COX V. HART, 260 U. S. 427 (1922)

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U.S. Supreme Court

Cox v. Hart, 260 U.S. 427 (1922)

Cox v. Hart

No. 71

Argued November 16, 1922

Decided December 11, 1922

260 U.S. 427


1. What will constitute possession of a tract of land depends largely upon its character and condition and the use to which it is

Page 260 U. S. 428

adapted; enclosure, or physical occupancy of every part, is not necessary. P. 260 U. S. 433.

2. Plowing of a furrow around 320 acres of unoccupied desert land, posting of a notice of claim, leveling, clearing, seeding, irrigating, and fencing of parts, with some ditch construction, and marking of a boundary with stakes held a taking of possession of the entire tract and commencement of the work of reclaiming it within the intent of the Act of March 28, 1908, c. 112, § 1, 35 Stat. 52, amending the Desert Land Law, as against an adverse claimant who occupied part of the tract subsequently, with notice. P. 260 U. S. 433.

3. The office of a proviso is to except something from the operative effect, or to qualify or restrain the generality, of the substantive enactment to which it is attached. P. 260 U. S. 435.

4. The Act of March 28, 1908, supra, restricted the right to enter desert land to surveyed land, but contains a proviso that any qualified individual "who has, prior to survey, taken possession of a tract of unsurveyed desert land," and "has reclaimed or has in good faith commenced the work of reclaiming the same," shall have the preference right to make entry within 90 days after the filing of the approved plat of survey in the district land office. Held that the proviso includes a case in which possession and work began before the date of the act no less than cases in which they were subsequent. P. 260 U. S. 434.

5. Public lands lose their status as "surveyed lands" and become "unsurveyed" when the lines and marks of the original survey have become obliterated for practical purposes and when, for that reason, a resurvey has been directed by an act of Congress. P. 260 U. S. 436.

270 F. 51 affirmed.

Appeal from a decree of the circuit court of appeals affirming a decree of the district court which adjudged the appellee to be the equitable owner of a tract of land patented to the appellant under the Desert Land Laws, and directed a conveyance of the legal title.

Page 260 U. S. 429

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