Owens v. Jackson

9 Cal. 322 | Cal. | 1858

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring.

This was an action to "recover the possession of land claimed by the plaintiff, under a patent from this State. The land was sold and patented under the provisions of the act of the Legislature, of April 28th, 1855, entitled “An Act to provide for the sale of the Swamp and Overflowed Land belonging to this State.” (Wood’s Digest, 517.) The defendant demurred to the complaint upon the ground that it did not show that the land had been surveyed and patented to this State. The demurrer was sustained, and the plaintiffs appealed. .

The only question necessary to be determined is whether this State had the right to dispose of the swamp and overflowed lands granted to her by the act of Congress, of September 28th, 1850, prior to a patent from the United States, so as to convey to the patentee a present title as against a trespasser. ’

The first section of the act of Congress provides that “ the swamp and overflowed lands” within the State of Arkansas “ shall be, and the same are, hereby granted to said State.” By the fourth section, the provisions of the act are extended to other States, in which" such lands may be situated.

The language of the act is in the present tense “are granted,” and conveyed to the State a present interest in the lands. The lands granted are not described in the act by metes and bounds, but are designated by the description of “swamp and overflowed lands.” This description is sufficiently certain to give the State a present prima facie right.

It is true that the second section of the act of Congress makes provision for the issuing of a patent to the State, “ and on that patent the fee-simple to said lands shall vest in the State, subject to the disposal of the Legislature thereof.”

But this provision does not conflict with the view we have taken. The act of Congress describes the land, not by specific boundaries, but by its quality; and is a present legislative grant of all the public lands within the State, of the quality mentioned. The patent is matter of evidence and description by metes and bounds. The office of the patent is to make the description of the lands definite and conclusive, as between the United States and the State. (Summers v. Dickinson, April Term, 1858.)

Judgment reversed, and the case remanded for further proceedings.