Howard v. Perrin, 200 U.S. 71 (1906)
Howard v. Perrin, 200 U.S. 71 (1906)
71
26 S.Ct. 195
50 L.Ed. 374
C. E. HOWARD, Appt.,
v.
E. B. PERRIN.
No. 110.
Submitted December 6, 1905.
Decided January 2, 1906.
The statement of facts discloses a title in the plaintiff (now appellee) sufficient
to sustain the judgment for the recovery of possession, although no patent had
been issued. Deseret Salt Co. v. Tarpey, 142 U. S. 241, 35 L. ed. 999, 12
Sup.Ct.Rep. 158.
The certified copy of the records and papers in the General Land Office was
competent evidence. Rev. Stat. 891, U. S. Comp. Stat. 1901, p. 672. This
section determines the question of competency, but not of materiality. Some of
the letters, between the officials of the railroad company may not have been
material, but there was nothing in them prejudicial. The certificate of the local
land officers was competent to show that on the records of their office were no
homestead, pre-emption, or other valid claims, and that the land had not been
returned or denominated as swamp or mineral land. It is true there was no
positive evidence that there were no minerals in the land, and, of course,
nothing to show affirmatively that a mine might not be discovered prior to the
issue of the patent, but the same could have been said of the showing in Deseret
Salt Co. v. Tarpey, 142 U. S. 241, 35 L. ed. 999, 12 Sup.Ct.Rep. 158. While the
question of mineral was not discussed at that time, and was first fully
considered in Barden v. Northern P. R. Co. 154 U. S. 288, 38 L. ed. 992, 14
Sup.Ct.Rep. 1030, it appears from the opinion of the majority in the latter case
that there was no intention to disturb the former ruling. Neither is there
anything in Corinne Mill, Canal, & Stock Co. v. Johnson, 156 U. S. 574, 39 L.
ed. 537, 15 Sup. Ct. Rep. 409, to the contraty. In that case a judgment of the
supreme court of Utah against a grantee of the railroad company was affirmed,
but it was affirmed on the ground that the record did not purport to contain all
the evidence, and, under those circumstances, we could not assume that there
was not evidence to fully sustain the judgment of the territorial court, or that it
was not in fact based upon an adjudication by the Land Department of the
presence of mineral.
3
It must also be noticed that this land was within the place limits of the Atlantie
& Pacific Company, and that, therefore, on the completion of the road, and
without any selection or approval thereof by the Secretary of the Interior, the
title passed unless the tract was within the excepted classes, and there was no
testimony tending to show that it was. On the contrary, the testimony pointed in
the other direction.
'(2941) Sec. 7. In all cases when the party in possession claims real property by
right of possession only, suits to recover the possession from him shall be
brought in two years after the right of action accrues, and not afterwards, and in
such case the defendant is not required to show title or color of title from and
under the sovereignty of the soil, as provided in the preceding section, as
against the plaintiff who shows no better right.'
But this applies only in cases of mere possessory rights, and is without force
after the passing of the full legal or equitable title from the government. Such
was the construction placed on the statute by the supreme court of Arizona, and
is undoubtedly correct. The language is clear. The claim of the defendant is a
'right of possession only,' and the limitation applies solely against a 'plaintiff
who shows no better right.' To hold that the section gives to a mere occupation
of public land a title by prescription against one subsequently acquired from the
United States would limit the full control of the government over its landed
property, and qualify or destroy the effect of its patent or grant. Toltec Ranch
Co. v. Cook, 191 U. S. 532, 48 L. ed. 291, 24 Sup.Ct.Rep. 166, does not
conflict with this, for there a possession sufficient for the running of the statute
of limitations was held after the full equitable title had passed from the
government; and when such title has passed the land comes under the dominion
of the state, and is subject to its laws. But in this case the possession had not
been long enough to create under the Arizona laws a defense to a title, legal or
equitable; and the sole reliance was upon this section, which only applies to
contests between possessory rights.
7
The remaining question arises under the cross complaint of the appellant, who
claims a prior appropriation of all the water flowing in a subterranean stream
which had been reached by digging a well, relying on these provisions of the
Arizona Revised Statutes of 1887:
'(3199) Sec. 1. All rivers, creeks, and streams of running water in the territory
of Arizona are hereby declared public, and applicable to the purposes of
irrigation and mining, as hereinafter provided.'
'(3201) Sec. 3. All the inhabitants of this territory, who own or possess arable
and irrigable lands, shall have the right to construct public or private acequias,
and obtain the necessary water for the same from any convenient river, creek,
or stream of running water.'
10
11
We see no error in the record, and the judgment of the Supreme Court of
Arizona is affirmed.