By the Court,
Norcross, J.:
This is an action in ejectment to recover possession of what is known as "Scott Island” in the Truckee River, near the City of Reno. Trial was had before the court without a jury, and judgment rendered in favor of plaintiff. Defendant appeals from the judgment and an order denying his motion for a new trial.
The material facts of the case established at the trial are as follows: The shore land on both sides of the river adjacent to the island in controversy was surveyed by the gov
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ernment about tbe year 1863, but up to tbe time of tbis trial tbe island bad never been so surveyed. In July, 1877, one A. J. Hatch filed in tbe United States Land Office at Carson City bis declaration of intention to reclaim tbe island under tbe desert land act, and thereupon received tbe register’s and receiver’s duplicate receipt and certificate showing that the first payment on account of tbe purchase price of tbe land bad been made. On January 13, 1881, an application for survey of tbe island was made, and on the following day all proofs and tbe application for survey were sent to the General Land Office at Washington. In 1887, Hatch conveyed tbe island together with other land on tbe south bank of tbe river adjacent thereto to one 0. Madden. In 1890, Madden conveyed tbe same property to one A. Banta. On February 23, 1906, Banta conveyed tbe island in controversy to tbe plaintiff, respondent herein. It appears that as early as 1871 Hatch claimed 140 acres of unsurveyed land, including tbe island, and filed a possessory claim therefor in tbe recorder’s office in Washoe County, Nevada. In 1876 or 1877 be constructed a flume across tbe south channel of tbe river to tbe island. In 1895 another flume was constructed to tbe island to irrigate it, by Gelmstead, Banta’s lessee. Tbe sagebrush was cleared off, onions and potatoes planted, and tbe next year it was seeded to alfalfa. Tbe island bad been irrigated and cultivated, and crops of alfalfa raised upon it by Banta’s lessees from 1895 to 1905, and from thirty to forty tons of bay were harvested annually therefrom, and after the bay was cut it was used as a pasture. Across tbe western or upper portion of tbe island a fence bad been constructed, separating a small portion of tbe island claimed by one Haydon from the main part of tbe island lying to tbe east, which was claimed by Banta, and there was a fence along tbe south side sufficient to keep stock upon tbe island. On or about tbe 12th of October, 1905, between 6 and 6:30 p. m., tbe appellant Read entered upon tbe island with a load of lumber, food, and cooking utensils, and located himself thereon. At tbe time of bis entry there was upon tbe island, known .to him, a flume for carrying water, ditches, and fences, and he found there a field of alfalfa, and knew
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that Banta was growing the alfalfa and was claiming the land. He admitted that he entered upon the island for the purpose of "jumping it? To reach the island appellant was obliged to go through Banta’s inclosed field lying south of the river and adjacent thereto. There is no evidence that the island at the time the defendant entered upon it was claimed by anyone, except Hatch and his grantees, Madden and Banta, and there is no contradiction of the evidence that the island was successively claimed by Hatch, Madden, and Banta, and that it was cultivated continuously each year from 1895 down to the time of defendant’s entry thereon.
It appears from undisputed testimony that the plaintiff and his grantors and predecessors in interest had been in the actual possession of the property, and had cultivated the same, for many years prior to the commencement of this suit. It further appears that the defendant knew that this island was in the possession of the plaintiff’s grantors when he entered thereon. It further appears that no entry could be made upon the island without consent, except by trespass upon the lands of Banta, the immediate grantor of the plaintiff, and that the defendant in entering upon the island trespassed upon other lands as well as upon the lands in controversy. It further appears from the testimony that it was not necessary to inclose the island by fences, for the reason that the river to the north and east and west was ample protection, and the inclosed lands of Mr. Banta lying to the south of the river protected the land and the crops in that direction. After the defendant entered upon the island, he erected a dwelling house, and established his family therein, and claims the right to hold the island under the homestead law. No entry has as yet been made by him in the land office, by reason of the fact that it is unsurveyed land; but appellant has applied to have a survey made by the government.
Appellant contends that the court erred in admitting in evidence the quitclaim deed from A. Banta to respondent, of date February 23,1906. This contention is based upon the assumption that appellant’s entry upon-the island was peaceable, and at the time this deed was made Banta neither
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had the possession nor the right of possession, and therefore the deed could convey nothing and could not prove or tend to prove any of the issues in the case. A determination of this question involves the merits of this case. If Banta at the time he gave this deed had either the possession or the right of possession, the quitclaim deed was sufficient to convey such title as he possessed. That Banta had possession of the island at the time appellant made his entry thereon is not open to question and is not questioned. Such possession was good against every person, unless some one else showed a better right by connecting himself with the government title. The appellant claims he has done this by entering upon the land as a homesteader and applying to the government for a survey preliminary to making a proper application to purchase the land and obtain a patent therefor.
The fatal defect in appellant’s position is that his entry upon the land was by trespass. This court, in line with many authorities, both federal and state, has held that a right to government land cannot be initiated in this manner. (Nickals v. Winn, 17 Nev. 188; Brown v. Killabrew, 21 Nev. 437; Gonder v. Miller, 21 Nev. 180.) See, also, the recent decision of this court in the case of Nash v. McNamara, 30 Nev. 114, in which numerous authorities upon this point are cited.
The judgment and order appealed from are affirmed.