124 P. 1042 | Cal. Ct. App. | 1912
It appears from the verified petition filed herein that on the third day of October, 1901, the register of the state land office at Visalia, upon the payment of twenty per cent of the purchase price and interest, issued to one Samuel Brown a certificate of purchase for a certain section of school land then owned by the state and subject to sale; that on the day ensuing Brown transferred and set over said certificate to petitioner; that said certificate was duly recorded; that petitioner has made payment in full to the state for said land and all interest, taxes and costs of every kind, nature and description; that thereafter on October 6, 1910, one Kerr filed his application with the surveyor general, contesting the application of said Brown to purchase the said land, with a demand that the conflicting claims be referred for adjudication; that on the same day an order was entered by the surveyor general referring the contest of Kerr and Brown to the superior court of Kern county for trial and adjudication; that on November 3d Robert L. Perry made application to purchase the north half of said section, contesting also the purchase rights of Brown; that on November 10th one Spencer made application to purchase the north half of said section. That neither said Kerr nor said Brown, within sixty days after the order of reference, commenced any action in the superior court of Kern county with reference to said adjudication; that on December 7, 1910, one Chittenden filed his application for the purchase of the whole of said section, contesting the rights of all parties before named, and asking that the conflicting claims be referred to the superior court; that on December 7, 1910, after the filing of such application by said Chittenden, Kerr filed his application to purchase all *783 of said section, together also with another contest and protest against the application of Brown; that on December 31, 1910, one Charles Smithwick filed his application for the purchase of the south half of said section. That on the thirteenth day of January, 1911, an order was made by the said state surveyor general and the register of the state land office, as follows: "It is therefore ordered and directed, that the contest as set forth between the above-named R. D. Chittenden and Samuel Brown, be and the same is hereby referred, together with the conflicting claims of John P. Kerr, Robert L. Perry, Richard V. Dorsey, Charles Smithwick and Emmet L. Spencer, and of each of them, to the Superior Court in and for the County of Kern, State of California, for adjudication." That none of the applications of contesting claimants have ever been allowed or approved in any manner by the surveyor general, and that neither of said parties has paid any portion of the purchase price of the land referred to; that thereafter, on February 21, 1911, an action was commenced in the superior court of Kern county by Emmet L. Spencer against Brown and the other claimants, based upon the order of reference above referred to, praying for an adjudication that the application of said Brown be held illegal and void, and that the certificate of purchase so assigned and held by petitioner be likewise held illegal and void, and that Spencer's application be adjudged and declared a valid application for the purchase of said land; that thereafter petitioner demurred to the complaint and moved to dismiss said action upon the ground that the court had no jurisdiction to hear and determine the same, which said demurrer and motion to dismiss were overruled and denied. It is averred that the said superior court intends to and will, unless restrained by this writ of prohibition, proceed to the trial of said action and thus impose upon petitioner great costs and expense in the defense thereof; that the court has been divested of jurisdiction to hear and determine said action; that petitioner is a laboring man without means, and in order to properly present his defense it will be necessary, at great expense, to bring witnesses from a distance; that such trial will occupy many days or weeks, at much expense; that said land is of little value, except for the oil which it contains and such value is problematical; and accordingly this writ of prohibition is prayed for. *784
It is contended by petitioner that, notwithstanding the provisions of the constitution of this state, which provides that "lands belonging to this state, which are suitable for cultivation, shall be granted only to actual settlers, and in quantities not exceeding three hundred and twenty acres to each settler, under such conditions as shall be prescribed by law," the issuance of the certificate to Brown for six hundred and forty acres was an adjudication by a competent authority that the lands involved were not suitable for cultivation. This upon the assumption that a public officer performs his duty, andprima facie the lands were subject to sale in quantities exceeding three hundred and twenty acres in area, and, further, that the action sought to be maintained upon the order of reference was not brought within the time provided by statute; and, further, that under section 3499 of the Political Code, as amended March 13, 1911, [Stats. 1911, p. 345], the court is divested of jurisdiction to hear and determine the contest, or adjudicate with reference to said lands. This section as amended in terms provides that no contest of the character here mentioned, or made under any section of the code, "of any location or application to purchase any state school lands which have heretofore been, or shall hereafter be made and filed with the surveyor general or register of the state land office, or of any order of approval made thereof, or of any certificate of purchase issued thereon or pursuant thereto by such surveyor general or register, shall be filed, heard, determined, referred or allowed, unless such contest shall have been or shall be so filed, heard, determined, referred or allowed as provided in said sections of this code, within five years from and after the date on which such certificate of purchase may have been issued." Section 3495 of the Political Code specifies the matters and things which must be set forth and established by one desiring to purchase lands of the state, as a condition precedent to the issuance of a certificate of purchase, among which it is required that it must be made to appear whether or not the land is suitable for cultivation, upon the filing of which proof depends the right of the officers to issue the certificate of purchase for an amount of land in excess of three hundred and twenty acres. "The presumptions that the law has been obeyed, that the first applicant is innocent of the crime of perjury, and that official duty has *785
been properly performed, come to the aid of the defendant. In the absence of controverting proof these presumptions will prevail. The certificate is made prima facie evidence of title in the holder." (Bieber v. Lambert,
It is insisted, however, by respondents that, assuming everything hereinbefore said to be the law, nevertheless prohibition will not lie because the right of appeal from any decision made by the court is speedy and adequate. The solution of this question is not without difficulty. An apparent conflict seems to exist in this state as to the right to the writ where an appeal will lie, and it has been determined inLindley v. Superior Court,
The writ is, therefore, ordered as prayed for.
James, J., and Shaw, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 2, 1912.