Jay v. Granby Mining Co.

15 Kan. 171

• Court: Supreme Court of Kansas
• Decided: July 15, 1875
• Status: Published

Opinion

The opinion of the court was delivered by

Brewer, J.:

The only question presented in this case is, whether plaintiff in error was entitled to the benefit of the occupying-claimant law. The facts are these: On November 7th 1870, a patent issued to the Mo. R., Fort Scott & Gulf Rid. Co. for the land in question. . Title passed from the company to defendant in error, first by bond to convey, and then, in September 1873, by deed. One Glover Pickerell settled on the land in 1869, and built a house thereon the same season. In April 1872, plaintiff in error purchased from Pickerell, took a quitclaim deed therefor, and had it duly recorded. There is no evidence as to the condition of the title prior to the patent to the railroad company, and nothing to show that Pickerell was other than a naked trespasser. Counsel in the brief say that the fair presumption is, that the “ title was yet in the United States, unless it yet remained in the Cherokee Tribe of Indians, the original owners of the lands known as the Cherokee Neutral Lands, of which said premises was a part.” It may be that this is a part of those lands, but the evidence fails to show it. All we can gather from the evidence is the description, by section, township, and range, and that it lies in Cherokee county. The patent is not recited, so its recitals avail nothing. (Ephraim v. Garlick, 10 Kas. 280.) Counsel claim that Jay is within both the first and fifth classes .of those entitled under the amendment of 1873 to the benefit of the oceupying-claimant law. (Laws of 1873, p. 203, § 1.) The first class includes all who “ can show a plain and connected title, in law or equity, derived from the records of some public office.” Counsels’ claim cannot be sustained under this clause. A quitclaim deed from a trespasser, can by no ingenuity of construction be called “a plain and connected title, in law, or equity.” It means, a title connected with the legal and unquestioned title by a succession of conveyances, apparently regular and legal, but really passing no title. The case of Krause v. Means, 12 Kas. 335, is a good illustration. Neither does he come within the fifth class. That includes those who have made settlements upon Indian lands, or Indian trust lands. But the testimony, as we have seen, is lacking upon this point.

The ruling of the district court was therefore correct, and the judgment must be affirmed.

All the Justices concurring.