King v. Great Northern Ry. Co.

• Decision Date: 02 December 1911
• Citation: 119 P. 709,20 Idaho 687
• Parties: RACHEAL KING, Respondent, v. GREAT NORTHERN RAILWAY CO., a Corporation, Appellant
• Court: Idaho Supreme Court

119 P. 709

20 Idaho 687

RACHEAL KING, Respondent, v. GREAT NORTHERN RAILWAY CO., a Corporation, Appellant

Supreme Court of Idaho

December 2, 1911

PUBLIC LANDS-UNCANCELED HOMESTEAD ENTRY-PRIMA FACIE VALID-LAND SEGREGATED FROM PUBLIC DOMAIN-CONTEST-CANCELING ENTRY-RIGHTS OF CONTESTANT-PREFERENCE RIGHT TO ENTRY-DESTRUCTION BY FIRE OF GROWING TIMBER - DAMAGES - RIGHT TO MAINTAIN ACTION FOR-REAL OWNER.

(Syllabus by the court.)

1. Where C. made a homestead entry on certain land in 1902, and erected a cabin thereon, and on February 15, 1906, K. entered upon said land and took possession of said cabin with the intention of contesting C.'s entry and entering said land as a homestead, and thereafter in May, 1906, filed a contest in the United States land office, and in July, 1906, a large amount of the timber standing on said land was destroyed by a fire alleged to have been negligently set by the railway company, and thereafter on the 18th day of December, 1907 said contest was decided in K.'s favor, and on January 14, 1908, K. entered said land as a homestead, held, that as K. had not made her homestead entry prior to the date of the destruction of said timber by fire, she was not the owner of said timber and could not maintain an action to recover the value of the timber so destroyed.

2. So long as C.'s entry remained uncanceled, the land included therein was segregated from the public domain and precluded K. from acquiring an inceptive right thereto by virtue of her residence on said land.

3. Sec 2297, Rev. Stat. of the U.S. , prescribes the procedure for the cancellation of a homestead entry where the entryman has failed to comply with the law, and in case a contest is instituted against a homestead entry and is successfully prosecuted, upon the cancellation of such entry the land so entered reverts to the government with a preference right to the contestee to enter the same as a homestead under the rules and regulations of the department, after the cancellation of the contested entry.

4. As K.'s homestead entry was made on the 14th of January 1908, upon the issuance of the patent the right of K., under the doctrine of relation, only relates back to the date of her entry and not to the date when the contest was begun.

5. Held, under the facts of this case that K. had no such right or interest in the land and the timber growing thereon at the date such timber was destroyed by fire as to entitle her to maintain this action.

APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. Robt. N. Dunn, Judge.

Action to recover for the alleged negligent destruction of standing timber by fire. Judgment for the plaintiff. Reversed.

Reversed and remanded with instructions. Costs of this appeal awarded to the appellant.

H. H. Taylor, for Appellant.

The right to institute the action for damages in such a case is vested by the law in the real owner of the property, and not in the one who without color of right is in possession thereof. (Mathews v. Great Northern Ry. Co., 7 N.D. 81, 72 N.W. 1085; Northern P. Ry. Co. v. Lewis, 162 U.S. 366, 16 S.Ct. 831, 40 L.Ed. 1002; Missouri P. Ry. Co. v. Cullers, 81 Tex. 382, 17 S.W. 19, 13 L. R. A. 542.)

Her possession was that of a mere naked trespasser and would not raise any presumption of ownership. (Shiver v. United States, 159 U.S. 491, 16 S.Ct. 54, 40 L.Ed. 231; Conway v. United States, 95 F. 615, 37 C. C. A. 200; United States v. Ball, 31 F. 667, 12 Saw. 514.)

Entries of record, prima facie valid, appropriate the lands covered thereby, and while they remain uncanceled the land is not subject to further entry (Witherspoon v. Duncan, 4 Wall. (U. S.) 210, 18 L.Ed. 339; Hodges v. Colcord, 193 U.S. 192, 24 S.Ct. 433, 48 L.Ed. 677; Carroll v. Safford, 44 U. S. (3 How.) 441, 11 L.Ed. 671) until the original entry be canceled or declared forfeited, in which case the land reverts to the government as part of the public domain, and becomes again subject to entry under the land laws. (Hastings & Dakota Ry. Co. v. Whitney, 132 U.S. 357, 10 S.Ct. 112, 33 L.Ed. 363; Kansas P. Ry. Co. v. Dunmeyer, 113 U.S. 629, 5 S.Ct. 566, 28 L.Ed. 1122; Whitney v. Taylor, 158 U.S. 85, 15 S.Ct. 796, 39 L.Ed. 906; N. P. Ry. Co. v. Sanders, 166 U.S. 620, 17 S.Ct. 671, 41 L.Ed. 1139; McMichael v. Murphy, 197 U.S. 304, 25 S.Ct. 460, 49 L.Ed. 766.)

So long as Campbell's entry remained uncanceled of record, it segregated the tract of land from the mass of the public domain and precluded Racheal King from acquiring an inceptive right thereto by virtue of her alleged settlement. ( McMichael v. Murphy, supra; Ex parte Eva Brown, 3 L. D. 150; Gourley v. Countryman, 18 Okla. 220, 90 P. 427; Holt v. Classen, 19 Okla. 131, 91 P. 866.)

The whole theory of her case has been an injury to the land and to the fee, and the introduction of evidence as to her settlement and intention are entirely immaterial and incompetent. (Mo. P. Ry. Co. v. Cullers, supra; Knoth v. Barclay, 8 Colo. 300, 6 P. 924; Colo. Con. L. & W. Co. v. Morris, 1 Colo. App. 401, 29 P. 302.)

B. S. Bennett, and Peter Johnson, for Respondent.

In contemplation of law, the land is restored to the public domain as soon as the abandonment takes place. (Street v. Delta Min. Co. (Mont.), 112 P. 701; Love v. Flahfive, 205 U.S. 196, 27 S.Ct. 486, 51 L.Ed. 768.)

Respondent's rights to said lands, after the contest was decided in her favor, would by operation of law date back to the time when she first took possession thereof on February 15, 1906, between three and four months before the fire occurred.

Even a squatter upon the public lands of the United States has such a possession as would entitle him to sue a railroad company for damaging the property or the improvements thereon. (2 Jaggard on Torts, 669; Witt v. St. Paul & N. P. Ry. Co., 38 Minn. 123, 35 N.W. 862; Fort Worth & N. O. Ry. Co. v. Smith (Tex. Civ. App.), 25 S.W. 1032; Galveston H. & S. A. Ry. Co. v. Rheimer (Tex. Civ. App.), 25 S.W. 971; P. Express Co. v. Dunn, 81 Tex. 85, 16 S.W. 792.)

Mere possession without title, but under claim of right, is sufficient to sustain the action. (Anthony v. Railroad Co., 162 Mass. 60, 37 N.E. 780; Marks v. Sullivan, 8 Utah 406, 32 P. 668, 20 L. R. A. 590; McFeters v. Pierson, 15 Colo. 201, 22 Am. St. 388, 24 P. 1076; Martin v. Pittman, 3 Colo. App. 220, 32 P. 840; Stahl v. Grover, 80 Wis. 650, 50 N.W. 589; Rogers v. Duhart, 97 Cal. 500, 32 P. 570; Barbarick v. Anderson, 45 Mo.App. 270; Gulf, C. & S. F. Ry. Co. v. Johnson, 54 F. 474, 4 C. C. A. 447; McClellan v. St. Paul M. & M. Ry. Co., 58 Minn. 104, 59 N.W. 978.)

SULLIVAN, J. Stewart, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This action was brought by the plaintiff, who is respondent here, against the Great Northern Railway Co., a corporation, to obtain damages for the alleged negligent destruction by fire of certain standing timber growing on the northeast quarter of section 30, township 59 N., range 1 west of Boise meridian, in Bonner county, and was tried upon a second amended complaint, which will be referred to as the complaint.

To said complaint a demurrer was interposed on the ground that the complaint did not state facts sufficient to constitute a cause of action, and was overruled by the court. All of the allegations of the complaint were denied except the allegations of the incorporation of the defendant railroad company and its compliance with the laws of Idaho in regard to foreign corporations.

Upon the issues thus made the cause was tried by the court with a jury and verdict and judgment given and entered in favor of the plaintiff for the sum of $ 5,000 and costs of suit. A motion for a new trial was denied and this appeal is from the judgment and from the order denying the new trial.

The overruling of the general demurrer to the complaint is the first error assigned.

It is alleged in the complaint, among other things, that at the time the plaintiff took possession of the land described therein, to wit, February 15, 1906, "the same had been previously filed upon by one Charles A. Campbell on December 2d, 1902," as a homestead; that plaintiff had resided thereon ever since February 15, 1906; that she instituted a contest in the United States land office at Coeur d'Alene on May 28, 1906, against the Campbell entry; that on December 18, 1907, because of her contest, Campbell's homestead entry was canceled, and that on January 14, 1908, plaintiff made homestead entry for said land. The damage by fire is alleged to have occurred on July 24, 1906.

Plaintiff seeks to recover for standing timber which she alleges was burned through the carelessness and negligence of the defendant, and the main question raised on this appeal is whether or not the plaintiff's interest in the land in question and the timber growing thereon was sufficient at the time of its destruction by fire to give her a right to maintain this action, and all of the assignments of error are based upon the contention of defendant that the plaintiff had no right to maintain this action, for the reason that she was not the owner of and had no interest in the land or the timber growing thereon at the time of the destruction of the timber. The plaintiff had not made a homestead entry for said land at the time said timber was destroyed, but had filed a contest against the entry of said Campbell. She prosecuted her contest successfully and said Campbell's entry was canceled by the commissioner of the general land office on December 18, 1907, and thereafter on the 14th of January, 1908, she entered the land as a homestead.

The question, then, is directly presented whether under that state of facts she had such an interest in said land and the timber growing thereon as would give her a right...