
    M. FEIRBAUGH ET AL., Appellants, v. J. MASTERSON, Respondent.
    Possessoby Bights — Pbiob Possession — Evidence oe Title. — It is a well-settled rule in relation to possessory rights that prior possession is prima, facie evidence of title.
    Pbior Possession. — -To entitle a party to hold hy right of prior possession, there must be an actual, bona fide occupation, a possessio pedis, a subjection to the will and control.
    Idem. — It is not necessary that the occupant should cultivate the property claimed. It is sufficient if it be subjected to his use in the manner pointed out. Neither is any particular kind of inelosure required where a party is in possession of the land marked by distinct monuments of boundary, whether the same be a natural or an artificial inclosure. Claiming a title to the whole tract, the possession of the part so occupied will draw after it the possession of the whole.
    Public Lands — Actual Possession. — In relation to public lands which are not mineral lands, the title, as between citizens of the territory, where neither connects himself with the government, is considered as vested in the first possessor, and to proceed from him. This possession must be actual, and not constructive.
    Pbior Possession — -Actual Possession. — Where reliance is placed upon the prior possession of the plaintiff, or of parties through whom he claims, such possession must be shown to have been actual in him or them. By actual possession is meant a subjection to the will and dominion of the claimant, and is usually evidenced by occupation, by a substantial in-elosure, by cultivation, or by appropriate use, according to the particular locality and quality of the property.
    Notice. — The lines were x>ointed out to the defendant by the plaintiffs with reasonable accuracy, and we see no good reason why actual notice is not equally as good so far as bringing home to the defendant a knowledge of the plaintiffs’ rights are concerned, as that afforded by stakes or like monuments.
    Idem. — Having gone into the actual possession of a portion of the premises, they were entitled to a reasonable length of time in which to inclose them. What this length of time should be must, for the most part, depend upon the particular circumstances and locality of each claim.
    Possession of Part.' — If a party were to locate and claim for agricultural purposes a tract of land, and were to reside upon, inclose, and cultivate a portion of the same, having artificial monuments sufficient to indicate generally the boundaries of the entire claim, this would most certainly be a substantial compliance with the rule, and such possession of a part would draw after it the possession of the whole.
    Assignment of Error — Practice.—The supreme court will not scrutinize a voluminous transcript to ascertain whether the inferior court may possibly have committed some error to the prejudice of the complaining party, unless it should first have been assigned.
    Appeal from tbe third judicial district, Owyhee county. It is quite impossible to give a much fuller detail of facts than is contained in the opinion of the court. Reference is made in the transcript to a map of the premises as giving a very accurate description of. them, the location of the “cabins,” the amount and location of the fencing, etc., but this map was not sent up, or has been lost. Hence, all these facts were ascertained alone from the evidence of the witnesses as written down by the clerk on the trial.
    
      Ourtis db George, Miller, and Huggan, for the appellants:
    The supreme court in the state of California have held, in the following cases, that proof of prior possession is enough to maintain ejectment against a mere naked trespasser: 4 Cal. 34, 69, 78, 96, 278, 293;. 5 Id. 250, 486; 7 Id. 39, 153, 302; 9 Id. 5, 437.
    
      Henry Martin, for the respondent.
   Cummins, J.,

delivered the opinion of the court,

McBride, O. J., concurring.

This was an action of ejectment for the recovery of premises situate in- Owyhee county. A jury having been expressly waived by the parties, a trial was had by the court. The judgment was for the defendant, after'which the plaintiffs move for a new trial upon the grounds:

1. That tbe findings of tbe court and tbe judgment thereon are against law.

2. For errors in law occurring on tbe trial and excepted to on tbe part of tbe plaintiffs.

Tbis motion was denied bj tbe court, from wbicb order denying a new trial an appeal is taken to tbis court. Tbe testimony was reduced to writing by tbe clerk by order of tbe court, and is incorporated in tbe record. Tbe pleadings are in tbe usual form in actions of tbis character, plaintiffs alleging that they were in tbe quiet, peaceable, and exclusive possession prior to defendant’s entry upon tbe disputed premises, wbicb is traversed by tbe defendant.

It is contended by tbe appellants that tbe “findings of fact by tbe court below are against tbe evidence and unsupported by law.” It is a well-settled rule in relation to pos-sessory rights that prior possession is prima facie evidence of title. Tbis principle is firmly fixed in the jurisprudence of tbe country. Much difficulty, however, is often met with in tbe proper application of tbis rule to given cases. In tbis case it appears from tbe evidence that tbe plaintiffs went upon tbe tract of land described in their complaint, and wbicb consists of about three quarter sections, about tbe sixteenth of August, 1864; that several days subsequent to tbis they commenced inclosing tbis tract of land with a fence; that during tbis time they were residing upon tbe premises, and engaged at times in making shingles. After they bad completed about three fourths of a mile of their fence, the defendant came upon tbe premises, and after marking a few trees, bad a conversation with some of tbe parties who were then claiming tbe land, at which time tbe plaintiffs notified him that they claimed tbe land, pointed out tbe fence they were then engaged in building, and further pointed out to him tbe general boundaries of their claim as accurately as they well could do. Tbe defendant then requested one of them to go with him and point out more particularly tbe boundaries of their claim; but, after proceeding a short distance beyond the fence, tbe defendant declined going any farther, after wbicb be proceeded to inclose a tract of land included within tbe limits pointed out to him as the lines bounding plaintiffs’ claim. The plaintiffs continued at wort until they completed their fence, which was some six weeks subsequent to their location. It does not appear that the defendant ever resided upon the tract of land he claimed, although he entirely, or nearly so, inclosed it with a fence and commenced the erection of a cabin thereon. As to the character of the fences of both parties there is some conflict of testimony, though it seems they were made by felling trees and putting brush together, sufficient in many places to turn stock, in others not. These facts are well established by the evidence. It is proper here to remark that the premises claimed by the defendant, being one hundred and sixty -acres in extent, are those in dispute in this action.

The question now presents itself upon this state of facts: Did the plaintiffs have actual possession of the premises in controversy at the time the defendant went upon them, which was about the twenty-fifth of August, 1864? Was the occupancy of the plaintiffs at that time an actual, peaceable, and exclusive possession of the entire premises claimed by them, including that portion subsequently claimed by the defendant, such as is sufficient in law to entitle them to the exclusive enjoyment of the same as against every other claimant except the general government ?

The supreme court of California, in the case of Plume v. Seward et al., say, in relation to this subject, that there must be an actual, bona fide occupation, a possessio pedis, a subjection to the will and control, as contradistinguished from the mere assertion of title, and the exercise of actual acts of ownership, such as recording deeds, paying taxes, etc. This being the case, it becomes necessary to inquire, if a party who enters on land with no higher claim of title than that which the law presumes from his possession, is entitled to claim more than the quantity thus actually occupied by him. This question has been frequently decided in most of the western states, where entries have been made upon jmblic lands by persons unable to reduce the whole of the lands to actual occupation by fencing and cultivation. These entries have for the most part been made by settlers claiming one hundred and sixty acres under pre-emption laws, or some local custom on the subject. In many cases the occupation of a portion of the land and the blazing of trees, so as to distinctly mark the extent and boundaries of the claim, have been held to operate as notice, and carry the possession to the whole tract; so the felling of timber around a tract of land, and the building of a brush fence, have been held as sufficient acts of the party in occupation of a part, to. draw after them the possession of the land so inclosed. The character of the improvement must, in a great measure, depend upon the locality. It is not necessary the occupant should cultivate the property thus claimed; it is sufficient if it be subjected to his use in the manner pointed out. Neither is any particular kind of inclosure required where a party is in possession of the land marked by distinct monuments of boundaries, whether the same be a natural or an artificial inclosure. Claiming title to the whole tract, the possession of the part so occupied will draw after it the possession of the whole.” (Vide Plume v. Seward et al., 4 Cal. 95.)

And again the same tribunal held that “with the public lands, which are not mineral lands, the title, as between citizens of the state, where neither connects himself with the government, is considered as vested in the first possessor, and to proceed from him. This possession must be actual and not constructive, and the right it confers must be distinguished from the right given by the possessory act of tho state. * * * "Where reliance is placed, not upon the act, but upon the prior possession of the plaintiff or of parties through whom he claims, such possession must be shown to have been actual in him or them. By actual possession is meant a subjection to the will aiul.jkmAn.-irm of the claimant as is usually evidenced by occupation, by a substantial" inclosure, by"euTtivation, or by appropriate use, according to the particular locality and quality of the property.” (Coryell v. Cain, 16 Cal. 567.)

Applying the rule here laid down to the case at bar, we find that the plaintiffs had fully complied with all that is required by law in order to vest the right of possession in them and to render tbe subsequent entry of tbe defendant wrongful. Several days prior to defendant’s entry, tbe plaintiffs, then residing upon tbeir claim, bad commenced tbe construction of tbeir fence to inclose tbe same. It is true tbey bad not marked or designated tbeir boundaries by any - artificial monuments, beyond tbeir fence, but it is equally true that tbe defendant bad actual notice of tbe extent of tbeir claim. Tbe lines were pointed out to bim by plaintiffs with reasonable accuracy, and we see no good reason why actual notice is not equally as good so far as bringing home to the defendant a knowledge of the plaintiffs’ rights are concerned, as that afforded by stakes or like monuments. Tbe plaintiffs, as already observed, proceeded to tbe completion of tbeir fence with reasonable diligence. Having gone into tbe actual possession of a portion of tbe premises tbey were entitled to a reasonable length of time in which to inclose them. What this length of time should be must, for tbe most part, depend upon tbe particular circumstances and location of each claim. In this case, as we have already stated, it does not appear that tbe plaintiffs rmnecessarily delayed tbe completion of tbeir inclosure. Besiding, then, upon or being in actual possession of a portion of tbe tract of land claimed by them, tbe right of possession of tbe entire tract so inclosed was vested in tbe plaintiffs. This possession dated from tbe time tbey entered upon and located tbe premises. It is not absolutely necessary in all cases, as was seen from tbe authorities above read, in order to entitle a party to tbe exclusive occupation and enjoyment of a land claim, segregated, as it were, by bim from tbe public domain, that be sliould have first inclosed it by a substantial inclosure, although this is-undoubtedly one of tbe highest evidences of actual possession. It may be evidenced by any appropriate' and lawful use, according to the particular locality and quality of tbe property, and tbe purpose of tbe occupation. If a party were to locate and claim for agricultural purposes a tract of land, and were to reside upon, inclose, and cultivate a portion of tbe same, having artificial monuments sufficient to indicate generally tbe boundaries of tbe entire claim, this would most certainly be a substantial compliance with the rule we have here laid down, and such possession of a part would draw after it the possession of the whole. A different rule from this would work an unnecessary hardship in a large majority of cases.

In looking over the testimony, therefore, in this case, we are necessarily brought to the conclusion that the plaintiffs were in the actual and exclusive possession of the premises in controversy at the time the defendant entered upon the same. This conclusion is strengthened by the conduct of the defendant himself at the time. He was not only shown by the plaintiffs the boundaries of the claim they were then asserting a right to, or dominion over, but he .attempted to negotiate a purchase” of an interest in this ranch from one of the claimants, thus recognizing, to some extent, their right of control over and interest in the same.

. If we are correct in our construction and exposition of the law governing possessory titles, it follows that the court below erred in its finding as facts that the plaintiffs did not take possession of the premises set out in the complaint about the sixteenth of August, 1864, and were not entitled to the possession of the same at the time of the alleged ouster. These conclusions of fact are entirely unsupported by the evidence, or were, we might say, in direct opposition to it.

As this disposes of the case in this courtdt is unnecessary for us to inquire into the correctness of the rulings of the court on the trial to which exceptions were taken at the time. In fact, they have not been included in an assignment of errors, and we have just decided at this term in the case of The People v. John C. Page, that we will not scrutinize a voluminous transcript to ascertain whether the inferior court may possibly have committed some error to the prejudice of the complaining party, unless it shall first have • been assigned as such.

Judgment reversed and a new trial awarded.  