Mountain Democrat., 1857-05-16

above Statute am 10 bound to treat il,
as no title has been derived from the
government and no grant exhibited, tn
plaintiff has shown such title only as il
presumed from the occupation of public
lands HeprOved that Jane A. Shurr wae-
in possession in June, 1862, and on the
18th Of that month she quit-clailncd T.
him, or surrendered her possession unac-
companied by claim or colo= of title, anG
that she transmitted to him the only ttlC
as she possessed. These facts according
to Conger ct al VS. Weaver ct al, are suffi
cient to show license from the govern
ment to occupy her lands, and that the
occupant will not be treated as trespas-
ser, and for the reasons so well stated H..
that case that ''tiIe government has not
only looked on quietly while these appro-
priations were being made, but has studi-
ously encouraged them in some instances
and recognized them in ALL" The right
or license is acquired not by any deed or
grant, technically speaking, but merely
by entry upon unappropriated domain,
and using or applying it to the private
ion of the party takes the place Of title
deeds, and is the evidence of his owner
ship or license.
Now, as these rights are acquired by
appropriation and occupation merely, it
follows -concluSivelY, that they may be
lost or surrendered by ccasing to uppro-
pirate or occupy. No one will cOntrovcrt
the proposition that if A. to-day enters
upon piece Of unapprOpriatcd public
land and improves it to any extent, he
may next year, or at any time he chooses,
surrender it back to the government, by
ceasing TO occupy it with the intention Of
disseminating his appropriation or Owner-
ship, or, in short, by abandoning it. 1t
then becomes public property again, with
all the improvements that hove been put
there, and, under the general license from
the government, any one may again ap-
prOpriatc 1t with the improvements in the
same manner. If these things can be
done, and that they can, think no one
will doubt, what is to prevent a. or any
subsequent occupant Of the premises from
surrendcring TO B. for consideration, and
that, too, verbally and without deed D.?
Why may he not say to b., will aban-
don my possession and right to possession,
if you will pay me for SO doing, under
such circumstances as to allow you to be-
como the first occupant after l leave? 1t
is true, under such an arrangement, b.
title might not date further back than A. s
surrender to him. The distinction be-
tween such transaction and technical
conveyance such us is embraced and re-
(crrcd to by our Statute of frauds, is this ;
that in q deed Of bargain and sale, the
deed itself operates as transfer Of the
title and of the possession. The grantor
in the deed docs not abandon his title or
possession, but continues to assert title up
to the moment Of the complete execution
and delivery of tho deed, at which time
it passes to the grantee, thereby connect
ing new party with it, who traces it
back through his deeds to the fountain
head. But where there is mere sur
render or abandonment of possession,
(Which is the occupants deed, or rather
substitute for q decd there -is=no= title
transmitted or passed, but one lost merely
by act Of the occupant, and an original
one gained by the party to whom no sur.
rendered. ---
Now let us see whether this case comes
within the rule | have laid down. Plain.
tiff was in possession and made verbal
sale to Hunter, for $500, and delivered to
him tho possession. Hunter afterwards
paid $500 of the purchase money and then
decided to the defendant James, as trustee
for Wells, Fargo & Co. There is dis
pute as to whether the three hundred dol
lars was paid; and think it is inmate
rial. so far as this case is concerned,
whcthcthcr it was or not. There were
no conditions in the sale-nothing from
which it could be inferred that Stevens
was to retain the title until the money
was paid. Had the agreement been re-
duced to writing in the form of decd, it
would have operated as an unconditional
conveyance for six hundred dollars, to be
paid thereafter by Hunter The title
would have passed whether Hunter had
ever paid the money or not, and the most
the plaintiff could have done, would have
been to arrest vendors lien for the pur-
chase money. Ireter to these things, not
for the purpose of making them the pred
icate of an argument in support of a parol
argument for the sale Of lands; for am
well aware that the Supreme Court has
held, in Abel vs. Cold & Wood, that such
an argument is void under our statutes Of
frauds, but for the purpose simply of ar
irving at the intention of tho parties, and
showing that it was plaintiff's(objcct to
surrender his possession to Hunter, in
consideration of the promise of the latter
to pay him six hundred dollars. This
view of the transaction is still farther
strengthened by the fact. that from the
time he sold to Hunter, until the latter
sold to Wells. Fargo G Co, he stood by
and allowed Hunter to arrest title to the
lot, pay taxes on il, have 1t assessed in
his own name. and place improvements
on it to the value Of 5000 or 1000 dollars,
without ever claiming it as his own or
prelcnding to question the validity of the
transfer. Under these circumstances, the
plaintiff should be deemed to have sur
rendered or abandoned his interest in the
lot which was one Of possession alone for
the consideration agreed to be paid, and
that Hunter became the first pOssessor
thereafter. Under this view Of the trans.
action, it is not obnoxious to the statute
Of frauds, and does not touch upon the
decision Of the Supreme Court In the case
of Abel Va. Cold 4 Wood.
But It is saidthat inasmuch as the deed
from Jane A. Shurr to plaintiff was on
record at the time Of defendant purchase
from Hunter, they took with notice Of
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