88 Cal. 591 | Cal. | 1891
This is an action to determine a contest arising in the state land-office as to the right to purchase from the state a certain section of swamp and overflowed land in Tulare County. Judgment went for plaintiff, and defendant appeals from the judgment, and from an order denying a new trial.
The court below found, among other things, that the land in controversy was not segregated by the United States to the state until October 14, 1884; that defendant Nagle’s application was made on December 14,1883, and filed in the state land-office on April 1, 1884,— all before the segregation; and that as the land was not subject to application before segregation, no rights attached by reason of the application, nor by reason of the subsequent approval and certificate of purchase made after the segregation, but based on said application.
Counsel for appellant argue very fully and ably that there is nothing to prevent the filing of an application to purchase swamp land before segregation; but the contrary was held in Garfield v. Wilson, 74 Cal. 175, and in the recent case of Wren v. Mangan, ante, p. 274, decided since the present case was submitted. Counsel attack the correctness of the conclusion stated in Garfield v. Wilson; but we are satisfied with that conclusion, and with its approval in Wren v. Mangan. We do not see
In the case at bar, the applicant undertook to make application for land described as a certain section 9; but how could he have known where section 9 was, or “ the exterior boundaries thereof,” before there had been an approved survey of even the township in which said section was supposed to lie? The lines of townships are “ created ” by the United States survey, and have no existence before it. (Robinson v. Forrest, 29 Cal. 318; Middleton v. Low, 30 Cal. 596.) Section 3445 of the Political Code is in accord with the doctrine heretofore declared by this court. It refers to the application described in section 3443, and evidently assumes that it applies only to segregated land, and provides that where lands have been
It is also urged, strenuously, by counsel for respondent that appellant’s application was void because it appears, and is found by the court, that appellant had never been upon and had never seen the land applied for; that therefore his statement in his affidavit that he “knows of his own knowledge that there are no settlers thereon” is necessarily untrue; and that the things required by section 3443 must not only be in the affidavit, but must be true. But it is not necessary here to determine this somewhat important question, because, for the reasons above given, the judgment must be affirmed.
The judgment and order appealed from are affirmed.
De Haven, J., Paterson, J., Harrison, J., and Garoutte, J., concurred.