60 Cal. 118 | Cal. | 1882
This case is brought before us on an agreed statement of facts, from which it appears that contests having arisen in the office of the Surveyor General, between the plaintiff and other parties, respecting their rights to purchase certain lands belonging to the State, the same were referred to the District Court of the Twentieth Judicial District for determination, under Sections 3414, 3415, and 3416 of the Political Code. In pursuance of the order of reference, the plaintiff commenced actions in said District Court for the purpose of having such conflicting claims determined, and such proceedings were had in them, that, on the first day of August, 1874, the Court entered its judgment in one of the cases, whereby it was “ ordered, adjudged, and decreed, that the said James F. Cunningham is entitled to purchase said land, and to have his application, described in his complaint for the purchase of said land, approved. * * * That his location thereof be approved,” and directing the Surveyor General of said State, “upon the filing in his office of a copy of said decree, duly certified, to approve the said application and location of said Cunningham, and to issue to him a certificate
1. "Whether the case of Cunningham v. Crowley, above mentioned, is a proceeding in rem or in the nature of a proceeding in rem, giving the said Cunningham a right to purchase said land absolutely ?
2. Are the State and the officers thereof estopped from selling the same land to an applicant who filed his claim pending the said action or subsequent thereto ?
3. Was the Surveyor General authorized by law to receive the application of said Manley et al., and did the reception and filing of said application create such a contest in the-office of the Surveyor General or Register of the State Land Office, as would authorize said officers to refer the parties to Court to litigate their respective claims, before Cunningham would be entitled to his patent under Section 1519 of the Political Code ?
4. Is the judgment in Cunningham v. Crowley an estoppel against proceedings to sell to Manley ?
5. Finally, is Cunningham entitled to his writ of mandate against said Shanklin to compel him to take the necessary steps to issue to him a patent, notwithstanding the Surveyor General has certified that a contest exists between Cunningham and Manley, and has referred the same to Court ?
By Section 3416 of the Political Code it is provided that “ upon filing with the Surveyor General or Register, as the case may be, a copy of the judgment of the Court, that officer must approve the survey or location, or issue the certificate of purchase or other evidence of title in accordance with such judgment.”
But are the officers of the State estopped thereby from selling the same land to an applicant who filed his claim pending the action brought to determine the contest, or subsequent thereto? This question must be answered in the affirmative, as it was by the Court sitting in bank in the case of Laugenour v. Shanklin, 57 Cal. 70. Mr. Justice Boss, delivering the opinion of the Court, says: “There would be no end to cases of this character if, after judgment had been entered'in an action to determine the right of contestants to purchase, new parties can come in to prevent the enforcement of such judgment. Section 387 of the Code of Civil Procedure does not authorize an intervention under such circumstances. It having been determined by the Court in the action of Wright v. Laugenour, 55 Cal. 280, that the application of the petitioner for the purchase of the land in dispute was good and valid, and that the application of Wright therefor was invalid, it becomes the duty of the respondent, by virtue of Section 3416 of the Political Code, to approve petitioner’s application.”
The facts of that case are" similar to those presented in the
The Surveyor General was not, therefore, authorized to receive the application of Manley, and thereupon to direct a second reference for a second trial. It was his duty to obey the directions of the Court, contained in the judgment upon the first contest, and therefore the plaintiff is entitled to a writ of mandamus.
Let the writ issue as prayed for.
Sharpstein and Thornton, JJ., concurred.