
    162 F. 637
    GORDON v. ROSS-HIGGINS CO. et al.
    No. 1,440.
    Circuit Court of Appeals, Ninth Circuit.
    June 1, 1908.
    
      Claypool, Kellum & Cowles (W. C. Sharpstein, of counsel), for plaintiff.
    Before GILBERT, . ROSS, and MORROW, Circuit Judges.
   MORROW, Circuit Judge

(after stating the facts as above). The errors assigned relate to the rulings of the court in the exclusion and admission of evidence and the action of the court instructing the jury to find a verdict for the defendant. In our view of the case it will be sufficient to determine the question whether upon the evidence the court was justified in instructing the jury to find a verdict for the defendant.

Section 2387 of the Revised Statutes (43 U.S.C.A. § 718), provides that: “Whenever any portion of the public lands have been or may be settled upon and occupied as a town-site,” it shall be lawful to enter “the land so settled and occupied in trust for the several use and benefit of the occupants thereof, according to their respective interests.”

The act entitled “An act to repeal timber-culture laws, and for other purposes,” approved March 3, 1891 (26 Stat. 1095, c. 561 [48 U.S.C.A. § 355]), provides, in section 11: “That until otherwise ordered by Congress, lands in Alaska may be entered for town-site purposes for the several use and benefit of the occupants of such town-sites, by such-trustee or trustees as may be named by the Secretary of the Interior for that purpose.”

It does not appear that at any time during the period involved in the, question of the possession of the lot in controversy any proceedings were taken under the statute by the town of Fairbanks to execute the trust therein provided; but the possession here contended for by the parties to this action is one that may ultimately ripen into a title under such statutes (Malony v. Adsit, 175 U.S. 281, 289, 20 S.Ct. 115, 44 L.Ed. 163), and the court must determine the character of occupancy or possession with that purpose in view. In Bender v. Shimer, 19 L.D. 363, 367, the Secretary of the Interior, in a contest relating to a lot in the town of El Reno in Oklahoma, had occasion to consider the question: “What is the meaning of the word ‘occupancy’ as a term of real estate law, and who is an ‘occupant’ within the meaning of the town site law ?”

The Secretary, in discussing this question, says: “The meaning of the term may differ very materially, it seems, in its application to different kinds of property, according to the use which, from the nature of it, it is commonly designed. ‘Occupied’ always implies a substantial and practical use of a building for the purpose for which it is designed. In insurance law, the terms of a policy contemplate that a dwelling house is occupied when human beings habitually reside in it, and unoccupied when no one lives or dwells in it; that there be in the house the presence of human beings, as at their customary place of abode, not absolutely and uninterruptedly continuous, but the house must be the ‘place of usual return and habitual stoppage.’ Within the meaning of a tax law, the owner of land may be in occupation of it by his tenant. See Anderson’s Law Dictionary, p. 725, title ‘Occupy,’ and cases therein cited. An occupant, within the meaning of the town site law, is one who is a settler or resident of the town and in bona fide actual possession of the lot at the time the entry was made. . One who has never been in actual possession of a lot cannot therefore be said to be an occupant of it. The occupancy must be actual and cannot be begun by an agent. It must be for residence or for business, or use, and the residence, business, or'use must be by the claimants. There must be a subjection of the land to his will and control. See American & English Encyclopedia of Law, title ‘Townsites,’ note ‘Occupant,’ vol. 19, p. 364, and cases therein cited. The authorities, however, are uniform that actual settlement is not required to constitute actual possession. ‘Actual possession as much consists of a present power and right of dominion as an actual corporeal presence.’ Minturn v. Burr, 16 Cal. 107-109. By ‘actual possession’ is meant a subjection to the will and dominion of- the claimant, and is usually evidenced by occupation, by a substantial inclosure, by cultivation, or by appropriate use, according to the particular locality and quality of the property. Coryell v. Cain, 16 Cal. 567-573. ‘Actual possession’ of land is the purpose to enjoy, united with, or manifested by, such visible acts, improvements, or inclosures as will give to the locator the absolute and exclusive enjoyment of it. Staininger v. Andrews, 4 Nev. 59-631. It is ‘actual’ also where one having the title is in possession of lands by his tenant, agent, or steward. Fleming v. Maddox, 30 Iowa, 240. It follows from these authorities that there can be no such thing as constructive occupancy under the town site laws, but there must be an actual bodily presence of the claimant, or some one for him, on the lot or lots for which he seeks to acquire title, or a purpose to enjoy, united with, or manifested by, such visible acts, improvements, or inclosures as will give to the claimant the absolute and exclusive enjoyment of it.”

In Courtney v. Turner, 12 Nev. 345, 352, the Supreme Court of Nevada, in considering what acts were sufficient to constitute such a possession of public lands as would support an action of ejectment, said: “ ‘Actual possession’ of land consists in subjecting it to the will and dominion of the occupant, and must be evidenced by those things which are essential to its beneficial use. Justice to the community also requires in the circumstances of this country that the extent of the claim should be clearly defined, and that the possession should be open, notorious, and continuous.”

Applying these definitions of “occupancy” and “possession” to the facts of the present case, we find that the plaintiff was not an occupant or in possession of the lot in question when the defendants’ predecessors in interest entered upon and took possession of the premises. The plaintiff testified that he occupied the cabin from the time he completed it until about the 25th day of June, 1903. He was asked by his attorney: “When did you leave that property ?” His reply was: “I left there about the 25th day of June, somewhere around there.” What did he mean when he said he left the property in June, 1903 ? He meant that he did not continue in actual possession of it after that date. He was not in the actual possession of the lot himself after June 25, 1903, and he did not have a tenant or agent in actual possession for him after that date. Mainville testified that the plaintiff told him to look after the lot when he was gone, but Mainville did not live in the cabin, and was not left in actual occupation or possession of the lot, and, besides, he remained only a few days in. Fairbanks. Marston was next asked to look after the property. He was keeping a saloon and hotel, did not occupy the cabin, and was not'left in the actual possession of the lot.

Leaving tools in the cabin, together with a stove and a few articles of personal property, was not of itself sufficient to retain possession of the premises; nor was the claim made by the plaintiff that he was in poor health a sufficient excuse for his failure to maintain possession of the premises for the period of three years. His poor health did not prevent him from having a representative on the premises. He knew in 1904, while he was in the Hawaiian Islands, that his tools had been taken from the cabin, and that another party had taken possession of the ground; but he took no steps to assert his claim of possession. He was at Valdez, in Alaska, four or five months during the summer of 1905, and still he made no effort to protect whatever right of possession he may have had at that time. He waited until other parties had placed expensive improvements upon the ground before he took action. This does not look like good faith in dealing with the claim of a right of possession on public lands, particularly in a mining camp. Such conduct amounted to an abandonment of the ground in controversy. It is true that he testified in October, 1906, that he never intended to abandon the property; but this declaration cannot, under the circumstances, prevail as against the evidence afforded by his acts.

In this view of the case the remaining assignments became immaterial and need not be considered.

The judgment of the District Court is affirmed.  