Tonopah bonanza. [volume] (Butler City [i.e. Butler], Nev.) 1901-1909, 1907-08-24

sess by force the weak and the timid
from actual improvements on the
public land, in order that the inten-
tional trespasses may secure by these
means the preferred right to buy the
land of the government when it
comes into the market"
The court then discussed the his
tory of the legislation relating to the
possession of public lands and speaks
of the scenes of violence, fraud and
oppression and the combinations
which attended the sales of public
lands, and the wrongs perpetrated
under them prior to the enactment of
the presumption laws, and the ex-
press purpose of obviating and cur
ing this condition of affairs. AT first,
however, the presumption laws were
only applicable to lands which had
been surveyed, but gradually these
laws were so changed until 1862
when prescriptions were allowed, I'M
der proper restrictions, upon unsur-
veyed, as well as on surveyed lands.
1t will be observed, however, that the
presumption laws have been repealed
by congress, (Act March 3, 1891, Oh.
SCI, Sec. A., and surveyed lands
only can be entered for agricultural
or grazing purposes. And further
expatiating upon the question of in
truding into the possession of an
other, the court, at page 519 of the
opinion says:
Does the policy of the law auth
orize a stranger to thrust men out
of their houses, seize their improve
ments, and settled exactly where
they are settled, and by these acts
acquire initiatory right of pre-emp-
ton? The generosity by which con
gress gave the settler the right of
presumption was not intended to give
him the benefit of another mans la
Dor, and authorize him to turn that
home. 1t does not propose to give
it's bounty to settlements obtained by
violence at the expense of others. The
right to make a settlement was to be
exercised on unsettled land; to make
improvements on unimproved land;
and it would have shocked the moral
sense of the men who passed these
laws, if they had supposed that they
had extended an invitation to the
pioneer population to acquire in
choate rights to the public lands by
~trespass, by violence, by robbery, by
acts leading to homicides, and other
crimes of less moral turpitude."
This case has not been followed
and approved in all the subsequent
decisions of the Supreme court Of
the United States upon this question
and the foregoing language has beer
frequently quoted with approval.
1t is perfectly obvious from these
expressions of the courts that the
, policy of the law forbids the acquire
ing of a right to enter part of thu
: public lands by intruding into tn,
/ possessions of another, or by oustinl
a person who has settled upon
: part of the public domain and en-
, closed the same with a fence.
The only justification attempted
by the defendant, of his entry, is tina
e he intended to make application. a
the proper time, to acquire the Ian,
. as a homestead. This is the yer,
essence of the thing which the court
say cannot be done.
> Nor can the fact that the defend
: ant entered through a portion of tn
Il plaintiffs fence which had falle'
u down avail him or make his entr
: less tortious. The defendant test
{ fed that he entered into possessio
of the premises in controvers
: through an opening in the fence. TIL
; evidence does not show whether tn
opening was caused by part of tn
fence falling down, or whether it wa
! broken down by the defendant. Blu.
be that as it may, the entry of tn
, defendant through the opening i
the fence vas without the consent {
the plaintiffs and therefore a trei
Z pass, and this gave him no create
e right than he would have had, If h
= had broken down the fence and ei
tered in that way.
Il This identical question was il
: volved in the case of Rourke VS.. NJ,
Nally, SO Cal, POI, and the court
disposing of it says:
O. "She made her entry through a
- opening in plaintiffs fence, not mao
IN by her, but by some unknown pc
,s son. She broke no fence and h,
ID entry was without force or violenc
n Her entry, however. was without Il
knowledge or consent of the plai
a tiff, and against his will, and he h
a ever since kept her out of possessio
" q "Since she entered upon Il
is actual possession of another, 1t is
a no moment that her entry was peac