47 Cal. 437 | Cal. | 1874
It is clearly established by the evidence that the defendants, when they entered upon the demanded premises, intruded upon the actual possession of the plaintiff, which he held as a tenant under Hough & Harlan. The defendants seek to justify their entry on the ground that the land was a part of the public domain of the United States, which was then subject to pre-emption; and that, being qualified pre-emptioners, they entered in good faith for the purpose of taking up and perfecting pre-emption claims. If the land was not subject to pre-emption, this defense must fail, and the defendants were mere naked intruders upon the actual possession of the plaintiff.
It appears from the findings that, in the year 1864, and before the land had been surveyed by the authority of the United States, the proper authorities of this State had issued to the assignors of the plaintiff’s lessors, certificates of • purchase for the land in controversy, under the statutes of California, in respect to the location and sale of lands dona
In Toland v. Mandell, supra, the Act of Congress of July 23d, 1866, entitled “An Act to quiet land titles in California,” (14 Statutes at Large, 215), was fully discussed, and the reasoning need not be repeated here. The conclusions reached were: First—That under said Act the holders of State selections of unsurveyed public lands, acquired the rights of pre-emptioners on unsurveyed lands, provided their purchases were made in good faith under the laws of the State, and their selections had been surveyed, marked off, and designated in the field, unless, at- the time of the pas
But the defendants contend that, at the date of the State locations, the land was within the exterior limits of a Mexican grant, not then finally confirmed and segregated, and that for that reason it was expressly reserved from location
Judgments affirmed.
Neither Mr. Justice Niles, nor Mr. Justice McKinstey, expressed an opinion.