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

or title was acquired by the county
under the delinquent tax sale pro-
c~eedings. The evidence further
shows that the plaintiffs repaired the
fences at different times since they
entered into possession and irrigated
small portions of the land, and pas
tured cattle thereon, and also cut
hay upon the land,
The defendant contends that the
plaintiffs cannot recover in this ac-
tion. firstly. because they have not
continuously occupied the premises
and have not had that actual physi-
cal possessio pedis.'' And, secondly,
because they have failed to comply
with the requirements Of section
31S14 ct seq. of the compiled laws
of the state of Nevada,
That the plaintiffs must show an
actual, bona fde possession to enable
them to recover in ejectment, where
possession alone is relied upon, is a
rule too we'll settled to require
augmentation or citation of author
tiles. Indeed, that possession, when
that alone is relied upon, must be
actual and complete, is an express
sion sterotyped in all cases where
this question is discussed and each
succeeding case only serves to
strengthen and illustrate the rule.
Possession is, in itself, prima
facie evidence of title, but it must
be an actual, bona fide occupation
and pedis possessio and subsection to
the will and control, as contra-dis-
tinguished from the mere assertion
of title and the exercise of casual
acts of ownership. (Robinson VS.
Imperial s. M. Co., 5 New, 44-51.)
Actual possession of the land is
the purpose to enjoy, united with or
manifested by such visable acts, i'm
provements or enclosures as will give
to the locator the absolute and ex-
elusive enjoyment of it. (Stainin-
ger VS.. Andrews, A New. 59-6S.)
BY actual possession is meant a
subsection to the will and dominion
of the claimant, and is actually evil
denced by occupation, by a substan-
tial enclosure or by appropriate use,
according to the particular locality
and quality of the property. (Cor-
yell VS.. Cain, 16 Cal. 573; Weber
VS.. Clarke, "A Cal. 49,
The courts have, by an unbrokeu
line of decisions, declared that land
enclosed by another cannot be en-
tered either as a premption or as 9
homestead. (McBrown VS.. Morris, SIS
Cal. ga; McBrown VS.. Wilson, So
Cal. 31S; McBrown VS.. Emerson, IS
Cal. 319; Hambleton VS.. Duhain, Il
Cal. 140; Goodwin VS.. McCabe, III
Cal. 377; Rourke VS.. McNally, 8:
Cal. 292, and Mcguire VS.. Brown
loo Cal. 600 =
The laws of the United States d.
not authorize entry upon publi'
lands in the actual possession of an
: other for the purpose of making
settlement, although made by on,
qualified to purchase from the gov
eminent, or to acquire a homestead
and made with intent to acquire it'll
in some lawful mode. (Rourke VS.
= McNally, 80 Cal. 291.) This cas-
was cited with approval by the su
preme court of this state in Brow
= VS.. Killabrew, 81 New. 439.
The supreme court of the Unite
States has, over and owe agar
stated in unmistakable language tina
a settlement cannot be made upo
q public land already occupied an
that a party cannot initiate a RICH
to public land by intrusion upon tn
actual possession of another. CATH
Is erton VS.. Fowler, SO u. S. 513
q Homer VS.. Wallace, 81 U. s., $50
"a Quinby VS.. Conlan, 104, U. S. 369
Doolan VS.. Carr, 125 U. S. GAL.
After stating the above rule |
lie Trenouth VS.. San Francisco; 100 |
lt S. 251, the court concludes il
N opinion in the following language:
le And the mere assertion of a pc
y session thus obtained has as lit
n merit as the lawless and unjustifiab.
:. conduct of the intruders in seizir
the property"
In Atherton VS.. Fowler, SO U. S
513, and which, by the way, is IL
leading federal cas- upon the que
ton, the same court held that l
ut right of presumption can be esta
lished by a settlement and improv
ment on a tract Of public land whe
n the claimant forcibly intrudes upC
the possession of another who h
as settled upon, improved and enclos'
n the tract. Such intrusion, thoul
made under the pretense of pr
ng empting the land, is but a make
as unlawful trespass, and cannot ini
ate a right of presumption.
q And as if to place the seal of
up disapproval upon the attempt of