Mr. Chief Justice Murray concurred.
To enable a party to recover lands under the possessory Act of this State it is necessary that he shall have complied with the provisions of the Act. A party out or possession, and having no interest in the improvements, cannot, by making a survey and filing affidavit with the county recorder, acquire any right of possession to land in the actual possession of another.
It appears from the plaintiffs own showing in this case, that Walker, prior to the time of surveying the land, and filing notice of claim, had sold his interest in the improvements and surrendered the possession of the land, which was actually occupied by a tenant of his vendee. His acts were not in conformity to the requirements of the statute, and gave him no right to the possession of the land. The fact that the survey and affidavit were made at the instance of, and for the benefit of the owner of the improvements, does not render that valid which is not authorized by the statute.
In passing the statute, the Legislature designed to promote the settlement and cultivation of the vacant public domain by securing to the actual settler the exclusive enjoyment of a tract of land without the necessity of an actual enclosure.
In order to prevent speculation, the possession of each settler is restricted to one hundred and sixty acres and he is required to make affidavit that he has taken no other claim under the Act. If this could be done by proxy, the intention of the statute would be defeated and the public lands o.f the State be monopolized by speculators, instead of furnishing farms to bona fide settlers.
The plaintiff, having failed to show a compliance on his part with the provisions of the statute, could not recover in this action any land not covered by his actual enclosure.
The Court therefore should have entered a judgment of non-suit on motion of defendant.
The judgment of the Court below is reversed, with costs.