Gonzales v. French

Emma J. Gonzales, in October, 1891, filed a bill of complaint in the district court of the Fourth judicial district of the territory of Arizona, against E. W. French, probate judge of the county of Yavapai and territory of Arizona, and former trustee of the inhabitants of the town of Flagstaff, of the county of Coconino, and J. E. Jones, probate judge of said county of Coconino, and the successor, as trustee, of the inhabitants of the said town of Flagstaff, and therein alleged that she was the equitable owner of a certain tract of land, containing 120 acres, and forming part of section 16, township 21 N., range 7 E., of the Gila and Salt River meridian. The facts, as alleged by her, were substantially these: Prior to the survey of said township, Thomas F. McMillan, Frank Christie, and Conrad Farriner, who were citizens of the United States, over the age of 21 years, and qualified pre-emptors, while prospecting for a home upon the public lands of the United States subject to pre-emption, or that might so become when the same should be surveyed, settled on this land, intending to claim the same as pre-emptors, and were on said land at the date of survey in 1878; that they had built dwelling houses thereon, and reduced portions of it to cultivation prior to such survey; that they continued to improve and claim the same until in June, 1883, when the plaintiff bought from the said occupants all their improvements, and took possession thereof; that she afterwards, and while living on the land she now claims, built a dwelling house thereon, and made other improvements, prior to April 2, 1885, of the value of $3,000; that on said date she made formal application to the register and receiver of the United States land office at Prescott, Ariz., to be allowed to file a pre-emption declaratory statement for the land, and to enter the same, tendering to said officers the proper price therefor, said application being made before any adverse claimant was known, but her application was rejected, on the ground that the land was reserved for schools; that on February 3, 1889, congress passed an act for the relief of the inhabitants of Flagstaff, Ariz., the tract involved in this suit, being embraced in the half section mentioned in said act, by which it was provided that the probate judge of Yavapai county might enter the S. 1/2 of section 16, township 21 N., range 7 E., in trust for the occupants and inhabitants of Flagstaff. The bill further alleged that the tracts settled on at the date of the survey were excepted by section 2275 of the Revised Statutes of the United States from the reservation of the sixteenth and thirty-sixth sections in each township for school purposes, but that, if not so excepted, the land claimed by her was released from any such reservation by said act of February 13, 1889, and became subject to her settlement claim; that the said French, probate judge, had been permitted, on January 17, 1889, to make town-site declaratory statement for the benefit of the inhabitants of Flagstaff for said half section; that she (the plaintiff) contested the right of the said French to make town-site entry, and prosecuted her protest by successive appeals to the commissioner of the general land office and the secretary of the interior, but that a patent of the United States was issued to said French on said entry for said land; that, at the time she purchased said improvements and settled on the land, the town of Flagstaff was unorganized and unknown, and none of the inhabitants were then settled on said land, or claiming any part of it; and that, on the organization of Coconino county, the land in suit became a part thereof, and the defendant Jones became probate judge of the new county, and the successor to French in the trust. The plaintiff asked a decree declaring that the settlement and occupancy of said land, at the date of survey, by qualified pre-emptors, excluded the same from the reservation for school purposes; that, by reason of defendants' purchase of the improvements, and her own occupancy and improvements, a right of entry attached thereto in her; that the refusal of the local officers to allow her filing in 1885 was unlawful; that the act of February 13, 1889, did not take away any of her rights, but, if anything, released any claim the territory of Arizona might have to the land; and that, under the town-site laws referred to in said act, her rights as a settler were and are superior to those of the inhabitants of Flagstaff as to the particular part of the section covered by her claim; and that the said patentee, as trustee for the said inhabitants, in so far as the land claimed by the plaintiff is embraced in said patent, should be decreed to be the trustee of the plaintiff, and be required to deliver a deed for the same to the plaintiff.

The defendants demurred to the complaint, on the general ground that it failed to state facts sufficient to constitute a cause of action. This demurrer was sustained by the district court. The plaintiff elected to stand on her complaint, and a final decree was entered dismissing the bill. The plaintiff thereupon appealed to the supreme court of the territory, where the judgment below was affirmed (33 Pac. 501), from which decree an appeal was taken and allowed to this court.

S. D. Luckett, for appellant.

Edward M. Doe, for appellees.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.