George Sutherland

“ Does the application of the proviso here proposed contravene this rule?
Prior to the Act of March 28, 1908 (35 Stat. 52) , unsurveyed lands, as well as surveyed lands, came within the purview of the Desert Land Laws (19 Stat. 377) . That act, however, from and after its passage restricted 'the right to make entry of desert lands * * * to surveyed public lands' and expressly declared that 'no such entries of unsurveyed lands shall be allowed or made of record. Then follows the proviso now being considered. The office of a proviso is well understood. ”

“ It follows that, although the survey may have been physically made, if it be disapproved by the duly authorized administrative officers the lands which are the subject of the survey are still to be classified as unsurveyed. In other words, to justify the application of the term 'surveyed' to a body of public land something is required beyond the completion of the field work and the consequent laying out of the boundaries, and that something is the filing of the plat and the approval of the work of the surveyor. ”

“ Prior to appellant's occupation on November 8, 1906, appellee had entered upon and exercised and was then exercising the acts of dominion herein set forth over the 320-acre tract under a claim of right. When appellant entered upon the land all these evidences of appellee's claim and possession were open and visible and in addition appellant was specifically notified that the claim included the land in controversy.
What will constitute possession of land largely depends upon its character, condition and the use to which it is adapted. ”

“ Previously, and shortly before she was of age, her father, acting in her behalf, had caused a furrow to be plowed around the entire 320-acre tract, and had posted a notice claiming it for the appellee. During the year 1906 appellee caused about 80 acres of that portion of the tract lying east of the lands in controversy to be leveled, cleared and seeded to barley, and ditches for irrigating the same to be constructed. All the lands at that time were unoccupied desert lands, within the meaning of the land laws of the United States. ”

“ It is evident that this is not, and cannot be, uniform in every case, and that there may be degrees in the exclusiveness even of the exercise of ownership. The owner cannot occupy literally the whole tract ”

“ It is not necessary to constitute actual possession that there should be an inclosure or any physical or visible occupancy of every part of the land. As well said by the Supreme Court of Iowa in Booth v. ”