O'Conner v. Corbitt

Citations

• 3 Cal. 370

Syllabus

<p>Where the complaint alleged that in September, 1849, plaintiff settled on a tract of land, “ the same being public land of the United States,” that subsequently H., a foreigner, built a house and occupied a portion of the tract, and now that H.’s executor is offering the same for sale, and plaintiff prays an injunction, and damages for the occupation: Held, that the complaint sets forth no principle on which to base a claim.</p> <p>The prospective pre-emption Act of Congress of 1841, is expressly confined to the surveyed lands, and was not extended to California at the time of the acts complained of, and the statute of this State, which protects the possession of settlers on public lands, to the extent of 160 acres, was not passed until April, 1852, long after the commencement of this suit. Under neither of these acts can the plaintiff claim any rights, and by his own showing he is a mere trespasser.</p> <p>An action - brought under the Act of 1850, must show that the possession of the plaintiff has been invaded.</p> <p>The right to recover for use and occupation is founded alone on contract.</p> <p>A trespass dies with the trespasser.</p>