Gonder v. Miller

• Decision Date: 27 July 1891
• Docket Number: 1,338.
• Parties: GONDER v. MILLER.
• Court: Nevada Supreme Court

27 P. 333

21 Nev. 180

GONDER v. MILLER.

No. 1,338.

Supreme Court of Nevada

July 27, 1891

Appeal from district court, White Pine county; THOMAS H. WELLS Judge. Action of ejectment by D. A. Gonder against H. L Miller. Defendants motion for nonsuit granted. Plaintiff appeals. Reversed

Rives & Judge, for appellant.

Frank X. Murphy and Thomas Wren, for respondent.

BELKNAP C.J.

This is an action of ejectment for the recovery of the possession of a tract of unsurveyed government land containing about 40 acres. Plaintiff introduced testimony tending to prove prior possession of the demanded premises, and an ouster, and rested his case. No evidence was introduced tending to show the nature of defendant's claim. A motion for nonsuit was granted, upon the ground that plaintiff had not acquired, nor shown any intention of acquiring, the government title to the land. In support of the ruling, respondent relies upon the provisions of an act of congress entitled "An act to prevent the unlawful occupancy of public lands," approved February 25, 1885, (23 St. at Large, 321.) The provisions of the act upon which reliance is placed are those which declare that the inclosure of any portion of the public domain to which the person making the inclosure has no claim or color of title or asserted right, made in good faith, with a view to entry under the land laws of the United States, or any fencing or inclosing of such lands whereby others are prevented from settling thereon under the public land laws of the United States, is unlawful. Prior to the adoption of this statute, the supreme court of the United States in Atherton v. Fowler, 96 U.S. 513, and other cases had held that a preemption right to public land could not be initiated by intrusion upon the possession of another. In that case the court said: "It is not to be presumed that congress intended, in the remote regions where these settlements are made, to invite forcible invasion of the premises of another, in order to confer the gratuitous right of preference of purchase on the invaders. In the parts of the country where these preemptions are usually made, the protection of the law to rights of persons and property is generally but imperfect under the best of circumstances. It cannot, therefore, be believed, without the strongest evidence, that congress has extended a standing invitation to the strong, the daring, and the unscrupulous to dispossess by force...