taxes on the land is irrelevant since the law does not require the payment of taxes under a Class 1 claim. They point out that only a claim based on Class 2, which was added to the statute in 1953, requires evidence of such payments.

They further assert that they should not be presumed to know the county records, more specifically, the statement contained in the Malheur County recorder's office showing the land to be public land. They assert that they believed they had a valid claim to the land and therefore had no reason to check the county records. They also controvert the statement quoted from Minnie Wharton's letter of March 15, 1955, and assert that she did not therein recognize federal title to the land, suggesting that all she sought by that letter was the physical indicium of title. They further assert that until she received the letter from the Bureau of Land Management on March 15, 1955, she had not realized that their occupancy of the land was in trespass and that there was no way of securing documents of title. They also challenge the finding of the decision below that: "the applicants cannot include periods of time beginning prior to 1949 ***". i.e., prior to the death of Curtis Wharton. Applicants assert their belief that they can include time prior to that event, since they lived on the land prior to that time, and, therefore, claim the land in their own right as well as his heirs. They point out that there is a pending lawsuit

by the United States in the United States District Court for the District of Oregon, Civil No. 70-106, to take possession of the land involved in this case. A deposition of Curtis Wharton in that proceeding indicates that he believed that it was their land because he was born "right on the place and all of my brothers and sisters-and there is [sic] nine of us. And we were born right there and lived there until we was got away from home." [sic]

We now proceed to consideration of the arguments advanced by the appellants.

It is well established that a claim or color of title must be established, if at all, by a deed or other writing which purports to pass title and which appears to be title to the land, but which is not good title. Peterson v. Weber County, 99 Ut. 281, 103 P.2d 652, 655 (1939); See Karvonen v. Dyer, 261 F.2d 671, 674 (9th Cir. 1958) and Henry D. Warbasse, Eugenia W. Warbasse, A30383 (August 19, 1965).

As was pointed out in Pacific Coast Co. v. James, 5 Alaska 180, aff'd, 234 F. 595 (1916), "[o]ne cannot make his own title."

The purpose and intent of the Color of Title Act was to provide a legal method whereby citizens relying in good faith upon title or claim derived from some source other than the federal government,1 who had continued in peaceful, ad

1 See Bernard J. and Myrle A. Gaffney, A-30327 (October 28, 1965), stipulated dismissal without prejudice, January 17, 1969, Bernard J. Gaffney and Myrle A. Gaffney v. Stewart Udall, Civil No. 3-66-22 (D. Minn.).

verse possession of public land for the prescribed period and had made valuable improvements, or had reduced some part of the land to cultivation, might acquire title thereto. Ralph Findlay, A-23522 (February 23, 1943). However, the statute was not intended to provide a means for obtaining a patent by the mere occupation of public land under a mere pretense of title or claim, or a title or claim which the claimant had knowledge or good reason to believe was not a good title. William Benton, A-23258 (November 14, 1942). See Jacob Dykstra, 2 IBLA 177 (April 22, 1971); Cf. Hugh Manning, A-28383 (August 18, 1960).

Good faith, in adverse possession, requires that a claimant 2 honestly believed the land was owned by him. In determining whether the claimant honestly believed that there was no defect in his title, the Department may consider whether such belief was unreasonable in the light of the facts then actually known to him. See Jones v. Arthur, 28 L.D. 235 (1899).

However, once it is established that the claimant knew the land was owned by the federal government and that he did not have a valid title, he is presumed to know that under the law he cannot acquire

2 The Department adheres to the view that a color of title applicant must show that the occupation of the land was founded on a reasonable basis for the belief that he and his predecessors in interest had title to the land. Hugh Manning, supra; Marion M. Pontius, A-27473 (November 7, 1957); Clyde A. Phillebaum, A-25933 (November 8, 1950); F. C. French, A-25924 (October 20, 1950).

title or any right to the land merely by continuing to occupy it. There can be no such thing as good faith in an adverse holding where the party knows he has no title. Dennis v. Jean, A-20899 (July 24, 1937), citing Deffeback v. Hawke, 115 U.S. 392 (1885). An applicant under the Act must show a rationally justifiable reason for believing that he owned the land. See Myrtle A. Freer et al., 70 I.D. 145 (1963).

It has also been held that the period of adverse occupancy subsequent to discovery that the tract is public land is not in good faith and may not be counted towards meeting the statutory 20-year occupancy requirement. Ephraim R. Nelson, A-25865 (June 6, 1950). The factor of good faith of the applicant himself is essential to the issuance of patent under the statute. Anthony S. Enos, 60 I.D. 329 (1949). See Lester J. Hamel, 74 I.D. 125, 129 (1967), aff'd, 226 F. Supp. 96, (N.D. Cal. 1963).

Where one person enters upon land in recognition of title of another, in order for the occupant to prevail under the doctrine of adverse possession it must be established that there was a repudiation of the relationship established and claim of title adversely to that of the titleholder, and repudiation and adverse claim must be clearly brought home to the titleholder, since the record of adverse possession will only begin to run from the time of notice of repudiation and if the adverse claim has been brought home to the titleholder.

Killough v. Hinds, 338 S.W. 2d 707, 710 (Tex. 1960). See POWELL, THE LAW OF REAL PROPERTY, § 1022 (1971). Cf. Johnson v. Szumowicz, 63 Wyo. 211, 179 P. 2d 1012 (1947).

An adverse possession based entirely on a mistaken belief that the tract is embraced within one's own holdings is inadequate under the law, since it lacks the basic element of a claim or title derived from some source other than the United States. John Johnson, A-25695 (December 30, 1949). See Christopher A. Merlau, A-26204 (December 18, 1951).

Applying the law to the facts of the case at bar, it seems crystal clear that the appellants had no rational basis for believing that they owned the land in issue. It strains our credulity to believe that the desert land entryman, Curtis Wharton, was so secretive about his personal affairs that his wife, Minnie E. Wharton (now Minnie E. Wharton Carlson) was unaware of the cancellation of the desert land entry. In any event, by her filings in the desert land entry case it clearly is established that she knew the land was public land and she had no basis for believing that the situation had changed. She and the other appellants stand in the shoes of Curtis Wharton. In Springer v. Young, 14 Ore. 280, 12 P. 400, 403 (1886), the court said:

It must be apparent that George W. Springer could not have retained the title to this land against the claim of this plaintiff, so far as yet appears; and, if

he could not, neither can the defendants, who have or claim no other interest therein than such as descended to them as heirs at law of their father, George W. Springer. They stand in the shoes of their ancestor. They take the title which the law casts upon them, affected with the same trusts and equities as it was when their ancestor held it.

See Whitcomb v. Provost, 102 Wisc. 278, 78 N.W. 432, 433 (1899). Cf. Edward T. Harris, A-27785 (January 19, 1959).

****

In Minnie Wharton's letter of January 4, 1956, to the Bureau of Land Management she stated that she "*** should be entitled to a deed or at least a chance to file on the place and then prove up She complained that she never “* * * found out what it would cost to file and prove up." If the letter is not deemed to be a recognition of federal ownership of the land, at the very least it signifies an awareness that title conceivably could be in federal ownership. In any event, Springer, supra, makes her late husband's knowledge attributable to her and the other appellants and also makes clear that "Neither husband nor wife can hold, adversely to each other, premises of which they are in the joint occupancy as a family." Id. at 404. Moreover, in the absence of record title in a claimant, persons who occupy premises of which they are purportedly joint owners are not ordinarily considered in adverse possession against each other. 82 A.L.R.2d 44n (1962). It follows that Minnie Wharton's occupancy until Curtis Wharton's death in 1949 was not an adverse

holding and that their children cannot maintain a claim adverse to their father until his death. Curtis Wharton, by filing the desert land application, recognized the federal ownership of the land in issue. Minnie Wharton, by virtue of her participation in the desert land entry proceedings, also recognized the paramount federal title. Their posture is similar to that of a tenant vis-a-vis his landlord. In Catholic Bishop v. Gibbon, 158 U.S. 155, 170 (1895), the Supreme Court stated as follows:

*** But lessees under a claimant or occupant. holding the property for him and bound by their stipulation to surrender it on the termination of their lease, stand in no position to claim an adverse and paramount right of purchase. Their possession is in law his possession. The contract of lease [or of desert land entry] implies, not only a recognition of his title, but a promise to surrender the possession to him on the termination of the lease [or entry]. They, therefore, whilst retaining possession are estopped to deny his rights. See AM JUR 2d, Landlord and Tenant § 109. Moreover, there is authority to the effect that a tenant may not set up adverse title in himself after the termination of the lease without surrendering possession. Id. § 120. See Springer v. Young, supra at 403-404.

We next proceed to consider the claim of the appellants other than Minnie Wharton. Their contention that, by virtue of having been born. on the land in issue and having lived there for many years, they held the land in good faith in adverse possession is not persuasive. Their fa

ther, who had recognized federal title by seeking to acquire the land under the desert land laws, died in 1949. His recognition binds them. See Springer v. Young, supra. As indicated, earlier, the appellants, other than Minnie Wharton, "*** claim the land in their own right as well as his [Curtis Wharton's] heirs."

It does not comport with reason that John Wharton, who was born on the land in 1933 and purportedly lived there until 1966 was, in his childhood, aware of, or concerned with, the ownership of the land. To suggest that he, in 1933 or shortly thereafter, as a baby or young child, was holding the land in open notorious adverse possession, suggests a faculty for comprehension in a baby or young child which flies in the face of reason. The fact that the other appellants, apart from Minnie E. Wharton and John W. Wharton had been born on the land and lived there until they were emancipated, simply does not lend any persuasive force to the assertion that they held the land in open notorious adverse possession.

We recognize the existence of authority for the proposition that one who has not reached his majority may acquire title to land by adverse possession, 3 AM JUR, Adverse Possession sec. 131. However, there must be an intention to disseise. In Bradstreet v. Huntington, 9 U.S. (5 Pet.) 399, 409 (1831) the Supreme Court illuminated this concept as follows: