152 P. 730 | Cal. | 1915
Plaintiff sued in ejectment. Judgment on the pleadings was entered in plaintiff's favor and defendants appeal.
The property involved is included within the resurvey by the United States of certain lands in Imperial County of which this court was concerned in the discussion of the issues presented by the appeal in the case of Nichols v. McCullom,
"The South half (S. 1/2) of the Southeast quarter (SE. 1/4), the Northeast quarter (NE. 1/4) of the Southeast quarter (SE. 1/4), and the Southeast quarter (SE. 1/4) of the Northeast *258
quarter (NE. 1/4) of Section thirty-six (36), Township fifteen (15) south, Range twelve (12) east, San Bernardino Meridian, containing one hundred and sixty (160) acres, and which said section thirty-six (36), is correctly described on the plat of resurvey of Township sixteen (16) south, Range twelve (12) East, San Bernardino Meridian, as 'reserved for survey of school section thirty-six (36), Township fifteen (15) South, Range twelve (12) east, (640).' " The pleading sets forth the fact that by certificate of purchase No. 14,900 dated August 27, 1900, the state of California sold the said lands to A. E. Dodson, who went into possession thereof and in 1904 conveyed his title to plaintiff; and that on March 11, 1911, the state of California granted said land to plaintiff. The payment of all taxes by plaintiff and his predecessors is alleged and the complaint also contains averments that plaintiff was ousted of possession by defendants in 1906 and that they refuse his demands for the restitution of the property. Defendants by their answer deny that any actual survey was made in Imperial Valley in 1856 and stigmatize the field-notes of Matheson purporting to apply to such a survey as "fictitious." They admit that in 1908, pursuant to an act of Congress of 1902, a resurvey was made of certain lands in Imperial County, but deny that the lands described in the complaint fall correctly into section 36 of any survey or that "tract 106" represents any school lands. In other words, they make the same contentions that were put forward by the defendants in Nichols v. McCullom,
All of the contentions of appellants are answered, adversely to their desires, by the opinion of this court "written by Mr. Justice Sloss and filed in the said Nichols case. As in that case, the defendants claim by virtue of a possession which began after the act of July 1, 1902, had authorized the Secretary of the Interior to cause a resurvey of certain townships to be made. Therefore the following language of that decision is entirely applicable to this case and is conclusive of the whole matter:
"If the act of 1902 has been rightly interpreted by us, there is no occasion to consider the argument of respondents to the effect that the decision of the Land Department of the government fixing the location of section 16 was erroneous, and that said section was placed by the new survey at a different place from that occupied by section 16 under the survey of 1856. The new survey superseded the old one. Parties going upon the land after the passage of the act, and with constructive knowledge of the fact that such survey was to be made, took the chance that such survey might establish that the land occupied by them was a school section, and not subject to entry as vacant lands of the United States."
The judgment is affirmed.
Lorigan, J., and Henshaw, J., concurred. *260