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

which may defeat his title.
And the reasoning of the court a
all cases seems to forbid the invasion
of the actual possession of another,
whether such invasion is accom-
plished by the use of force or not.
Counsel for the defendant argue
that the plaintiffs did not reside upon
this land and therefore, did not have
the actual possession which the law
contemplates, and also that the land
was not entirely enclosed by a sub
stantial fence, because the upper
part was bounded by a bluff. All Of
these contentious, it seem to me, are
untenable.
Where there is subsection TO the
will and dominion of the claimant in
some appropriate manner, residence
upon the property is not essential.
(Barstow VS.. Newman, "a Cal. 81;
Goodrich VS.. Van Landrigham, 46
Cal, col; Weber VS.. Clarke, IA Cal,
15.)
In Pierce VS.. Stewart, As Cal. 2S0,
ii was held that the plaintiff could
recover in ejectment against a party
who established neither title nor
right of entry, Notwithstanding the
fact that he had not resided upon the
land, but had simply used it as a
pasture for his cattle.
In Kelly VS.. Mack, 40 Cal, 524,
the court decided that one who has
public land enclosed, and has a shed
on it, and cuts hay on it, but does
not reside on it has possession.
The facts in that case are sub
stantially identical with those in this
case, because in the case nov be-
fore the court the plaintiffs not only
enclosed the land with a fence, and
had a shed on it and cut hay on it,
but in addition thereto they per-
formed and exercised other acts Of
ownership.
And a fact that a portion of the
land is bounded by a bluff cannot de-
feat the plaintiffs right to recover in
this case. A party occupying land
has a right to use a bluff or natural
barrier as a part of the enclosure,
and the fact that he has not enclosed
the land is immaterial.
1t is settled law that a fence and
natural barrier may constitute a suf-
fiient enclosure to give actual pos
session of land, Goodwin VS.. Nc
Cabe. rs Cal. 5SS; Bullock vs..
Rouse, 81 Cal. SO; and cases cited. }
In Southmayd VS.. Henley, As Cal.
1O1. the court held that where one
has built a fence of any kind around
land, which together with natural
barriers is sufficient to turn cattle
that would be sufficient.
In Mcfarland VS.. Culberston, 2
New. 2S2, the supreme court of this
state says:
IF there can be an occupation
within boundaries so clearly marked
and defined as to notify strangers
that the land is taken up OF located
that Is all the possession which thC
courts of this state have ever deemed
necessary or required"
| This language was quoted with ap
prevail in the latter case of Eureka
NJ. Co. VS.. Way, IL New, 1T, ant
| the court there added:
= THAT a bluff Of rocks may form
a natural barrier is u~ndoubtedl!
correct. The law does not require
a vain and useless thing to be done
and there would be no sense in a Law
which required the erection of
fence over a bluff of rocks so steel
and rocky that neither man nor beas
, could travel owe it. Lex o cogi
ad impossibilia."
Counsel for defendant also la.
: considerable stress upon the fac
that the plaintiffs have not compile,
with the provisions of sections 3S1'
ct seq. of the compiled laws of thi
. state. This statute simply provide
= a summary remedy for recoverin
. possession of unsurveyed lands q
the United States which have no
been enclosed. An examination Q
these sections will show that they ar
not exclusive and do not apply t
cases where the lands have been Ell
closed. In discussing a statute sim
liar to this, the supreme court c
California, in CoryeIl VS.. Cain, /
Cal, says, at page 57S of tn
opinion: 49,
II And with the public lands, whic
10 are not mineral lands, title as b.
+ tween citizens of the state, wheI
sr neither connects himself with tn
2 government, is considered as veste
le in the first possessor, and to procee
n from him. This possession must |
IS natural and not constructive and til
u right it confers must be distinguish
-