Allen v. Dake, No. 4394

No. 4394 | Cal. | Jul 1, 1875

By the Court, Rhodes, J.:

Action to determine a contest arising in the office of the Surveyor-General between three several applicants for the purchase of certain swamp and overflowed lands. Separate appeals were taken by Dake and Cox.

The District Courts have no jurisdiction to determine contests as to the right to purchase swamp and overflowed land, or as to the approval of a survey, etc., unless the contest arose in the office of the Surveyor-General. There could be no contest in respect to the approval of a survey, unless the survey had been made and returned to the Surveyor-General. There was no contest in the Surveyor-General’s office in respect to the application of Cox, of the date of August 25, 1870, for no survey was made by the county surveyor in pursuance of that application, and of course no survey was returned to the Surveyor-General.

Cox acquired no rights by reason of the application made in February, 1871, and the two surveys (each numbered five hundred and ninety) made upon such application; for the application, which was in fact made by the county surveyor for Cox, does not appear to have been authorized by Cox, and it is not found that it was sworn to by him.

In respect to the applications of Allen and of Cox, which were presented to the county surveyor on the 15th day of December, 1871, it is sufficient to say that the application of Allen must be preferred, because it was, in fact, first presented to the county surveyor.

After the survey, which was made in pursuance of the application of Allen, had been forwarded to the Surveyor-General for approval, Dake presented to the county surveyor his application to purchase the lands; and he now contests the application of Allen on the ground that the county surveyor did not discharge his duties as prescribed by law; that he failed to indorse on the application the date of its receipt, and failed to make and forward to the Surveyor-General the survey and field notes, etc., within the thirty days mentioned in the statute. It does not appear that Allen caused or procured such omission or delay, or that he was in default as to anything which the law required of him. The omission to make the requisite indorsement on the application, and the neglect in making and forwarding the survey, appear to have been due to the negligence of the county surveyor. Under such circumstances Allen cannot be held responsible for the omission of that officer to discharge the duties of his office as prescribed by law.

Judgment affirmed.

Neither Mr. Chief Justice Wallace nor Mr. Justice Mc-Kinstry expressed an opinion.