Gonzales v. French
| Decision Date | 28 January 1893 |
| Docket Number | Civil 347 |
| Citation | 33 P. 501,4 Ariz. 77 |
| Parties | EMMA J. GONZALES, Plaintiff and Appellant, v. E. W. FRENCH et al., Defendants and Appellees |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Coconino. Edmund W. Wells Judge.
Affirmed.
J. F Wilson, for Appellant.
W. L Van Horn, and Stewart & Doe, for Appellees.
The facts are stated in the opinion.
Appellant, Emma J. Gonzales, seeks in this action to have appellee J. E. Jones, probate judge of Coconino County, and, as such, trustee of the patent of the townsite of Flagstaff, and successor, as such trustee, of appellee E. W. French, probate judge of Yavapai County, declared the trustee for her use and benefit of certain of the lands embraced in the premises covered by said patent. The facts upon which she relies to establish her right to the relief demanded, as stated in her complaint, are substantially as follows: That in the year 1876, Thomas F. McMillan, Frank Christie, and Conrad Farriner, who were then and there qualified to enter lands under the pre-emption laws of the United States, located and settled upon lands subsequently ascertained after survey to be a part of section 16 in township 21 north, of range 7 east, Gila and Salt River Meridian; and prior to the survey of said land in the field cultivated and improved by building residences thereon, with a view of making permanent homes thereon, and obtaining title thereto by pre-emption under the pre-emption laws of the United States as soon as the same should become subject thereto. That in 1878 a survey in the field was made of the township of which said section is a part, which survey, together with the plat of the same, was approved February 3, 1879, and the settlements and improvements made by said settlers McMillan and Farriner found to be on said section 16. That in June, 1883, Christie having meanwhile died, said McMillan and Farriner sold, transferred, and assigned their possessory rights, together with the improvements made by them on said section 16, to appellant, who immediately took possession, and has ever since resided on said land, and has made lasting and valuable improvements thereon. That on the second day of April, 1885, appellant, a citizen of the United States, the head of a family, and feme sole, applied to the register and receiver of the land office at the city of Prescott, A. T., as such settler on such land, to file her declaratory statement, and to enter the same under the pre-emption laws of the United States, and offered and tendered then and there to such officers the necessary fees for such filing and entry. That at the time appellant applied to make her said entry no other person or persons had settled or offered to make any filing on said land, nor was there any adverse claim in esse, or any adverse claimant known. That her said application to file on and enter said land, as aforesaid, was refused and rejected by said United States land officers at Prescott, who still refuse to permit said filing, although repeatedly thereafter so requested by appellant. That on the thirteenth day of February, 1889, Congress passed an act entitled "A bill for the relief of the inhabitants of the town of Flagstaff, county of Yavapai, territory of Arizona." Omitting the enacting clause, the act was as follows: That the lands occupied and settled upon by appellant, as aforesaid, were embraced in said south half of section 16. That on June 17, 1889, E. W. French, probate judge of the said county of Yavapai, as provided in said act, filed a declaratory statement in said land office at Prescott for the entry of said south half of section 16, in accordance with the provisions of said act. That on July 28, 1889, when entry under said filing was attempted to be made by said probate judge, as aforesaid, appellant appeared in said local land office at Prescott, and filed her contest and protest to the allowance of said entry, and thereupon a hearing was had before said land officers, who decided in favor of the entry by the probate judge and against the right of appellant to enter the same. That from said decision of said local land officers she took an appeal to the commissioner of the general land office, who affirmed the ruling of the said local land officers. That from said decision she appealed to the secretary of the interior, who sustained the ruling of the commissioner. That subsequently the land department issued a patent to said land, including the land held by appellant, to said probate judge, in trust for the occupants of said town of Flagstaff. That on the nineteenth day of February, 1891, the legislative assembly of the territory of Arizona created the county of Coconino from the said county of Yavapai, and that said town of Flagstaff is embraced within the new county. That appellee J. E. Jones was elected probate judge of the latter county, and by virtue thereof became the acting trustee of said townsite patent. There was a general demurrer interposed by the appellees to the sufficiency of the complaint, which was sustained by the court below, and a judgment entered for the appellees upon the demurrer.
The position assumed by the appellant upon the appeal from said judgment is, that the facts as stated by her in her complaint entitled her to the relief prayed for, for two reasons First--That McMillan and Farriner having, prior to the survey of the land in the field settled upon, cultivated, and improved a portion of said ...
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