The herald., 1894-12-13
SMALL BUT INTRICATE.
What Constitutes Legal Occupation of
Land.

What Constitutes Legal Occupation o.
| Land.
decision was yesterday rendered by
Judge Van Dyke in the case OF l.. A.
Strang vs.. ]. NJ. Mckinney ct al, order
ing findings and judgment for the plain.
tiff for the recovery of the possession oil
the premises in dispute, and for dam.
ages in the sum OF $50, for the reasons
as set forth in the following opinion
rendered:
THE evidence in this case shows that
M. l.. Wicks purchased lands from the
Southern Pacific Railroad company in
1885; cold and assigned his right unde +
said purchase TO G. b. Van Every in Oc-
tober, 1883, and that Van Every went in to
possession OF the lands as soon as he
bought, under claim OF title. and has
paid taxes upon the same. The land in
question is a part of section II, rs N,
K 10 w, S B NJ, ia Los Angeles county.
On September "a. 1892. Van Every
leased the land to the plaintiff for one
year. Plaintiff went into possession of
the land, cultivated and put the whole
into crop. Van Every extended the
lease to plaintiff for a second year, and
the latter continued in possession OF said
land, except the parts from which de-
iendants ousted and elected him: and
was IN possession when the defendants
entered upon portion OF the land
which had been Gown TO crops, erected
cs bins thereon, and claimed the right to
hold the same as being portion OF GOV
eminent land. The claim under the
railroad grant had been declared for
feited.
The plaintiff was in actual possession
OF the land at the time of the entry and
onsted by defendants &C. @. Z. 223,
SD, by actual possession," SAID
Ju tice Field, in Orwell va. Gain
(l6 Gal. 573). "is meant enhiec-
tion to the will and dominion of
the claimant. and is usually evidenced
by ocCupstion-by substantial eu-
closure, by cultivation or d. appronriate
use, according to the particular locality
and quality Of this property" Resi-
denc7 on the property is not necessary,
nor Ia an enclosure when the land has
been cultivated or grszei according 10
the parhculat locality and anat tliy OF
the property. (Webber vg. Clarke. 76
Gal. ll.) O1e VINO was in the prior ac-
iuai podsess,on of public land open to
settlement. under the forfeiture net
OF congress of September %, 1899. may
MAINTAIN ej.ctment against II pereon
who made peacable entry upon ench
aetna. possession, intending to OCCUPY
the land az homestead. but who is not
otherwise connected with the govern.
ment title. (RDurke vs. McNaily, %
Gal. 29l.)
In this case the defendants have not
connected themselves with the govern
msnt title, and the plaintiff being in
actual possession bv cultivation, ee
already ahown, Of the premises, al
though government land, il Quilted to
maintain the action. The suit was
brought before the expiration of his sec.
ond years lease. and. as beI1re stated,
plaintiff continued in possession up to
the time OF the tria, presumably by
consent OF the owner, by lease at will
C- otherwise.
In the case last cited it ia said The
laws OF the United States do not
anthollzs an entry upon the actual
possession OF another for the purpose OF
making settlement, though made BY
one qualified to purchase from the gov.
ernment, or to ACQUIRE homestead.
although such entry is male with the
intent to acquire the title in some law
ful mode" citing Atherton va. Fowler,
(96 U. s., 5l3); Dunwood vs.. Martin
,l20 U. S., 369) and other caoes.
The plaintiff, therefore. is entitled to
recover. The amount of damages was
not very great, inasmuch as it was in
evidence that the crop wes compara-
lively q failure.