143 P. 69 | Cal. Ct. App. | 1914
This is a proceeding wherein the plaintiff sought and obtained in the trial court a peremptory writ of mandate, requiring the defendant, as surveyor general of California and register of the state land-office to approve the plaintiff's application to purchase from the state those certain lands described in his petition. From a judgment to that effect the surveyor general appeals.
The facts of the case are practically undisputed and are quite fully and clearly set forth in the brief of appellant. In the year 1869, an official survey was made by authority of the United States government of those sixteenth and thirty-sixth sections of the public lands which had been granted by the government to the state of California for school purposes, under the act of Congress of March 3, 1853. [
It will thus be seen that the first question for determination is the question as to whether, for the purposes of this proceeding, these lands are to be regarded as state lands, lying within the official boundaries of the said thirty-sixth section, and therefore open to purchase by the plaintiff. We think this question must be answered in the affirmative, upon the authority of the cases of Cragin v.Powell,
"If it shall appear to the surveyor general that the application is made in good faith, and that all of the facts stated in the application are true, and that the land applied for is subject to sale, he shall approve the application, otherwise he shall disapprove the same." (Pol. Code, sec. 3498.)
The simple reading of this section shows that the power of the surveyor general is neither as judicial nor as unlimited as he claims it to be. The three conditions upon which the section expressly states he shall act in his approval or disapproval of the application were all met by the plaintiff; his application was admittedly made in good faith; and all the facts stated therein were true; and, as we have seen, the lands applied for were, for the purposes of said application at least, lands of the state, under their last official survey. These things being true, the section of the code in question expressly says that the surveyor general "shall approve the application *169
tion." It is quite clear that this language leaves that official no discretion in the premises, and renders his act merely a ministerial one, and as such subject to the compulsions of a writ of mandate. The case ofMiddleton v. Low,
The appellant's final contention that the writ of mandate ought not to issue because of its effect in creating confusion between the state and federal authorities regarding the boundaries of their respective lands is without merit. The clear right of a citizen of the state to acquire public lands open to purchase, in the manner provided by law, must be enforceable by an appropriate proceeding, regardless of such consequences as appellant forecasts. Even if his fears are well grounded, the law has doubtless provided proper remedies for such confusion as might arise without the need of denying this plaintiff the present right to which he is clearly entitled.
The judgment and order denying defendant's motion for a new trial are affirmed.
Lennon, P. J., and Kerrigan, J., concurred.