58 Cal. 533 | Cal. | 1881
Action to quiet title. The appellant relies upon a patent of the United States, and the respondents rely upon a State patent for the land in controversy. The date of the latter is prior to that of the former, and if valid the latter must prevail. This appeal is from the judgment, which the appellant insists is not supported by the findings. The facts found, with two exceptions, are the same as those found in Huff v. Doyle, 93 U. S. 558, which were held to be sufficient to entitle the plaintiff in that action to recover.
The plaintiff in that action had acquired from the State a patent, based upon a selection, location, and certification in all respects like those upon which the patent under which respondents’ claim is based. Like the land involved in this controversy, the land involved in that was within the exterior
1. It is found in this case that the appellant, on the first day of March, 1876, obtained a patent for the land in controversy from the United States; and in that case it was not found that the defendants had ever obtained a patent from that source. But this is an immaterial distinction. The Court in that case held that the United States had, prior to 1876, parted with its title, and that the same had vested in the State. It is unnecessary to cite authorities to prove that a patent of the United States for land to which it has no title, conveys none.
2. It is found in this case that the land in controversy was situated within twenty miles of the line of the western division of the Central Pacific Railroad, and that the vacant odd-numbered sections of Government lands within that distance of said railroad were, on the 30th of January, 1865, withdrawn from sale, location, pre-emption, and homestead by order of the Commissioner of the General Land Office.
The vacant odd-numbered sections only were so withdrawn, and the land in controversy here is within an evero-numbered section. The even-numbered sections remained subject to pre-emption gnd homestead as before, and the third section of the Act of Congress of July 23d, 1866, upon which the respondents rely, declares that “ the selections made under the authority of the State shall have the same force and effect as the pre-emption rights of a settler on the unsurveyed land, and that the holder of the State title shall be allowed the same time, after the surveys are made and the plat filed, to prove up his purchase and claim as is allowed to pre-emptors under existing laws.” (Huff v. Doyle, 93 U. S. 558, 563.)
It is quite clear, then, that the relation in which the respondents’ grantor stood to this land, the same being within an even-numbered section, was that of a pre-emptor, and as such he had a right to prove up his purchase and claim.
Judgment affirmed.
Thornton, J., concurred.
Myrick, J., concurred in the judgment on the authority of Huff v. Doyle, 93 U. S. 558.