40 Cal. 69 | Cal. | 1870
delivered the opinion of the Court, Croce-ett, J., Temple, J., and Wallace, J. concurring-
’ It was, among other things, held that tbe locator of a land warrant “must show that be is a purchaser in good faith under tbe statute. Of these facts, however, bis certificate of purchase is prima fade evidence, for it has been so declared by a statute of this State. It shows that the State has selected the land and sold it to a purchaser, and that he has made a payment thereon; that as against the State he has acquired an inchoate title — one which the State is bound to protect under her laws — thus satisfying, so far, the conditions of the first section of the Act of Congress. If the land falls within any one of the exceptions there stated, the defendants must prove it.” The defendants in this case claim that they have overthrown the prima fade effect of the certificate of purchase, by showing that the lands, in lieu of which the lands in controversy were selected, were in place at the date of the selection, and that the purchaser, therefore, was not a purchaser in good faith. The proof is that those lands were in place at the date of the Surveyor-General’s certificate — September 17th, 1869 — but there is no evidence that they were in place in 1861, the date of the location.
But if it will be presumed that those lands were in place in 1861, because they were in place in 1869, still that fact will not show that the purchaser is not a purchaser in good faith, within the meaning of the Act of Congress. The defendants assert that as many as seven different selections have been made, in lieu of one and the same parcel of a sixteenth or thirty-sixth section. It was because of blunders of that hind, that legislation of the character of the Act of July 23d, 1866, became necessary. Had the lands in lieu of which the selections were made, not been in place — that is to say, had they been within a reservation, a private grant, or the libe, and had the selection been made according to the mode prescribed, and from surveyed lands,
The northwest quarter of section 10, township 4 north, range 2 east — a part of the premises in controversy — was certified over to the State by the Commissioner of the Land Office. The date of the certificate is not given, but as no objection was taken to the evidence, and as the ground is not taken that the land was not certified over to the State before the commencement of the action, it will be presumed that it was done before that time. This made the purchaser’s certificate of purchase valid and effectual, and entitled him to a recovery as to that quarter section of land, the defendants having entered after the passage of the Act of Congress.
There is no evidence in the record that the southwest quarter of the same section — the remainder of the premises in controversy — had been certified over to the State. The second section provides that the proper officer of the State shall notify the Register of the proper Land Office (if the
Tbe record does not furnish the data for tbe apportionment in respect to tbe two quarter sections of land, of tbe damages recovered for tbe use of occupation of tbe premises. Tbe judgment must be reversed unless sucb damages shall be remitted.
Judgment reversed and cause remanded for a new trial, unless tbe plaintiff shall, within twenty days after tbe filing hereof, remit tbe damages recovered herein.
And it is further ordered, that upon tbe plaintiff’s remit