Wamble v. Evants

CHAMBERS, Superior Judge. This is an action of forcible entry and detainer, brought by the appellees against the appellant for the possession of 320 acres of unsurveyed desert land in the county of Maricopa. The appellees, plaintiffs in the court below, allege that on the twenty-ninth day of March, 1920, the plaintiff, Ella P. Evants, entered upon that certain unsurveyed, unappropriated public domain which will be, when surveyed, the east half of section 33, township 1 north, range 7 east, of the Gr. & S. B. B. & M.; that ever since said date the plaintiff, Ella F. Evants, has been, and was at the time of filing her complaint, the possessor of, and entitled to the full, peaceable,- and quiet possession of said land; that on or about the thirtieth day of April, 1920, while the plaintiff, was in the quiet and peaceable possession of said tract of larid, defendant forcibly entered [309] thereon and ejected the plaintiff therefrom; that said entry by defendant into and upon said land was without right in law and without and against the consent of the plaintiff, Ella F. Evants, and that defendant has since said last-mentioned date forcibly retained and remained in possession of said premises. Appellant answered by general denial and plea of not guilty. The case was tried to the court without a jury, and judgment rendered in favor of the plaintiffs. The appeal is from the judgment. The evidence shows that the appellee, Ella P. Evants, on March 29, 1920, initiated a desert land entry of the premises in controversy under the act of Congress approved March 28, 1908 (35 Stat. 52 [8 Fed. Stats. Ann., 2d ed., pp. 702, 703; U. S. Comp. Stats., §§ 4681-4683]); that on March 29, 1920, acting through her husband and agent, William E. Evants, she entered upon the land, posted a possessory right notice at each corner thereof, chained it out, and drove 2x4 stakes at each corner of the land. About the 7th or 8th of April following, Mr. Evants returned to the land with a surveyor, cleared along three sides a strip from one to three rods wide in order to run the lines and for reclamation purposes. At this time the lines were again run, and iron stakes were driven at the corners, the appellee expending in clearing, surveying, and posting the notices approximately $300. There does not appear to be any evidence that the plaintiff, or her agent, was actually upon the land more than once from the tenth day of April until May 2d following, when the defendant was found in possession. On April 30th the defendant entered upon the southeast quarter of said section 33, and attempted to initiate a claim for a homestead under the laws of the United States relative to acquiring homestead claims upon unsurveyed land. The defendant himself testified that he observed the clearing and [310] saw the notices of Mrs. Evants posted at each corner. On May 2d he had begun the construction of a house. He denies the right of the appellees to maintain this action, claiming tJiat they were not in the actual possession of the land when he entered thereon and initiated his claim. The appellant makes four assignments of error. It is conceded that the first two assignments raise but one question, which is: Was the appellee, Ella E. Evants, in the actual possession of the premises at the time of the alleged forcible entry? The third assignment is to the effect that the court erred in admitting evidence as to the expense of surveying the land, cutting the brush, staking the corners, and posting the notices. The fourth assignment is to the effect that the court erred in admitting in evidence the appellee’s possessory right notice. The question as to what is actual possession is not entirely new in this jurisdiction. It is discussed at length by this court in Foster v. Black, 20 Ariz. 64, 176 Pac. 845. Actual possession does not necessarily mean actual, physical presence upon the-premises. In cases of this character, where an entryman, or a proposed entryman, under any of the public land laws of the United States, has taken possession of a tract of land, has taken steps,to exercise dominion and control over it, and has not been absent for such a period as would justify a conclusion that he has abandoned the premises, then he is in actual possession. As stated in 19 Cyc. 1130: “Actual pedis possessio or residence on the premises at the time of the forcible entry complained of is not essential to the maintenance of the action. The possession to which this summary remedy applies is not confined to the pedis possessio or actual inclosure of the occupant. . . . The owner is not bound to be continually on his land, either in person or by agent, or to station his servants there to keep intruders [311] away. An entry, coupled with such acts of ownership as clearly indicate his intention to take and hold permanent possession, will be sufficient to enable him to maintain this form of action to repel an unlawful intrusion. ’ ’ Judged by this standard, we are of the opinion, under the facts proved and admitted in this case, that the appellee was in actual possession of the premises, and can therefore maintain the action of forcible entry and detainer. It is unnecessary to consider the third assignment of error, for the reason that, excluding the evidence complained of, there is sufficient evidence in the record to justify the court in finding that the appellee Ella F. Evants was in actual possession. The trial being to the court without a jury, we will presume that the evidence, if incompetent, was ignored by the court. Shannon Copper Co. v. Potter, 13 Ariz. 245, 108 Pac. 486; Nichols v. McClure, ante, p. 27, 201 Pac. 95. Appellant insists that the possessory right notice of appellee should not have been admitted for the reason that in an action of this character the validity of the title is not tried, but merely the right to possession. We consider that the case of Foster v. Black, supra, is also decisive of this question. That case was an action of forcible entry and detainer for the possession of a mining claim. Relative to the admission of the location notice and deeds, the court says: “The recorded notice of location and the deeds of plaintiff were competent evidence to show the extent of the claim and possession of the plaintiff, but not to show title.” Appellant contends that the notice was inadmissible for the further reason that under the laws of the state of Arizona a possessory right claim can contain no more than 160 acres. The notice is not drawn in compliance with paragraph 4718 of the Civil Code of [312] Arizona. If appellee based her claim upon the statutes of this state, then the contention of appellant would be correct. However, she bases her claim upon a statute of the United States, act of Congress approved March 28, 1908 (35 Stat. 52). In the case of Callison v. Ronstadt, 21 Ariz. 348, 188 Pac. 266, we upheld the right of a claimant to hold 320 acres of unsurveyed, unappropriated public land, so as to acquire a three months’ preference right to enter the same under the act of February 19, 1909 [8 Fed. Stats. Ann., 2d ed., pp. 613-617; U. S. Comp. Stats., §§ 4563-4568], and other acts of Congress, as a homestead. We see no substantial difference between that case and this one. Where an entryman has complied with the laws of the United States relative to taking possession of unsurveyed, unappropriated public land, and has performed acts of settlement thereon, then the courts of this state will protect him in his possession the same as though he had initiated his right under the state law. The possessory right notice was admissible. The judgment is affirmed. EOSS, C. J., and FLANIGAN, J., concur. McALISTER, J., having tried the case in the lower-court, was disqualified, and the Hon. W.-E. CHAMBEES, Judge of the superior court of Graham county, was called to sit in his stead.