Stewart v. Harry

• Decision Date: 18 November 1895
• Docket Number: No. 366,366
• Citation: 40 L.Ed. 290,159 U.S. 643,16 S.Ct. 117
• Parties: STEWART v. McHARRY
• Court: U.S. Supreme Court

159 U.S. 643

16 S.Ct. 117

40 L.Ed. 290

STEWART

v McHARRY.

No. 366.

November 18, 1895.

Defendant claimed title to the land in suit as 'an adjoining farm homestead' abutting on a tract of 60 acres conveyed to him by his wife, which was part of 175 acres belonging to her former deceased husband, which had been set apart to her and her minor children as a homestead. This land had never been set apart to her absolutely, but there was no evidence to show that it might not be given to her as part of the one-half interest to which she was entitled, by Code Civ. Proc. Cal. § 1468, in the lands of her deceased husband.

E. W. McGraw and Theodore Wagner, for plaintiff in error.

Charles E. Wilson and W. S. Wells for defendant in error.

Mr. Justice FIELD delivered the opinion of the court.

This case comes before us on error to the supreme court of California. The action was ejectment, commenced in July, 1891, to recover possession of certain parcels of land situated in the county of Contra Costa, in that state.

The plaintiff in the court below, defendant in error here, alleges in his complaint that on the 26th of February of that year he was the owner in fee and entitled to the possession of certain parcels of land, described as lots Nos. 2 and 3 of section No. 22, and lot No. 1, and the N. E. 1/4 of the N. E. 1/4 of section No. 27, in township No. 2 N., of range No. 3 W., Mt. Diablo base and meridian, according to the official survey of the government of the United States.

That while he was such owner, and thus seised and entitled to the possession of the premises, the defendant, on the day mentioned, without right or title, entered upon the premises and ejected him therefrom, and ever since has withheld, and still unlawfully withholds, the possession thereof, to the damage of plaintiff of $1,000.

That the value of the rents, issues, and profits of the premises from the entry stated, and while the plaintiff has been excluded therefrom, is $50.

The plaintiff therefore prays judgment against the defendant for the possession of the premises and the recovery of the sum of $1,000 for withholding the same, and the sum of $50 for the value of its rents and profits, and for such other and further relief as to the court may seem meet and proper.

The defendant in his amended answer denies generally and specifically each of its allegations, except that he is and has been in the possession of the premises, which he admits, and claims that he is the owner thereof and entitled to their possession. And he denies that the plaintiff, by reason of the defendant's possession, has been damaged in the sum of $1,000, or in any other sum.

And in his answer, treated as a cross complaint, the defendant makes certain allegations as to the acquisition and possession of other property, upon which he asserts a right to enter the tract in controversy as an adjoining farm homestead; averring that on the 2d day of October, 1882, he became the owner and went into the actual possession of a tract of land situate in the county of Contra Costa, being a portion of the land which was awarded to one James McClellan, under partition of a certain rancho entitled 'Pinole Rancho,' in which he was interested, as it was surveyed and patented by the United States, and which portion Getta Stewart, his wife, acquired from him.

That the portion thus acquired, a tract of land containing about 60 acres, was on October 2, 1882, conveyed to the cross complainant by deed executed and acknowledged by her. And he alleges that in the month of March, 1876, he went into actual possession of certain public lands of the United States situate in the county of Contra Costa, embracing a portion of the property for which this action is brought, containing, according to the public surveys, 70 acres and 25/100 of an acre, and that he has from that date remained in the actual possession thereof, and used and cultivated the same, and that the public lands adjoin the land conveyed to him by Getta Stewart, and were reserved from settlement under the United States laws, on account of unsettled Spanish and Mexican land grants, until the 16th of April, 1883, when the boundaries of the Rancho El Sobrante, of which they were a part, were finally settled.

That on the 10th day of December, 1883, the survey of the public lands was approved by the United States surveyor general of California and the map of the township was filed in the United States land office of California.

That the cross complainant in the month of March, 1876, and on the 16th day of April, 1883, and since those periods and on the 10th day of December, 1883, and thereafter, resided upon the land acquired by him from Getta Stewart.

That on the 10th of December, 1883, and since the month of March, 1876, he was the head of a family, and was then of the age of 49 years, and was at the dates mentioned a naturalized citizen of the United States, and was on the 2d day of October, 1882, and thereafter, on the 10th day of December, 1883, and since, the owner of and in the actual and peaceable possession of the land conveyed to him by Getta Stewart.

That on December 10, 1883, he appeared in person at the United States land office at San Francisco, state of California, and applied to the register to enter as an adjoining farm homestead, under the provisions of sections 2289 and 2290 of the Revised Statutes of the United States, the public land above referred to as in his possession. The sections of the Revised Statutes referred to are as follows:

'Sec. 2289. Every person who is the head of a family, or who has arrived at the age of twenty-one years, and is a citizen of the United States, or who has filed his declaration of intention to become such, as required by the naturalization laws, shall be entitled to enter one quarter section or a less quantity of unappropriated public lands, upon which such person may have filed a pre-emption claim, or which may, at the time the application is made, be subject to pre-emption at one dollar and twenty-five cents per acre; or eighty acres or less of such unappropriated lands, at two dollars and fifty cents per acre, to be located in a body, in conformity to the legal subdivisions of the...