State v. Salisberry

The opinion of the court was delivered by Horton, C. J.: This was a criminal action in the court below against A. J. Salisberry, under § 1 of chapter 113, Gen. Stat. of 1889, ¶ 7157, being the act to prevent trespasses, in which he was charged with having cut and carried away 14 acres of rye, to which he had no right or interest, the same being the property of Jasper Cresswell. The defendant was convicted at the September term, 1891, and this appeal is brought to reverse the judgment. The facts are substantially as follows: During 1879, Salisberry placed a preemption filing upon the land from which he cut the rye, and continued to occupy the same thereunder until the 5th day of August, 1882, at which time he relinquished to the United States his interest therein, under the preemption filing, but on the same day he placed a homestead filing thereon. At the time of the homestead entry, the defendant was qualified to homestead [164] land under the laws of the United States. Under his homestead filing, he immediately took possession of the land, and was continuously in the exclusive possession thereof until the 31st day of January, 1891. After the 5th day of August, 1882, Jasper Cresswell filed a contest upon the land. On the 31st day of January, 1891, the secretary of the interior decided the contest in favor of Cresswell. During the season of 1890, while defendant was in the actual possession of the land, under his homestead filing, contesting and litigating with Cresswell, and endeavoring to perfect his title, he sowed the rye, and when it ripened, in the month of June, 1891, in the absence and without the consent of Cresswell, he cut and carried the rye away. Cresswell, with the consent of Salisberry, had taken actual and exclusive possession of the land and crop in March, 1891. It was decided in Freeman v. McLennan, 26 Kas. 151, that crops sowed on land by a stranger to the title, and without authority and consent of the owner, belonged to the owner of the soil. The right or title Salisberry claimed at the time he sowed the rye was subsequently decided against him. After this decision, and in March, 1891, Salisberry relinquished the possession of the land to Cresswell, and Cresswell took peaceable possession thereof. At the time that Salisberry cut and carried away the rye, it is conceded that the land on which it was grown was not his own, and that he had no interest or right therein. We do not think he had any right or interest in the rye grown on the land after Cresswell took possession thereof, in March. The decision in the contest established that Salisberry was never entitled to the land; his alleged title was no title; therefore, under the provisions of ¶ 7157, he was properly convicted. (The State v. Armell, 8 Kas. 288; The State v. Blakesley, 39 id. 152; Haag v. Cooley, 33 id. 390.) It cannot be claimed upon the facts agreed to that Salisberry was a tenant or lessee, or had any rightful possession from Cresswell. The case of Rathbone v. Boyd, 30 Kas. 485, is not analogous. In that case, the party making the entry [165] not only sowed the crop, but remained in possession of the land until the crop was actually harvested, and after it was harvested his mortgagee sacked and took possession of it. If, in this case, Salisberry had continued in possession of the land after the rye had been cut and harvested, the Rathbone ease would apply. The judgment of the district court will be affirmed. All the Justices concurring.