SUPREME COURT OF THE TERRITORY OF WASHINGTON
January 25, 1888, Decided
ERROR to the District Court holding terms at North
Yakima. Fourth District.
The defendant in error recovered a judgment against the
county for damages sustained by the establishment of a
public highway through his timber culture claim, to which he
had not yet acquired title, but which was lawfully in his
possession. The county appealed from the judgment.
Court: Judgment affirmed.
Syllabus: HIGHWAYS--ESTABLISHMENT OF--EMINENT DOMAIN--INJURY
TO TIMBER CULTURE CLAIM--DAMAGES.--Plaintiff entered a
timber culture claim upon which were three springs, and also
entered as a homestead an adjoining tract of 160 acres, and
the county commissioners, before he had acquired title, but
while he was lawfully in possession, so located a public
highway that the springs which furnished water for
plaintiff's dwelling and other purposes were left in the
middle of the road: Held, that plaintiff is entitled to
damages for such injury.
Counsel: Mr. H. J. Snively, for the Plaintiff in Error.
An entry upon public land, under the existing laws, vests
no title in entryman, but gives only a right of possession,
which may be perfected by continuous occupancy and
improvement. ( French v. Spencer, 21 How. 228; Shepley v.
Cowan, 91 U.S. 337.) Under the existing laws of the United
States, the right of way over public lands for county roads
is granted to the public, and this right has priority over
the rights of a settler not yet having title vested in him;
a settler not even having the right to dedicate land under
such circumstances to the public. ( Smith v. Smith, 8 Pac.
Rep. 385; Rev. Stats. U.S. sec. 2477; 2 N. W. Rep. 635.) The
remedy afforded by the statutes of Washington Territory to
persons aggrieved by the opening of a county road is
confined to the persons who own the land taken. (Code of
1881, sec. 2976 et seq.) The facts in this case show that
Tullar had no vested right in the land over which the road
is proposed to be constructed; that he had no rights which
he could transfer, and, a fortiori, none which could be
taken from him by condemnation proceedings; he had no
improvements on the land proposed to be taken; nor had he
possession of it. The court erred in not instructing the
jury to find for the defendant, and in overruling the motion
of defendant for a new trial, and the judgment should be
reversed.
Messrs. Reavis, Mires & Graves, for the Defendant in Error.
The words "public lands" are used in our legislation to
describe such lands as are subject to sale and other
disposition, and not such as are already claimed under the
timber culture law. ( Newhall v. Sanger, 92 U.S. 761.) This
land was disposed of to defendant in error by the United
States with conditions subsequent. (20 U.S. Stats. 89.)
Property in such lands is recognized by our legislature.
(Code, sec. 433; Burch v. McDaniel, 2 Wash. 58; Cothrin v.
Faber, 4 Pac. Rep. 940; Salee v. Corder, 67 Cal. 174.)
Judge(s) Mr. Justice ALLYN delivered the opinion of the
court. JONES, C. J., and LANGFORD, J., concurred.
Opinion By: ALLYN
Mr. Justice ALLYN delivered the opinion of the court.
Appellee, in 1885, entered a timber culture claim on the
northwest quarter of section 30, township 9 north, range 26
east, in Yakima county, and thereafter cultivated said land
under the timber culture law. There was upon said claim
three valuable springs. In the same year, appellee entered
160 acres adjoining as a homestead, and lives thereon. The
water for appellee's dwelling, and other purposes, is
derived from the springs above and upon said timber culture
entry. The following year, the county commissioners of said
county ordered a road located directly through said timber
culture claim, and the same was so located and opened as to
place the said three springs in the middle of the road.
Upon the report of the appraisers appointed by the
commissioners, appellee was allowed $ 100 as damages, from
which he appealed to the district court. In the district
court the question was submitted to a jury, and appellant
herein moved the court to find a verdict for the defendant,
which was refused; and instead the court instructed the jury
to "consider the value of plaintiff's (appellee's) timber
culture as a timber culture, and not as land to which he had
title, and determine the amount of damage to such timber
culture." The jury assessed such damage at $ 450. There was
ample evidence to sustain the amount of the verdict. The
question at present is, can the appellee recover anything as
damages to this timber culture to which he has not as yet
acquired title?
That appellee had only the right of possession, with a
right of later acquiring title; that he could not have
dedicated this piece of land to the public for a road; and
that the right of way over public lands is granted to the
public, may all be conceded, and yet it by no means follows
that a bona fide settler or entryman, because the legal
title has not yet vested in him, can thus be deprived of
valuable rights, as would be the case here. The right of way
over "public lands" that is granted to the public for roads,
etc., doubtless contemplates strictly public lands, such as
are open to entry and settlement, and not those in which the
rights of the public have passed, and which have become
subject to some individual right, of settler, or the like,
as in this case.
Under the laws of the United States appellee was in
possession, and such possession was good as against the
world so long as he complied with the laws. From all that
appears, he had possession in this way; and to say that
valuable features of the land, as springs, and the land
itself, can thus be taken without compensation to the honest
settler, for the use of the public, is to say a self-evident
wrong; and such theory in this case would ignore the maxim,
that "for every wrong there is a remedy." We do not believe
the sections of the Code relied on by appellant contemplate
such a possibility, or carry this intent in a case like
this. The public have chosen to exercise their rights of
locating this road; they have the benefit, let them pay the
damage, which is fully proved.
Judgment of the court below is affirmed.
JONES, C. J., and LANGFORD, J., concurred.