Tonopah bonanza. [volume] (Butler City [i.e. Butler], Nev.) 1901-1909, 1907-08-24
been actuaI in him on them.,

III otalnlhser VS.. Andrews, 4 Nev
So, the supreme court Of this stat.
has occasion to consider the nossoa
sorry act referred to by counsel o.. !
the defendant, and at page &C. Of tbo
opinion says;
There seems to be but two meth.
DDS in this state of acquiring tit,,
sufficient to maintain ejectment n
public land not surveyed or brougb,
into the market by the genera gov
eminent, and these are; First. nv \
compliance with the requirements ~
IAN act prescribing the mode Of
maintaining and defending posses.
sorry actions for public lands in th,o
state (Stat. 1S64-5, 343); second. nv
actual possession or occupation os
such land. The plaintiff in this AZ.
ton does not pretend to have com.
piled with the requirements of tha
law above referred to, and hence his
title, if he has any rests entirely
upon his possession or appropriation
of the land in controversy. Whether
he has acquired such possession of
the land in controversy. Whether
he has acquired such possession Of
the land at the time the defendant
intruded upon it as to entitle him TO
recover it in this action, is only a
question nov demanding the consid-
GRAFTON of this court"
The court then adopts the Ian.
guage used by the supreme court Of
California in Coryell VS.. Cain above
quoted.
1t will be observed that the DOS.
sessory act referred to in Staininger
VS.. Andrews, supra, has been incor-
porated into and now comprises sec
ton 1914 ct seq. of the compiled
laws of this state. 1t will also be OBJ
served that the possessory act Of
California referred to in Coryell VS..
Cain is essentially the same as that
of this state. A bare reading, there
fore, of the provisions of the posses
sorry act will show that it is not ex-
elusive and was not intended to ap-
ply to all cases. but was simply to
provide a summary remedy for an
interference with the possession Of
public lands claimed by another and
which had not been enclosed or re-
duced to actual possession. This act
was not intended to apply to a case
where a party is in actual possession
of lands and has enclosed the same
with a fence and where a stranger
introduces himself into the posses
sion and Gusts the first possessor.
Because 1t cannot be assumed that
the Legislature ever intended to con-
fer jurisdiction upon Justices courts
in actions for the possession of land,
because under the constitution such
jurisdiction is invested in the district
courts alone. (Const. I'D. To
hold that the possessory act is ex-
elusive and that all cases OF this kind
must be prosecuted in accordance
with its provisions would have the
effect of disorganizing our entire
judicial system, and Of imputing to
the legislature motives clearly not
intended. This, of course, cannot be
done. But assuming, for the sake
of argument. that legislature did in
a fnn1 thaf fhfg aat gbAtalI nnr1N m oil
cases of this kind, wen then, such a
construction would bring the statute
within the constitutional inhibition
and render It void. II is the duty Of
: the court, In constituting Legislature
acts to give them effect, If possible.
= This can only be done by holding
= that the provisions of these sections
are not exclusive. Any other con-
struction would render them not
only invalid, but also incompatible
: with the obvious intention Of the leg
islature.
y 1t Is one of the axioms of the law
that when no better right then pos
session is shown thai he VINO Is nrsl
in point of time is prior In point OF
: right. Drown VS.. Killabrek, 81
New. 437.)
1t follows, therefore, that the de
PENDANTS entry was unlawful; that
he was a mere naked t%respasser
making an unwarranted intrusion
upon the possession Of another; and
that in such a wrongful attempt tt
= seize the fruits of other mems labol
there could be no bona fide claim.
= The plaintiffs are, therefore, en-
titled to the judgment for the pos
session of the lands in controversy
And it is so ordered.
II J. p. O'BRIEN,
District Judge
=