27 Cal. 515 | Cal. | 1865
This is an action of ejectment to recover the possession of a portion of the lands formerly known as the Suscol Rancho. The premises are public lands of the United States, and have never been surveyed under the authority of Congress. The plaintiff relies for his title upon certificates of purchase issued October 17, 1862, by the Register of the State Land Office, upon the location and sale of school lands, selected in lieu of the sixteenth and thirty-sixth sections of the public lands of the United States. The United States Register of the proper land district refused to approve the selection, because the lands were unsurveyed. The defendants were in possession, they having entered upon the land in May, 1862, and each of them claimed a right of pre-emption under the Acts of Congress, to the respective quarter sections upon which he had entered.
It appears in the statement on the defendants’ motion for a new trial, that “ the plaintiff testified that one Dr. Page had caused the lands to be inclosed in 1861; that said Dr. Page was the real party in interest in this suit; that the plaintiff only held the lands in his name in trust for Dr. Page, and to secure him for the advances he had made; that said Dr. Page had replevied the crops raised on the land, and received the same for
The point upon which the appeal must turn has relation to the value and effect of the certificates of purchase issued by the State.
The defendants resist the claim of title set up by the plaintiff on the ground that the certificates of purchase, having
The seventh section of the Act of March 3, 1853, provides that such land shall be selected by the authorities of the State agreeably to the provisions of the Act of Congress, approved the 20th of May, 1826 ; and that Act provides that the lands shall be selected in sections and subdivisions of sections.. It requires no argument to prove that the survey of public lands of the United States into sections and subdivisions of sections can be made only under the authority of Congress. The survey is a part of the system devised by Congress for the disposal of the public lands; and the survey is as completely beyond the control of the State authorities as any portion of the system. The selection of a particular tract, as a subdivision of public land, in anticipation of the survey by the United States, would be no less wanting in authority than would the selection of a designated subdivision in anticipation of the grant by Congress. In Bernard’s Heirs v. Ashley’s Heirs, 18 How. 43, a selection of land had been made by the Governor of the Territory of Arkansas, under the Acts of Congress, authorizing him to select lands equal to ten sections, in tracts not less than a quarter section each, and to sell the same for the purpose of raising a fund to erect public buildings in the territory; and it was held that the selection that he had made of a quarter section within a township, the sur
A question quite similar in its character, in all its essential particulars, was before the Court in Terry v. Megerle, 24 Cal. 609, the plaintiff claiming title to the lands by virtue of the location upon unsurveyed lands, of “school land warrants,” issued by the State, under the Act to dispose of the five hundred thousand acres granted to the State, for the purposes of internal improvements. Mr. Chief Justice Sanderson, in commenting upon the provisions of the Act of Congress, says : “ There is no ambiguity in the' language used; on the contrary, the meaning is too plain and obvious to admit of doubt. The language is, ‘ located as aforesaid,’ that is to say, in parcels of not less than three hundred and twenty acres, conformably to sectional divisions and subdivisions and after the survey has been made. * * # The grant imposes conditions as to quantity, manner of selection and location, and time of location, and under it no title to any specific land can vest in the State until all of these conditions have been complied with. The State has no more right to select and locate lands before the survey has been made, than she has to locate it in tracts of one hundred and sixty acres each, or without regard to sectional divisions and subdivisions of the United States survey.” We are entirely satisfied with the construction announced in that case, of those provisions of the Act in question, and it is difficult to understand how it could be contended that the grantee of the State, of land selected under her sole authority, prior to the United States survey, thereby acquired the legal title, when it is capable of mathematical demonstration that his asserted title to any given acre of the three hundred and twenty acres selected and located for him by the authorities of the State, is liable to be defeated by the survey subsequently made by the United States.
In the case of Barry v. Gamble, 3 How. 32, one of the questions was the sufficiency of the location of a New Madrid
It may be admitted that, by virtue of the Act of Congress of 1853, the State became entitled to an amount of land equal to two sections in each congressional township, yet as the State did not, by virtue of that Act, acquire the title to any specified tract of land, and could not acquire it, until the survey had been made under the authority of Congress, it necessarily follows that, prior to such survey, she had no power or authority to confer upon a purchaser from her any right, title or interest in any specific parcel of such lands.
If the selection had been made after the survey, and it remained only subject to the approval of the Secretary of the Interior, the person claiming under the State might with more propriety say, in the language of the respondent, “ until the United States complain of it, or a question arises upon a patent issued by the United States, it is competent for this Court to uphold the selection made by the State,”- but if the selection is prior to the survey, and the defendant goes into possession, without a trespass upon the actual possession of the purchaser
The error assigned by the defendants, in ordering their testimony relating to their pre-emption claims to be stricken out, becomes immaterial, in the view we have taken of the case, and in the absence of a finding of the fact of the prior possession of the plaintiff or his grantor.
Judgment reversed and the cause remanded.
Mr. Justice Cürrey and Mr. Justice Sawyer expressed no opinion.