Litchfield v. Johnson

DILLON, Circuit Judge. The amount involved in this particular case is small, but the ease itself is important, as the principles of law which apply to it are decisive of a large number of like causes pending in the court. 1. The referee has found, as a fact, that the defendants, in the fall of I860, entered on the land, the same being then vacant, under the belief that it was the property of the United States, open to pre-emption, with the intent to pre-empt it or enter it under the homestead act, and have ever since continued in possession, holding adversely to all parties except the United States. This finding of fact is sustained by the proofs, and supports the legal conclusion that the improvements were made “in good faith,” within the meaning of the occupying claimant statute of this state. The extent of the Des Moines river grant had, it is well known, been the subject of conflicting decisions on the part of the executive branch of the government, previous to the December term, 1806, of the supreme court, when the case of Wolcott v. Des Moines Co., 5 Wall [72 U. S.] 681, was decided (which was after the defendant took possession of the land, and in respect of which the defendant, a foreigner, almost unacquainted with our language, testifies he knew nothing), and it was not until the December term, 1869, that the case of Wells v. Riley [Case No. 17,404], was determined, in which it was first held that the permission of the local land officers to occupants to prove possession and improvements, and to make -entry of these Des Moines river lands under the pre-emption laws, was unauthorized and void. There is nothing in the history of this grant, whether legislative, executive, or judicial, which makes it impossible, or even improbable, that settlers upon these lands, prior, at least, to the final decision of Wells v. Riley [supra], might not be such in good faith as respects the title held by the plaintiff. Wells v. Riley [supra]. 2. But the principal question in the case is, whether, conceding the “good faith” of the claimants, they are entitled to be allowed for all valuable improvements made prior to the beginning of the ejectment suit, or only those made prior to that time, and after the expiration of five years from the time of entering on the land. The language of the statute giving the right of compensation to the claimant in this form, is, “where an occupant of land has color of title thereto, and in good faith has made any valuable improvement thereon, and is afterwards found not to be the rightful owner,” he shall be entitled to pay, in the manner provided, for such improvements. It is insisted by the plaintiff, that to entitle the occupant to compensation for his improvements, “it must appear that they were made in good faith, and under color of title;, in other words, color of title must concur, co-exist, with good faith at the time of making the improvements.” Hence, as in this case color of title depends upon five years possession (Revision 1860, § 2269), no improvements made during the five years, though made in good faith, can be considered, while for all that were made after the lapse of the five years, compensation may be allowed. The language of the statute above quoted is not free from ambiguity. The words used might be made to bear the construction contended for by the plaintiff. I have carefully considered the reasons for that construction, which were so ably urged by the plaintiff’s counsel at the bar, and enforced with additional illustrations and learning in his printed argument, without being convinced that it is the necessary or true meaning of the statute. An equally natural meaning of the words used, is that the “color of title" must exist before and at the time when the suit of the rightful owner is brought against the occupant, in which case the occupant may be compensated for any valuable improvements made thereon in good faith, the statute prescribing no limitation as to the time when they were made. These remedial statutes are entitled to a fair and even liberal construction (Longworth v. Wolfington, 6 Ohio, 10); and the view we adopt harmonizes with the evident policy of the legislature, as shown by the express provisions made by the legislature of Iowa to extend to the settlers “on any of the lands known as the Des Moines river lands” the rights given by the occupying claimant statute (Revision 1873, §§ 1984. 1987). We do not place our judgment upon the legislation last mentioned, since the improvements in this case were largely made before that time, although this legislation preceded, by several years, the suit brought to recover possession. It is by no means clear that the equities of an occupant who in good faith has made improvements during a period when the real owner was negligent in asserting his rights, may not be provided for [592] by retrospective legislation, but it is not necessary to enter upon the consideration of that question, as, in my judgment, the claimant’s case is embraced in the provisions of the general statute. Revision, § 2204; Code, § 1976; Society for Propagation of Gospel v. Pawlet, 4 Pet. [29 U. S.] 480; Albee v. May [Case No. 134]; Green v. Biddle, 8 Wheat. [21 U. S.] 381. The exceptions to the report of the referee are disallowed, and judgment will be entered in conformity therewith. Judgment accordingly. Mr. Justice MILLER, to whom the record and arguments in this cause were submitted, expressed his concurrence in the foregoing opinion.