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HOWARD V. PERRIN, 200 U. S. 71 (1906)
U.S. Supreme Court
Howard v. Perrin, 200 U.S. 71 (1906)
Howard v. Perrin
Submitted December 6, 1905
Decided January 2, 1906
200 U.S. 71
Under the Atlantic & Pacific Railroad Company land grant Act of July 27, 1866, title to land within the place limits passed to the company on the completion of the road without any selection or approval thereof by the Secretary of the Interior unless the tract was within the classes excepted by the act.
The two-year limitation in § 2941, Rev.Stat. Arizona, relates only to a plaintiff showing no better right than the defendant in possession, and does not give to a mere occupant of public land a title by prescription against one subsequently acquiring title from the United States.
Rev.Stat., § 891 determines the question of competency of the public records therein referred to, but not that of their materiality, and in this case, certain certified copies of records and papers in the General Land Office were held competent evidence, and, although some may not have been material, the judgment will not be disturbed in the absence of any prejudice to appellant.
Section 1 of § 3199 Arizona Rev.Stat. 1887, declaring all rivers, creeks and streams of running water in the territory to be public, does not apply to percolating water oozing through the soil. Whether the section applies to an actual subterranean stream undecided.
This action was commenced on July 13, 1898, in the District Court of Coconino County, Arizona, to recover possession of a quarter section of land, together with damages for its detention. The defendant, in addition to the denials in his answer of plaintiff's title, filed a cross-complaint praying a decree in his favor on account of certain alleged water rights. A trial resulted in a judgment for plaintiff, which was affirmed by the supreme court of the territory, to review which judgment this appeal was taken. A statement of facts was prepared by the supreme court, which statement was in substance that the land was within the place limits and a part of the land granted to the Atlantic & Pacific Railroad Company by act of Congress, approved July 27, 1866, 14 Stat. 292; that the grant was accepted by the company, a map of definite location duly filed
and approved, and the railroad completed and accepted in the year 1884; that, in April, 1894, the lands along this part of the road were surveyed and this tract found to be the northwest 1/4 of § 15, township 25 north, range 3 west, of Gila and Salt river meridian; that the survey was accepted and approved by the Surveyor General, and also by the Commissioner of the General Land Office; that, on June 27, 1896, this tract, together with others, was duly and regularly selected by the railroad company as a portion of the lands to which it was entitled under the act of Congress; that, on July 27, 1896, the filing of the list of such selections was allowed by the register and receiver of the United States land office at Prescott, Arizona, by them approved, the land certified to be public lands of the United States within the place limits of the grant, and free from all other claims; that thereupon such list so certified was forwarded to the Land Department at Washington, and has since remained on file in that office; that the cost of the survey and all fees allowed by law had been paid; that the land is nonmineral in character, neither swamp land nor claimed as such, nor within any reservation, and that there is no valid claim against it on file or of record in the land office of the district in which it is situated, and that, on January 13, 1897, the railroad company conveyed the land to the plaintiff. The statement of fact further shows that the only water upon the land is percolating water, oozing through the soil beneath the surface, in an undefined and unknown channel; that in 1889, the defendant's grantor entered upon the land, then unoccupied and unsurveyed, sank a well, and by running tunnels therefrom collected water in an arroyo, and conveyed the same by pipes to troughs and a reservoir for watering stock; that in 1892, the defendant's grantor conveyed the land to him by quitclaim deed, and that, on July 16, 1895, he posted on the dwelling house on the premises a notice in accordance with the territorial act of 1886 (Laws Arizona, 1893, p. 135), that he had appropriated all the water in a certain defined underground channel, and recorded a copy of such notice in the public records; that the
defendant and his grantor had been in the exclusive, open, and notorious possession, with the knowledge of plaintiff, of the land, improvements, and water ever since the year 1889, claiming by right of possession only; that they had never diverted any water from the land, or used, or caused the same to be used, elsewhere by any person.
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