Carter v. Ruddy

after making the above statement, delivered the opinion of the court.

The first question arises on the plaintiff’s claim of a legal title by virtue of a location of Sioux half-breed scrip. It appears that under the act of Congress a certificate, No. 430, Letter C, for 80 acres, was issued to Walter Bourke. This certificate, which was marked u not transferable or assignable,” was dated November 24, 1856. On June 5, 1886, it was presented by W. R. Wallace at the local land office at Coeur d’Alene, accompanied by an irrevocable power of attorney to him executed by Walter Bourke and his wife, on February 27, 1883, and was locáted upon 80 acres, within which was thp property in dispute. When the location papers' were transmitted to the General Land Office at. Washington it was discovered that Bourke had on October 26, 1870, applied to the department for a duplicate certificate, on a representation that the original had been lost or destroyed; that such application had been sustained and a duplicate certificate issued; that on March 9, 1880, he had located such duplicate on land in Dakota, and received a patent thwefor. Upon the dis

Now, the contention of plain tiff is that the location of this scrip operated to transfer the legal title to Bourke, by deed from whom the plaintiff claimed; that no patent was necessary, and that whatever of wrong Bourke may have committed, the legal title was in him and could only be divested by a suit in equity brought by the United States. This scrip is of the same character as that which was before this court in Felix v. Patrick, 145 U. S. 317 . "While it is true that the act of 1854 does not in terms provide for the issue of a patent, and simply authorizes the location of the scrip upon any public lands, jmt the general rule is that a patent is necessary for the transfer of the legal title to public lands. In Bagnell v. Broderick, 13 Pet. 436 , 450, it was said: “ Congress has the sole power to declare the dignity and effect of titles emanating from the United States; and the whole legislation of the Federal, government, in reference to- the public lands, declares the patent the superior and conclusive evidence of legal title; until its issuance the fee is in the Government ; by the patent, it passes to the grantee, and he is entitled to recover the possession in ejectment.” See also Wilcox v. Jackson, 13 Pet. 498 , 516; Langdon v. Sherwood, 124 U. S. 74 , 83, in which it was said: “It has been repeatedly decided by this court, that such certificates of the officers of the land department do not convey the legal title of the land to the holder of the certificate, but that they only evidence an equitable title, which may afterwards be perfected by the issue of a patent, and that in- the courts of the United States such certificates are not sufficient to authorize a recovery in an action of ejectment.” Hussman v. Durham, 165 U. S. 144 .

It is true there are exceptions to this rule. One is specially provided by statute, Rev. Stat. § 2449, which makes a certification to a State equivalent to a patent as a conveyance of title. Again, as said in Wilcox v. Jackson (supra), “ One class of cases to be excepted is, where an act of Congress grants land, as is sometimes done in words.-of present grant.” This

It is well settled that an action of ejectment cannot be maintained in the courts of the United States , on a merely equitable title. See in addition to Langdon v. Sherwood (supra); Johnson v. Christian, 128 U. S. 374 , 382, and cases cited.

With reference to the power of the Commissioner of the General Land Office to cancel an erroneous certificate of location issued by local land officers see Cornelius v. Kessel, 128 U. S. 456 ; Knight v. U. S. Land Association, . 142 U. S. 161 , 177; Orchard v. Alexander, 157 U. S. 372 . It is, however, unnecessary to enter into any inquiry as to the power of the land department to issue duplicate in lieu of original scrip alleged to have been lost or destroyed, or even as to the regularity of the proceedings by which this certificate of location was cancelled. It is enough that there is nothing to exempt this case from the ordinary rule that a patent is necessary to convey the legal title; that the certificate of location created at best but an equitable title, and that such a title is not sufficient to sustain an action of ejectment in the Federal courts.

We pass, therefore, to the other question which arises on the contention of the plaintiff that he was in peaceable possession, holding under a claim of title, when the defendants, forcibly dispossessed him, and that such prior possession under claim of title is sufficient to sustain thfé action against mere intruders. To an understanding of this question some further facts must be stated. In May, 1886, and before the certificate of location, one Trask, a surveyor, surveyed this tract of 80 acres and laid it off into lots and blocks. This was done at the instance of Wallace, who held the scrip and power of attorney from Bourke, and who was proposing to establish the town of Wallace. On this plat block 22 was laid off into 24 lots, 12 facing north and 12 south, with an alley between them. On July 31, 1886, Bourke, by his at

At the time of the certificate of location and of the deed the 80-acre tract was covered with a dense growth of timber, and plaintiff, who put up a saw mill near by, proceeded, under contract with Wallace, to cut down the trees and convert them into lumber at his mill. In this way block 22 was substantially cleared of standing timber.. Prior to February 19,1889, plaintiff had built two houses on the north half of the block. These houses were on lots not in controversy in this action. There was no fencing around the block, or any part of it. Some board sidewalk had been placed by plaintiff in front of some of the lots and on one side of the block, but it was claimed by defendants that this was done in order to accommodate the travel passing between the depot and a hotel belonging to the plaintiff some little distance from the lots in controversy. There was a conflict in the testimony as to the condition of the block other than the lots upon which the houses were built, the defendants’ testimony tending to show that it was covered over with stumps, fallen timber and brush. In May, 1888, proceedings were taken before the county commissioners of Shoshone County for the incorporation of the town of Wallace. On February 19, 1889, there was a general taking possession of vacant lots, done apparently with a view to the acquiring of title under the town site acts of Congress;. and among other lots these in controversy were taken possession of and fenced by the several defendants. There was

We pass, therefore, to consider the charge of the court and the instructions asked and refused. The plaintiff insists that he entered into possession by virtue of the deed of July 31, 1886; that his actual possession of two lots by virtue of the erection of houses thereon must be taken as constructive possession of the entire block, there being at the time no pretence of any adverse possession, and that, therefore, he was entitled to a peremptory instruction directing a verdict in his favor. He cites in support of the extent of his possession Clarke v. Courtney, 5 Pet. 319 , 354, in which this court said : “ Where a person enters into land under a deed or title, his possession is construed to be coextensive with his deed or title; and, although the deed or title may turn out to be defective or void, yet the true owner will be deemed disseized to the extent of the boundaries of such deed or title.”

The court declined to give such peremptory instruction, but charged as follows:

“ It is the law that where a party holds a tract of land as a separate and distinct tract and as one tract under a claim of title as the boundaries of the tract are so designated, described and marked that they may be known, his possession, either by himself or tenants, of a part of the tract operates as possession of all. ■

“ If in this case you find that this half block was held by plaintiff as one tract or parcel of. land, and that it was so marked out and designated in any way that defendants could know its location and plaintiff had possession of any part of it, such possession extended to and gave him possession of the entire tract; but if, on the contrary, it was cut up into separate and distinct lots and so marked upon the ground and was held

and treated as distinct tracts, then he must show the -possession of all thereof.”

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“ 11th. The next question is, what are the acts of ownership and possession to which your attention must be directed ? As acts of ownership and possession the plaintiff claims he entered upon the premises in good faith in pursuance of his deed; that he thereupon proceeded to clear the land of its timber and to prepare it for occupation; that he put sidewalks- along the sides of a portion of it; that he put them there as the owner of the ground for its convenient use and to improve and enhance its value; that as such owner and claimant he caused water to be conducted to some part of the premises ; that he paid taxes on the premises, and that he has always, since purchasing the ground, claimed to own it, and has openly and publicly exercised control over it.

“ If these assertions of plaintiff are true, and these acts were done by him or by his agents, you are instructed that they constituted in him such a possessory title to the premises in dispute as the Government will protect as against any •other person claiming by a similar or subsequent possessory title.

“ 12th. On the contrary the defendants claim that the plaintiff’s entry on the land was not in good faith to hold- it; that his object was to cut therefrom for milling purposes the timber thereon; that he did not clear the land; that the sidewalks were not constructed for the benefit of the property, or ■because plaintiff owned it, but to benefit and add to the convenient use of other property he owned and business he was ■operating in that vicinity; that the water he had conducted there was not to benefit the premises, but was a part of the town system of water works, and that the plaintiff had, through himself or his agents, ceased to exercise control over the property, and that on the 19th day of February, 1889, it was vacant unoccupied lands of the United States, and that on such day they peaceably entered the premises.

“ If you find the claim of the defendants to be true then their entry and possession was lawful.”

“ Said half block being 300 feet long in an east and west, and 100 feet wide in a north and south direction (except two separate lots, pieces or parcels of land described on the plat of said town as lots twelve (12) and twenty (20) in said block twenty-two (22), each of said lots being 25 feet wide and 100 feet long).”

In respect to which the Court of Appeals, in its opinion, well said:

“It may be observed that plaintiff alleged that the lots which he claims to have been in possession of tenants were ‘two separate lots, pieces and parcels of land’ from the land sued for. Can their possession, therefore, be the possession of land from which they were ‘ separate ’ ? ”

We do not think it could have been properly held as matter of law that the plaintiff was in constructive possession of this entire half block, and the rule of law in respect to such constructive possession was in the charge we have quoted correctly stated. In this respect, it may not be inappropriate to notice two sections of' the 'territorial statutes, 4040 and 4556, Idaho Rev. Stat. 1887, the first of which, referring to property held for five years under a claim of title founded upon a written instrument, declares that the property so included in such instrument is deemed to have been adversely held, “ except that, when it consists of a tract divided into lots, the possession of one lot is not deemed a possession of any other lot of the same tract ”; and the second provides that in an

As to the circumstances to-be considered in determining the question of possession other than the instrument under which the title is claimed, we think the court, in paragraphs 11 and 12, heretofore quoted, stated the law in such a way as to give the plaintiff no ground of objection, and as upon these instructions the jury found the facts adversely to the plaintiff we must accept that finding as conclusive. We see no error in th¿ record, and the judgment of the Court of Appeal is

Affirmed.