., said section being one of the numbered sections embraced in the congressional grant to the Denver Pacific Railway & Telegraph Company. On the 13th day of April, 1870, John Evans, trustee for said company conveyed the whole of said section to Horace Greeley, trustee for the Union Colony of Colorado. Through divers mesne conveyances, appellee's grantor acquired the title of said company to one-twentieth of the land in controversy in 1878, and the other twentieth in 1882; acquired water rights for the irrigation of the same; paid taxes thereon; and caused the same, in the fall of 1886, to be inclosed with a good and substantial fence, since which time alfalfa and other hay have been raised on the land. He conveyed the same on January 11, 1889, to appellee, who immediately entered into possession, and remained in the exclusive control thereof until the 15th day of August, 1889, when it is alleged appellant clandestinely and with force entered upon the land, and wrongfully withholds possession. The defendant seeks to justify his intrusion upon plaintiff's possession upon the ground that by reason of a pre-emption entry made by Alexander upon the S.W. 1/4 of section 3, prior to the congressional grant, this one-fourth section, which includes the land in controversy, was excepted from such grant, and remained public land, subject to pre-emption or homestead entry; and that on the 27th day of April, 1889, he made homestead entry in the land office at Denver of said quarter. His application to make final proof before the local land office was rejected, and is now pending on appeal before the commissioner of the general land office. The plaintiff learning of Alexander's pre-emption filing, made application on the 25th of June, 1889, to be allowed to purchase the land under the fifth section of the act of congress of March 3, 1887. His application was rejected by the local land office. From this decision he appealed, which appeal was also pending at the time of the commencement of this action. The court below found that the plaintiff was entitled to the peaceful and undisturbed possession of the land in question, and was, on the 15th day of August, 1889 in the actual and peaceful possession thereof, having the same inclosed with a good and substantial fence, and that on that day defendant wrongfully and forcibly entered upon said property without his consent or permission; and rendered judgment for possession and damages. From this judgment the...