Switzler v. Earnheart

117 P. 296, 59 Or. 344, 1911 Ore. LEXIS 148

• Court: Oregon Supreme Court
• Decided: July 5, 1911
• Status: Published

Opinion

Mr. Justice McBride

delivered the opinion of the court.

1. The land actually occupied and cultivated by plaintiff comprises about 80 acres, and is unsurveyed government land, separated from the land of defendant by a navigable slough or arm of the Columbia Eiver, and there is nothing in defendant’s contention that his line extended beyond this slough so as to include any portion of the land occupied by plaintiff.

Defendant’s boundary extended only to ordinary high-water mark of the stream, separating Beavert Island from the mainland: Oregon v. Portland General Electric Co., 52 Or. 502 (95 Pac. 722: 98 Pac. 160).

2. Neither was he entitled to take the land as an additional homestead. The right to enter land as an additional homestead cannot be exercised upon unsurveyed land. In addition to this fact, the land must be contiguous to the land already occupied by the intending entryman. The land in controversy was separated from defendant’s homestead by a meandered navigable arm of the Columbia Eiver and was no more contiguous to it than if it had been situated on the opposite side of the main river.

3. It is contended that plaintiff was the owner of more than 160 acres of land, and therefore not capable of initiating a homestead. He testifies that he bought, settled upon, and improved the land, with a view of acquiring title by prescription or homestead, or any other way when it came into market. Whether he will be qualified at that time is a matter between him and the government, and in no way concerns this defendant, who does not show himself qualified at this time to make this settlement.

The evidence shows that defendant obtained possession by a fraudulent agreement between himself and plaintiff’s tenant, and thereafter held possession by force and threats. He entered unlawfully, knowing that plaintiff claimed the land. Plaintiff was in possession by his tenant, claiming the land against everybody but the United States, and defendant was a mere trespasser. And the law will respect plaintiff’s possession as against a trespasser. Boe v. Arnold, 54 Or. 52 (102 Pac. 290); Gibson v. Chouteau’s Heirs, 39 Mo. 536; Buxton v. Traver, 130 U. S. 232 (9 Sup. Ct. 509: 32 L. Ed. 920). It is not the policy of the government to encourage forcible entry upon government land in the actual possession of another. Atherton v. Fowler, 96 U. S. 513 (24 L. Ed. 732); Rourke v. McNally, 98 Cal. 291 (33 Pac. 62); Tidwell v. Chiricahua Cattle Co., 5 Ariz. 352 (53 Pac. 192).

4. The nature and extent of plaintiff’s possession of the 80 acres where the house was situated was sufficiently indicated by the improvements made upon it by him. Practically the whole tract had been cleared and seeded to alfalfa. Upon the case made here the United States District Court held that plaintiff was entitled to relief against defendant, and, while that decree was reversed by the Circuit Court of Appeals (179 Fed. 832: 105 C. C. A. 260) upon the ground of lack of jurisdiction in the United States courts to entertain suits of this character, the judgment of the learned district judge, as to the law of the case, in other respects, is not without weight with us. To allow defendant to enter without a shadow of right and dispossess plaintiff from his house and cultivated fields, would be an injustice which we cannot sanction.

The decree is affirmed.

Affirmed: Rehearing Denied.