Greiner v. Fulton

• Decision Date: 09 May 1891
• Citation: 26 P. 705,46 Kan. 405
• Parties: GREINER v. FULTON.
• Court: Kansas Supreme Court

26 P. 705

46 Kan. 405

GREINER v. FULTON.

Supreme Court of Kansas

May 9, 1891

Syllabus

A party who has actually occupied and improved a lot on a town-site entered under sections 2387-2389, Rev. St. U. S., need not necessarily be an actual resident of such town site, to entitle him to recover possession of such lot. If he is a bona fide occupant of a portion of the town-site, he has a right to have his possession protected.

Commissioners’ decision. Error from district court Seward county; A. J. ABBOTT, Judge.

P. P Hilerman and Painter & Ross, for plaintiff in error.

S. N. Wood, for defendant in error.

OPINION

GREEN, C.

This action was brought by the plaintiff in error, in the district court of Seward county, to recover the possession of lot 1 in block 44, in the city of Springfield. The plaintiff in error claimed to be the equitable owner of the premises, which were a part of the Springfield town-site, which was located and laid out, on the public lands of the United States, some time before the 9th day of November, 1885. The lot in question had been previously occupied by John Kauble, who had made some improvements thereon. On the day named Kauble sold the improvements, and his right to the possession of the premises, to the plaintiff, who entered into possession of the same, and erected a dug-out, which was habitable, and continued to hold possession, through a tenant, until ousted by the defendant below, about the 6th day of April, 1886. It seems that there were no other improvements upon this lot at the time the plaintiff purchased the same, except those of Kauble; neither was there any one claiming the premises adversely to him. In June, 1886, the probate judge made application to the United States land-office for a patent to the town-site, in trust for the occupants, according to their respective interest, and the final entry was made and recorded in the office of the register of deeds of Seward county in 1887. The court below found "that the plaintiff never was and never became, prior to the application and final entry of the town-site for a United States patent, an actual resident on the town-site of Springfield, Seward county, Kan., or any part thereof; and that the plaintiff did not contribute to the making of final proof on the town-site; " and sustained the demurrer of the defendant to the evidence, and rendered judgment against the plaintiff for costs. The plaintiff in error brings the case here. The contest, in this case, arises out of rival claims to a lot in a town-site, upon government land, and the trial court seemed to have sustained the demurrer to the evidence, upon the ground that occupancy and residence were both prerequisite conditions to obtain title under the provisions of sections 2387, 2388, and 2389 of the Revised Statutes of the United States, and chapter 109 of the Compiled Laws of 1885. The language of section 2387 of the Revised Statutes is: "Whenever any portion of the public lands have been or may be settled upon and occupied as a town-site, not subject to entry under the agricultural pre-emption laws, it is lawful, in case such town be incorporated, for the corporate authorities thereof, and, if not incorporated, for the judge for the county court for the county in which such town is situated, to enter at the proper land-office, and at the minimum price, the land so settled and occupied, in trust for the several use and benefit of the occupants thereof, according to their respective interests." The supreme court of Minnesota has construed this section of the Revised Statutes: "The language of the pre-emption act of 1841 is essentially different from that of the municipal pre-emption act of 1844. The former is limited as to the age of the person entitled to its benefits; as to his nativity; requires the party to make settlement ‘in person,’ and to ‘inhabit and improve the same,’ and ‘erect a dwelling thereon; ’ prohibits him from leaving his own land to make settlement on the government land; and also from owning 320 acres at the time of making his pre-emption. On all of these points the act of 1844...