Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1901-07-28
Opinion by Belknap, ].

Action to quiet title brought under
the provisions of Section ESQ OF the
Practice Act, (Sec. 1851 Com. Laws).
1t appears from the statement on mo-
ton for new trial that plaintiffs pre-
decesSOT i'll interest settled upon twenty
acres of the land described in the COM
plant in the year 1862. 1t was then
unsurveyed, public land. He after
wards fenced it, and cleared off a por-
ton of it. After his death his heirs
transferred it to plaintiff, who has been
in possession of it ever since. He has
not connected himself with the title
of the United States or of the State of
Nevada, and claims to hold by posses
sion and occupancy only.
In the year 1893 one David A. Baird
made application to the proper officer
to purchase the land from the State
of Nevada, and upon June 18th of the
same year made the first payment Of
ten dollars thereon Thereafter, and
upon final payment, patent issued to
Baird from who defendant deraigns
title The land was listed to the State
under the Act OF Congress approved
June I6, 1880, granting two millions OF
acres OF land from the inappropriate
non-mineral public lands in the State
in lieu of the 10th and goth sections
Findings OF fact in conformity with
the above statement were made.
AS conclusions OF law the court de
cided that at the date of Baird's appli-
cation for purchase, plaintiff and his
grantorS had appropriated the land, ant
that its selecting and listing were with
out authority of law and void, and judg
ment was accordingly entered in favor
of the plaintiff. The question is whe
Their the conclusion OF law is correc
that the land had been appropriated.
The term appropriation as used II
the presumption laws was defined b.
the Supreme Court OF Illinois in til,
case OF Mcconnell V. Wilcox, 1 Scam
31A That was an ejectment against al
officer OF the United States command
ing military post. Plaintiff 5 lesso
claimed a pre-emption under the pro
visions of the Act of Congress, approx
ed June 10, 1884, a Stats. at Large
67S). That Act revived a pre-emptio
law passed May 80, 1880, authorizin
settlers or occupants to enter certal
quantity OF land subject to the restric
ton that no entry or sale of any Ian
shall be made under the provisions c
the act, which shall have been reserve
for the use of the United States, o
either of the several States, or whic
is reserved from sale by Act OF Cor
gress, or by order OF the President, c
which may have been appropriated to
any purpose whatsoever. a Stats. :
Large, 42o). Defendant upon his pa
insisted that the land had been apprt
priated for military purposes. In il
opinion the court say: 1--WE take it Il
granted, that there can be neither
public domain, for any purpose wha
ever, without the express authority
the law" And later, ut is in our judi
ment, entirely useless to discuss II
precise meaning of the term 'appr'
priated' in its general and extends
sense; because its meaning and app
cation in the manner it has been us'
in the presumption law, cannot, v
think. admit of a doubt. 1t meal
nothing more, in the sense in which
is used than an application Of the Ian
to some specific use or purpose, by vi
tue of law and not by any other Pc
err"
The case went to the Supreme Cot
of the United States. The judgme
of the Illinois Court was reversed u
on the ground that certain Acts
Congress, which that Court consider
obsolete and inapplicable, were deter
ined by the Supreme Court to be pei
nent and controlling. In its opini
the court said:
1--WE now return to the inquiry wi
Their the land in question falls witt
any of the prohibitions contained in
Act of Congress. Amongst othe
lands, which may have been appropri
ed for any purpose whatsoever, are
empt from liability to the right of P