43 Cal. 56 | Cal. | 1872
By the Court,
The controversy in this case is a contest arising under the provisions of the twenty-seventh section of “An Act to provide for the sale of certain lands belonging to the State.” (Acts 1863, p. 591.)
It appears that in December, 1866, Fowler presented to the County Surveyor of Solano County an application for certain tide lands in that county, which were described as “the one half mile water front donated to the San Francisco and Marysville Railroad Company by an Act of the Legislature of the State of California, approved April 24th, 1858.” Upon receiving this application, the Surveyor noted the same in his book of applications thus: “L. C. Fowler, Solano County: Ho. 8. Township 3 north, Ranges 3 and 4 west, Sections 19 and 24; fractions in east half of 24; fractions in west half of 19; Mount Diablo meridian.” A copy of the description, as thus noted, was indorsed upon the affidavit of Fowler, pursuant to Sections 28 and 29, and filed, along with the affidavit itself, in the office of the Surveyor of the county. It is claimed,. however, by the appellant, Hinckley, that the paper thus filed in the Surveyor’s office was a certified copy of the affidavit of Fowler, and not the
Subsequently the County Surveyor transmitted to the Surveyor General the new survey he had made for Fowler, under his second application of April, 1867, along with a copy of the plat, field notes, etc., accompanied by a notice to the Surveyor General that some fifty-nine acres included therein had been also embraced in the survey for Hinckley already transmitted. Fowler afterwards filed a protest in the office of the Surveyor General against the approval of the Hinckley survey, on the ground that under his original application he was himself entitled to purchase the whole of the land included in that survey; and the contest thus made up was thereupon referred to the Courts for decision.
1. There is no doubt that the application of Fowler, made in due form on the 13th day of December, 1866, to purchase these lands, was in every respect in accordance with law.
Its validity is assailed upon the ground -that a copy of the application, and not the original, was filed by Fowler in the office of the County Surveyor; but that objection has been disposed of already.
2. It is said that the first application of Fowler describes no lands whatever, and is, therefore, a nullity. We have seen already that it was an application for the water front, which had been donated to the railroad company by the Act of April 24th, 1858. A more exact description could hardly have been given, for the tract itself had been already accurately surveyed and platted by the railroad company, under the provisions of the Act; and the survey and plat so made constituted a record at the time of Fowler’s first application existing in the office of the County Recorder of Solano County. That it was a description well understood in the office of the County Surveyor is evident, for he proceeded to act upon it without' objection or hesitation. The Act of 1863 only requires the applicant to describe the land
3. The application of Fowler, thus made in accordance with law, gave him, as against the State, and, so long as the statute remained in force, a privilege to purchase the land he applied for.' As against the officers of the State, and all applicants for the same land subsequent in point of time, it conferred upon him a right to purchase, which could only be lost by his own failure to pursue the further steps which the statute had prescribed. The malfeasance or misfeasance of any of the officers could not deprive him of the benefit of his application, nor operate to postpone him to the claim of a subsequent applicant.
4. It is argued, however, that Fowler is concluded to claim the larger tract, because he knowingly accepted, as it is said, the first survey of five acres and a little more. The facts are, that upon discovering that instead of the sixty-five acres, for which he had applied, only some five acres and a little upwards had been surveyed, Fowler applied to the County Surveyor to correct the survey, and the latter declined the request, on the ground that he had done all the law required him to do, and, in connection with this refusal, the County Surveyor advised Fowler to begin de novo—and that, in his opinion, nothing else could be done. Subsequently, and in May, 1868, he paid to the County Treasurer a portion of the principal and interest upon the five-acre location. He testified that this was done because he had learned that the County Surveyor was advising other parties to enter upon the five-acre tract in default of the payment of this money to the County Treasurer. I see nothing, however, in this which would preclude Fowler from insisting upon his rights under the first application. It was only a very natural endeavor to avoid the possible loss of all that he had so far been able to
5. It is next insisted that the Surveyor General having approved the first application of Fowler to the extent of five acres and upwards only, it results that the contest here is confined to the application of Hinckley made in March, and the last application of Fowler made in April, 1867, and that Hinckley’s, being the prior of these two, should be held to be superior to Fowler’s. There is nothing in this point. Under the twenty-seventh section of the Act, when a contest is referred to the Courts for settlement, it is to be determined upon the principles of law and equity involved. The Court is to exercise its judicial authority in adjudicating the entire case as presented. It is not confined to the narrower measure of relief which the Surveyor General, in the exercise of mere quasi-judicial functions, in determining mere matters of fact, might award. Such was not the intent of the statute. Its purpose was to provide for the settlement of the rights of the parties litigant, at once and forever. The jurisdiction of the Court is as broad and effective as though one of the parties had already obtained a title to which the other had the better right. The Surveyor General is to determine only those contests in which the survey, “ or purely a question of fact,” is involved. But when a question of law only is involved, or one of law and fact, the parties are to be referred to the Courts for its determination, and in the Courts the ordinary rules of pleading and of evidence are to be observed, and judgment is to be rendered as in ordinary adversary proceedings.
Other, but minor, points are made which it is not necessary to notice in detail.
It is clear that Fowler by force of his application of December 13th, 1866, became entitled to purchase the land in
The judgment must be affirmed, and it is so ordered.