Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-15
Switzler V. Earnheart, Umatilla
County.

tltion is denied.
Swltzler V. Earnheart, Umatilla
County.
John B. Switzler, respondent, V. F.
E. Earnheart, appellant. Appeal
from the circuit court for Umatilla
county. The Hon. G. W. Philips,
Judge Submitted on briefs May 8,
1911. Fee & Slater, for respondent.
D. w. Bailey and j. B. Perry, for ap-
pellant Mcbride, ]. Affirmed.
This is suit to restrain defendant
from interfering with plaintiffs pos
session of certain lands situated upon
Beavert Island in the Columbia river.
The island in question is unsurveyed
government land, and has been occu-
pied for several years by different
persons. In the year 1895 it was in
the possession of NJ. D. Beavert, who
improved it by planting a garden and
putting several acres into alfalfa,
and constructing comfortable four
room dwelling house. In 1896 he
sold his rights to plaintiff who en-
tered upon the land, built a fence so
as to enclose, together with the nat
ural enclosure made by the water.
about so acres, and cultivated it
principally in alfalfa At the time of
the alleged trespasses by defendant
the land produced about $500 worth
of hay. He had house, stables, cor
raj and garden. The house was fur
nished with beds, marble top furni-
| ture and was comfortable resi-
dence. The improvements exceeded
$1,000 in value.
About January, 1908, plaintiff
leased the place to John D. Halter
for a period of five years, but subse-
quently the term was reduced to one
year, and at the expiration of the
year the term was extended for three
months, expiring March 81, 1909 at
which date Halter was to surrender
the premises to plaintiff. The defen-
dant had taken homestead contain
ing about 142 acres Immediately ad-
Joining that arm of the Columbia riv-
er which separates Beavert Island
from the main land, and subsequently
commuted it, after residence of
IA months, receiving his final certifi-
cate from the government He was
residing upon this land Immediately
preceding the alleged trespass COM
planned Of.
In March, 1909, defendant moved
his family upon the Beavert Island
and located in a tent near plaintiff
dwelling house By agreement with
Halter he purchased Hatter's hay
COWS, and chickens, and Halter va
Gated the premises, leaving defendant
in possession. Defendant thereupor
took possession of the house, threat
ening to shoot plaintiff if he attempt
ed to enter, and entirely excluded
him therefrom. Plaintiff harvested
his hay crop, and thereafter brought
this suit. There was a decree in his
} favor in the circuit and defendant ap'
peals.
Mcbride, ]. The land actually oc
cupied and cultivated by plaintiff
comprises about so acres, and is un
surveyed government land separated
from the land of defendant by nav
igable slough or arm of the Columbit
river. and there is nothing in defen
} dant's contention that his line eX
tended beyond this slough so as tt
include any portion of the land occu
pied by plaintiff
: Defendants boundary EXTENDED
only to high water mark of tn
stream, separating Beavert ISLAM
from the mainland: Oregon V. Port
land General Electric Co. 50 Or. 5Oz
Neither was he entitled to take tn
land as an additional homestead Th
right to enter land as an additiona
, homestead cannot be exercised upol
, unsurveyed land. In addition to thi
fact the land must be contiguous t
} the land already occupied by the in
= tending entryman. The land in con
troversy was separated from defen
| dant's homestead by a meandere
: navigable arm of the Columbia rive
J and was no more contiguous to
5 than if it had been situated on tn
: opposite side of the main river.
= 1t is contended that plaintiff wa
: the owner of more than 16O acres @
= land, and, therefore, not capable G
= initiating a homestead. He testifie
2 that he bought. settled upon and i'm
f proved the land. with view of ac
f ouiring title by prescription or home
: stead, or any other way when it cam
S into market. Whether he will b
. qualified at that time is matter be
= tween him and the government, an
= in no way concerns this defendan
e who does not show himself qualifie
at this time to make this settlemen
e The evidence shows that defer
= dant obtained possession by a frar
n dulent agreement between himse
:, and plaintiffs tenant, and thereafte
e held possession by force and threat
e He entered unlawfully, knowing thf
!. plaintiff claimed the land. Plainti
: was in possession by his tenan
. claiming the land against everybod
but the United States, and defendar
was a mere trespasser. And the la