Faull v. Cooke

26 P. 662, 19 Or. 455, 1890 Ore. LEXIS 65

• Court: Oregon Supreme Court
• Decided: July 1, 1890
• Status: Published

Opinion

Strahan, J.,

delivered the opinion of the court.

A proper disposition of this case requires that we should notice the sources of title set up by the respective claimants, and in doing so it will be most convenient to first examine the defendant’s title. In the year 1869 the lands through which Connor creek flows, and which are described in the defendant’s answer, were unsurveyed and unoccupied public lands of the United States. During that year one Christian Hinckler settled upon the same as a homestead, and after the said land had been surveyed, on the sixth day of March, 1883, he made his regular application therefor, alleging his settlement thereon in February or March, 1869. On this application a patent was duly issued by the United States to said Hinckler, dated the thirteenth day of March, 1885. After Hinckler had pérfected his right to said land under the homestead laws of the United States, he died intestate in Baker county, Oregon, and John Geiser was duly appointed his administrator. Thereafter such, proceedings were had in the county court of Baker county, Oregon, in the administration of said estate, that an order was duly made by said court, by virtue of which order the said real estate was sold by said administrator to the defendant Cooke for the sum of $1,550. This sale was duly confirmed by said court, and on the fifth day of July, 1887, said administrator executed and delivered to the defendant Cooke a deed to said premises, together with all the water rights and privileges, ditches and ditch rights, and all and singular the improvements, tenements, hereditaments and appurtenances.

The evidence tends to show that as early as 1872 Hinck-ler, commencing on his homestead and near the line, cut a ditch extending nearly the entire length of his claim, by means of which he diverted the waters of Connor creek for the purposes of irrigating his land for agricultural and horticultural purposes, and that this claim is bounded on one side for almost its entire length by Snake river, and that Connor creek flows almost directly across the defendant’s land and empties into said river on said premises, so that there are no riparian owners below the defendant on said creek. In 1874 Hinckler dug another ditch by which he diverted a portion of the waters of Connor creek, commencing a short distance above his land, by which means he conveyed the water to his land and for a long distance through the same, and then, again leaving his land, the water was conveyed to a placer mining claim, where the same was used for some time for mining. After the mine was worked out, the water flowing in this ditch was also used by the said Hinckler for irrigating his land. Hinck-ler’s ditches are numbered respectively one and two. Hitch numbered three taps Connor creek above number two and conveys water to the land of Hill, mentioned in the pleadings. This is an old ditch, but was dug after the ditches numbered one and two, and was repaired and used by Hill some three or four years ago. The ditch marked number four on the plat taps Connor creek a long distance above number three, and is known as the Tarter & Huffman ditch, and was used for awhile to convey water to a placer mine in Douglass «gulch. It was also constructed after Hinckler had settled upon his homestead and had diverted the water from Connor creek in both ditches numbered one and two. Whatever right, title or interest Hinckler had in the land described at the time of his death passed to the defendant by virtue of the deed made by the administrator of truckler. It is therefore necessary to determine what rights Hinckler acquired in said land by virtue of his homestead settlement and subsequent compliance with the act of congress granting homesteads to actual settlers upon the public lands of the United States, and the issuance to him of a patent therefor by the United States.

Under the third section of the act of congress of March 14, 1880, chap. 89 (21 stat. 141), it is provided that “any settler who has settled or who shall hereafter settle on any of the public lands of the United States, whether surveyed or unsurveyed, with the intention of claiming the same under the homestead laws, shall be allowed the same time to file his homestead application and perfect his original entry in the United States land-office as is now allowed to settlers under the preemption laws to put their claims on record, and his right shall relate back to the date of settlement, the same as if he settled under the preemption laws. ”

In Larsen v. The O. R. & N. Co., decided at the present term, it was held, in effect, that a settlement made by a homestead claimant upon the public lands of the United States and compliance with act of congress on the subject, segregated the same from the public lands and cut off intervening claims, and such is the ruling of the land department of the United States.

Since the announcement of the opinion in Larsen v. The O. R. & N. Co., supra, this case was argued, and our attention has been called to the recent opinion of the supreme court of the United States in Steers v. Beck, 10 Fed. R. 350.

The opinion of the court in that case is very exhaustive, and fully and conclusively settles the legal question under consideration adversely to the appellant. In tbat case tbe identical question, in principal, involved here was presented, and it was beld tbat a homestead claimant’s riparian rights attached from the date of his settlement, provided he complied with the law and obtained a patent for the land, and that when such patent was issued it related to the date of settlement and cut off the right to divert a stream of water running through such homestead. But the plaintiff claims to have the superior right to this water, and he seeks to prove title to the same in two ways: first, through an ex-sheriff’s deed offered in evidence purporting to convey certain ditches and water rights of Hinckler to A. J. Lawrence; and, second, by prior appropriation and adverse possession of the water for more than ten years.

(2) These claims will therefore be examined. The deed of ex-Sheriff Boyd, of Baker county, is dated the twenty-fourth day of April, 1877. The deed recites that the execution upon which the sale was made was tested the thirtieth of May, 1866, on a judgment rendered the same day by the circuit court of the State of Oregon for Baker county in favor of Louis Pfieffenberger & Co. and against Christain Hinckler. The date of the levy is not recited in the deed, but it is recited that the sale was made on the seventeenth day of September, 1874, more than eight years after the date of the execution. The amount of judgment is not mentioned, but the deed recites that the sum of $300 was realized upon the sale, and it is stated that the sale was confirmed on the thirteenth day of October, 1875. After reciting the sale of the two ditches running through Hinckler’s homestead, before referred to in this opinion and numbered one and two, the deed undertakes to convey the same to A. J. Lawrence. The respondent takes several objections to this deed; one is, that no judgment was offered in evidence, and therefore it is not shown that the execution recited in the deed was legally issued. An execution, regular upon its face, emanating from a court of competent jurisdiction, will protect an officer who obeys it; but tbe rule is different when a purchaser claims under an execution sale. In such case it is well settled that a person seeking to recover property, and basing his claim upon an execution sale, must prove the judgment upon which the writ issued. 2 Freeman on Ex., § 350; McRae v. Daviner, 8 Or. 63.

(3) It is next objected that the execution at the time of the sale was dead in the hands of the ex-sheriff; that the official life of the sheriff had terminated, and that the writ by lapse of time had ceased to be of any validity for any purpose whatever. This objection must also prevail. By section 278, Hill’s Code, an execution is returnable within sixty days after its receipt by the sheriff to the clerk’s office from whence it issued; and by section 293 this time may be enlarged thirty days by the consent of •the plaintiff endorsed upon the writ. In this case it does not appear that the officer had made a levy under the execution while it was still in force. The sole question, therefore, is whether or not a sheriff may hold an execution until long after the return day and until his term of office has expired and then make a levy and sale. No authority was cited upon the argument to uphold such a proceeding, and I think none can be found. On the contrary, such a writ is functus officio and confers no authority whatever, and any attempted levy and sale by virtue of it are nullities. Freeman on Ex. §§ 58, 106; Lehr v. Rogers, 3; Smedes & Marsh, 468; Kane v. Preston, 24 Miss. 133; Dale v. Metcalf, 9 Penn. St. 108; Cash v. Tozier, 1 Watts & S. 519.

(4) Another difficulty presents itself. The two ditches dug by Hinckler, and which are claimed to have been sold by virtue of this execution, were dug mainly through his homestead. One was used exclusively to irrigate his land, and the other also after a small placer mine had been worked out. Without the use of this water upon the land it would be of but little value and could probably never have been occupied as a homestead or for any agricultural or horticultural purpose. I think, therefore, that we must treat the ditches and the water in them flowing over this homestead and used for the purpose of irrigating it as a part of the land itself and not severable therefrom. In such case the homestead is exempt from liability for debts contracted prior to the issuing of the patent. Clark v. Bayley, 5 Or. 343.

(5) Finally, it is objected that an ex-sheriff has no power in this State to make a deed to property sold on execution. This question appears to have been considered by this court in Moore v. The Willamette T. & L. Co., 7 Or. 359, in which the conclusion was reached that the sheriff in office at the time the certificate is produced and the deed demanded, is the proper officer to make the deed, and not the one who made the sale and whose term of office has expired. The plaintiff does not use or seek to use either one of the Hinckler ditches described in this ex-sheriff’s deed, and so far as I can see the. only object of its introduction was to extinguish Hinckler’s right to the water flowing in his ditches and to transfer the title to the water as severed and separated from the land to the plaintiff by mesne conveyances from Lawrence. In other words, it is claimed that by this deed Lawrence acquired this right to the water and that he or his successors in interest might lawfully divert it into other ditches and take it for their own use and benefit, and that Hinckler’s right to the water, whether as riparian owner or first appropriator, thus become vested in Lawrence and his successors in interest. If there were no valid objection to the deed, and the land and water where it flowed had been subject to levy and sale, I doubt very much whether the results claimed by the appellant would have followed. What Lawrence claimed to have acquired by that sale were the ditches across Hinckler’s land and the water in them. I do not see how it gave him any right to the water before it entered the ditches or conferred upon him the right to go higher up the stream and there dig ditches of his own and take the water out at another and different place. But it is unnecessary to decide this question for the reasons already indicated.

(6) The remaining question is whether or not the plaintiff and those under whom he claims had acquired a title to this water by adverse user prior to the commencement of this suit? Did the plaintiff and those under whom he claims have such open, exclusive, notorious and continuous adverse use of this water as to bar the rights of the defendant either as riparian owner or first appropriator of it? On this subject I have carefully read all of the plaintiff’s evidence two or three times, to ascertain the real foundation of his claim, and it all rests on the ex-sheriff’s deed to Lawrence. One Davis claims to have been in possession of the water in Hinckler’s ditches as Lawrence’s tenant and he delivered possession to Tarter & Huffman, from whom the plaintiff seeks to deraign title; but the possession was never exclusive and it was not continuous. HinGkler, as long as he lived, firmly asserted his right to this water against all claimants, and maintained it with so much firmness that he lost his life in a difficulty with Davis growing out of the disputed claims to the water now in controversy. Giving full effect to the evidence on each side, and it appears that for several years no one had the exclusive use of the water; sometimes one was using it and then another, but the possession of none of the claimants was continuous or of such a character as to constitute adverse possession against the others. It was intimated on the argument by the appellant’s counsel that the water in controversy ought equitably to be divided between the parties; but I am unable to find in the evidence anything whatever upon which a division might properly be made.

Finding no error in the decree of the court below, it must be affirmed.