46 Cal. 234 | Cal. | 1873
In June, 1853, one Isaac Thomas, being then the owner of school land warrant number one hundred and thirty-three, for three hundred and twenty acres of land, proceeded to locate his warrant upon the south half of a certain section fourteen, in conformity with the provisions of the Act of
“Warrant No. 133, State of California, 24th December, 1853.—I hereby apply, in behalf of the State of California, for the tracts described in this list as being selected for said State under the eighth section of the Act of 4th September, 1841.
“ISAAC THOMAS, Agent.”
“Land Office, at Benicia, 24th September, 1853.—I hereby certify that the foregoing list was filed in this office on the 24th December, 1853, and that the selections are correct, and that no valid conflicting right is known to exist.
“WM. W. GIFT, Register.”
This list and the warrant number one hundred and thirty-three were afterwards forwarded to the General Land Office, at Washington, where they remained, without approval or
“I have located the within warrant upon the south half of section fourteen, township five north, range one west, Mount Diablo meridian.
“I. THOMAS.
“December 24th, 1853.”
An imperfect copy of the list was made and retained in the Land Office, from whence it was produced at the time of the trial. In making entries of the selection upon the books of the office, the clerks in the Land Office, by some mistake, entered the selection as upon the south half of section twelve, and there was nothing, either upon the books or plats in the office, showing that there was any claim upon the south half of section fourteen until the location thereon by the defendant Jackson. In February, 1857, the defendant Jackson located two school land warrants, for a hundred and sixty acres of- land each, upon the south half of the same section fourteen, and such proceedings were thereafter taken to make effectual his location that in March, 1863, he secured from the State of California a patent, executed in due form, purporting to convey to him the said land in fee. In June, 1858, the plaintiff became the purchaser at Sheriff’s sale of all the right, title, and interest which Thomas had in the south half of the said section fourteen, and at the end of six months, no redemption being had, received a Sheriff’s deed therefor. On the 10th of February, 1870, the land in question was listed by the United States to this State. On the 8th of September, 1871, the Commissioner of the General Land Office addressed a letter to the Register of the Land Office at San Francisco, in which he inclosed the warrant number one hundred and thirty-three and the original list made December 24th, 1853, and also the warrants lo
The Court below found as a fact that Thomas did not on the 24th day of December, 1853, or at any other time, present to the Register of the Land Office the location of school land warrant number one hundred and thirty-three, named in the complaint, nor was such location ever accepted or approved by the said Register. It also found that the said land warrant was never filed in the office of said Begister at any time prior to the location by Jackson of his warrants in February, 1857.
Counsel for appellant now claims that these findings "are in denial of the most full, complete, and uncontradicted proofs.” The location referred to in the first finding isrihe location alleged to have been made in June, 1853. The complaint sets out that location with particularity, and then alleges "that subsequently, on or about the 24th day of December, 1853, said location was duly presented to the Regis
The objection to the second finding is also without support in the record. After setting out the presentation of the “said location” to the Register, on or about the 24th of December, 1853, the complaint alleges “that subsequently the said warrant number one hundred and thirty-three was filed in the office of the Register of the United States Land Office for the district,” etc.; and this allegation is not denied. The warrant was produced at the trial, and it was shown to have been recently received from the Commissioner of the General Land Office, but it bore no indorsement or mark showing that it was ever in the local Land Office, nor did that fact otherwise appear. Construing this allegation most strongly against the plaintiff, as the Court below must have done, there is nothing either in the pleadings or evidence in conflict with the finding.
In view of the before-mentioned facts a single question is presented for our determination: Did the making and filing of the list with its indorsements on the 24th of December, 1853, constitute a valid location of the warrant, so that the beneficial interest in the specific parcel of land sought to be taken thereupon vested in the locator?
By the eighth section of the Act of Congress of September 4th, 1841, there was granted to each of the States five hundred thousand acres of land; “ the selections in all of
It is settled in this State that no valid selection of any of these lands can be made until after they are surveyed by the proper officers of the General Government, nor of any specific parcel to which there is at the time a subsisting valid claim by preemption or otherwise; nor unless the selection is made in parcels, conformably to sectional divisions and subdivisions of not less than three hundred and twenty acres. (Terry v. Megerle, 24 Cal. 609; Grogan v. Knight, 27 Cal. 520.) It is equally clear that no valid selection can be made except in the manner prescribed by the Legislature of the State. Neither the Secretary of the Interior nor any officer of the Land Department of the General Government has authority to determine the regularity or sufficiency of the selections. (Megerle v. Ashe, 33 Cal. 83.) It is necessary that the selections be approved by the proper officers of the General Government, in order that it may be known that the land is subject to selection; but, as between two conflicting claimants under the State, neither the Commissioner of the General Land Office nor the Secretary of the Interior has power to decide. In considering the question in hand we therefore wholly disregard the order made by the Commissioner in September, 1871, canceling the locations made by Jackson. More than a year and a half before that order was made the Commissioner had exhausted his power in the premises in listing the land over to the State.
The suggestion is made that the patent was improperly issued to Jackson, because the land was not at the time listed to the State, and because no notice of his application for it was published as required by law. Whether the suggestion
It also claimed that the Court below erred in admitting in evidence the certificate of the Register of the Land Office at Stockton. It may have been error, but, if so, it is quite apparent from what has already been said that the plaintiff was in no way prejudiced thereby.
Judgment and order affirmed.
Mr. Chief Justice Wallace did not express an opinion.