Russell v. Hacking
| Decision Date | 19 November 1934 |
| Docket Number | 5331 |
| Citation | 85 Utah 1,37 P.2d 1105 |
| Court | Utah Supreme Court |
| Parties | RUSSELL v. HACKING et al |
Appeal from District Court, Third District, Tooele County; O. W McConkie, Judge.
Suit by Authenia Russell against Wayne Hacking and another. From the judgment, the plaintiff appeals.
AFFIRMED.
A. A Duncan, of Salt Lake City, for appellant.
Homer Holmgren, of Salt Lake City, for respondents.
This is a controversy over a right to possession of 640 acres of land described as section 1, township 5 south, range 4 west, Salt Lake meridian. The plaintiff and defendant Wayne Hacking each claim priority of possession as prospective entrants under the Stockraising Homestead Law. The defendant Ault makes no claim to the land, and he will not be referred to hereafter. The subject-matter of the case is unsurveyed and uninclosed mountainous grazing land located in Tooele county, Utah. The trial court made findings favorable to the defendant, and entered a decree that, as against the plaintiff, defendant is entitled to the sole and exclusive possession, use, and occupancy of the land; that defendant's homestead claim is superior and prior to any claim by plaintiff; and enjoined plaintiff from entering on the land or interfering with defendant's occupancy.
Plaintiff appeals and assigns as error that the findings of fact are not supported by, but are contrary to, the evidence, that the conclusions of law and decree are not supported by the evidence or the findings of fact, and are against law, and that there is no pleading to support the affirmative judgment in favor of defendant.
The first claimant to the land was Alvin Russell, a brother of plaintiff, who, before the filing of the complaint in this cause, had abandoned his claim. He, in the fall of 1925, marked the boundaries of the section by placing a monument at each corner and posted notices that he claimed it under the Stockraising Homestead Act. He first had a tent on the tract and later built a cabin thereon. Whether he established and continued his residence thereon with the intention of making it his home was a fact affirmed by plaintiff and denied by defendant. The court made finding that "at no time did he or his family live upon said land as a home to the exclusion of a home elsewhere." Alvin Russell's possession is relied on by plaintiff as effecting a segregation of the land from the public domain, thereby making defendant's attempted settlement invalid when initiated. Hacking, on July 25, 1928, went on the land, placed monuments on each corner, posted notices that he claimed the section as a homestead under the Stockraising Homestead Act, and commenced the erection of a cabin. He remained about three weeks, and completed his cabin up to the square, when he sustained an accidental injury to his foot and had to leave in order to have the foot cared for. At the time he went on the place he had information that Alvin Russell claimed it as a homestead, but Alvin was not then on the land, and Hacking did not see him until August 21st, when Alvin and his father came to the section and notified Hacking to get off the land or they would obtain a court order. The accident to Hacking occurred the next day. A restraining order was on August 23, 1928, issued by the district court of Tooele county in the case of Alvin Russell v. Wayne Hacking, which order was served on Hacking at Provo, Utah. By this order Hacking was restrained from entering upon the land in section 1, building a cabin, or in any way interfering with Alvin's use and enjoyment thereof, until the further order of court. The case was never tried, and the restraining order remained in effect until the case was dismissed October 13, 1931. In June, 1930, Alvin sold his cabin on section 1 to his brother Authenia, the plaintiff in this action, and left the state with his family in the fall of 1930. Alvin is not now asserting any claim whatever to the land in dispute.
The plaintiff on or about June 19, 1931, went on the land, marked the corners, posted notices of his homestead claim, and took up his residence in the cabin he had purchased from his brother. He, at the time, had information of Hacking's claim and of the existence of the restraining order in the case of Alvin Russell v. Hacking. Upon learning of Alvin's abandonment of the claim and removal from the state, Hacking on July 10, 1931, went on the land with a herd of sheep. He had been there three days when he was served with a restraining order issued by the district court of Tooele county in the instant case.
The following facts are not in dispute: That Alvin abandoned all claim to the land either in June of 1930, when he sold his cabin, or in the fall of 1930, when he left the state; that Alvin sold only the personal property on the land and made no attempt to sell or transfer any possessory or property right in or to the homestead; that Hacking was prevented from completing his cabin or living on the land by orders of court; and that his intrusion on the premises was effected without force or violence, and was not accompanied by destruction of any property. The land was unsurveyed at the time, and therefore not subject to entry under the laws of Congress, but open only for the institution of possessory rights by qualified prospective homestead entrants.
There is some evidence in the record from which it may be inferred that at some time prior to the trial the land had been surveyed by the government but the record fails to disclose that either of the parties to this action has made any filing or entry of the tract in the land office.
The question before us is not whether plaintiff or defendant shall be awarded title to the land, a matter exclusively within the jurisdiction of the land department of the government, but merely to decide which of the parties is entitled to remain on the tract and enjoy the possession thereof. The crucial point in the case is whether Hacking's attempted initiation of the homestead settlement was such that upon abandonment of Alvin Russell's claim he was entitled to priority over Authenia Russell's subsequent settlement, and therefore entitled to possession as against him. Plaintiff contends that Hacking was a mere trespasser because of Alvin's occupancy, and could not by his trespass initiate any valid claim. In support of this contention, plaintiff cites Atherton v. Fowler, 96 U.S. 513, 24 L.Ed. 732. In that case it was held that no right of pre-emption can be established by settlement and improvement on a tract of public land where the claimant forcibly entered upon the possession of one who had already settled upon, improved, and inclosed the tract; that such intrusion was an unlawful trespass which cannot initiate a right of preemption. The Supreme Court of the United States in the subsequent case of Belk v. Meagher, 104 U.S. 279, at page 287, 26 L.Ed. 735, referring to the Atherton Case, said:
Plaintiff also cites Switzler v. Earnheart, 59 Ore. 344, 117 P. 296; Earnhart v. Switzler, 231 U.S. 766, 34 S.Ct. 327, 58 L.Ed. 472, wherein the defendant obtained possession by fraudulent agreement with plaintiff's lessee and thereafter held possession by force.
Defendant contends that Alvin's occupation was not such a compliance with the law as to exclude the tract from occupation by another, and, if it be held that Alvin initiated a valid settlement, yet when he failed to continue to reside thereon that this avoided his settlement so that an intervening settlement would take priority, and that when he abandoned all claim to the land his claim became void abinitio so far as the defendant's claim is concerned.
It is well settled that no right of possession can be acquired against another already in possession where the claimant forcibly or by stealth intruded upon the possession of one who had already settled upon, inclosed, and improved the tract; such intrusion being a mere trespass. Atherton v. Fowler, supra; Switzler v. Earnheart, supra; Hambleton v. Duhain, 71 Cal. 136, 11 P 865; and Denee v. Ankeny, 246 U.S. 208, 38 S.Ct. 226, 62 L.Ed. 669. But the adjudicated cases and land department decisions recognize a right in bona fide contestants to initiate a lawful claim to unappropriated public land by peaceable adverse settlement thereon and to continue to reside thereon and make improvements pending an adjudication by the land department as to which of the contestants has the superior right where such settlement is effected without violence or fraud or destruction of improvements placed on the land by others. Belk v. Meagher, supra; Moss v. Dowman, 176 U.S. 413, 20 S.Ct. 429, 44 L.Ed. 526; Thallmann v. Thomas (C. C. A.) 111 F. 277; Nevada Sierra Oil Co. v. Home Oil Co. 98 F. 673; Peckham v. Faught, 2 Okla. 173, 37 P. 1085; Morrow v. Warner Valley Stock Co., 56 Ore. 312, 101 P. 171; Noble v. Roberts,...
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