Prentice v. Miller, 82 Cal. 570

Prentice v. Miller

82 Cal. 570 | Cal. | 1890

Gibson, C.

This was a contest referred to the superior court of Monterey County by the surveyor-general and ex officio register of the state land-office, to determine the respective rights of the parties to purchase certain school lands. Judgment passed for plaintiff, from which, and an order denying a new trial, defendant appeals. The pleadings are conceded to be in proper form and sufficient.

The appellant urges, in support of his appeal, that there is no evidence to sustain the fifth, sixth, and seventh findings, wherein the court, in effect, found that before plaintiff filed his application to purchase the land *572in dispute, it had been surveyed by the United States surveyor-general for California, who had filed an approved plat of such survey in the United States land-office at San Francisco, the office for the district within which the land lies; and that the register of the United States land-office had accepted the land for and listed and certified it over to the state, in part satisfaction of the grant by the United States to this state of the sixteenth and thirty-sixth sections of each township, for school purposes.

An application to purchase lands of the character in question cannot be made until after the township in which the same may be situated has been surveyed by the United States. (Pol. Code, sec. 3495; Medley v. Robertson, 55 Cal. 396.) This made it necessary for each contestant to allege and prove that the land applied for was surveyed by the United States at the time they severally sought to purchase it. (Rogers v. Shannon, 52 Cal. 99; Finney v. Berger, 50 Cal. 248.) The respective allegations of the parties in their pleadings in this regard are sufficient to meet this requirement.

In the certified copy of the order of reference of the surveyor-general, made pursuant to sections 3414 and 3415 of the Political Code, which was introduced in evidence by plaintiff without objection, is a recital which is the only evidence tending to support the above findings. It reads as follows: “On March 24, 1869, H. G. Rollins, register of the United States land-office for the San Francisco district, certified that there was no valid claim adverse to that of the state of California for all the above-described land.” While the recital, if objected to, would doubtless have been excluded, because it was not a matter required to be placed in the order of reference, and of which the certified statement of the register of the United States land-office would have been the best evidence, still it comes within the rule that inadmissible evidence, if admitted without objection, is sufficient proof of *573the fact to which it relates. (Morrell v. Morgan, 65 Cal. 575.) It is at most but slight evidence; but such as it is, it tends to show, and we think, in the absence of evidence to the contrary, does show, that the surveyor-general had obtained the statement from the United States land-office, showing that the land in question belonged to the state, in compliance with section 3409 of the Political Code, by which it is provided: “The surveyor-general must, after the survey of any township by the United States surveyor-general, obtain from the United States land-office a statement, showing whether or not the sixteenth and thirty-sixth sections therein belong to the state.” The statement, it is apparent, could not have been obtained until after the township containing the land applied for had been surveyed by the United States. We are unable, then, to say that there is an entire absence of evidence of the facts found, in order to sustain this contention of appellant. But the respondent is not obliged to rely wholly upon such evidence, as the allegations of his complaint, to which the findings assailed respond, are not denied by the defendant’s answer; and, as we have seen, being material allegations, they must therefore be taken as true. (Code Civ. Proc., sec. 462; Gilson v. Robinson, 68 Cal. 543.) In the case last cited, the general rule regarding this class of cases was well stated as follows: “In cases of this kind, each party is an actor, and must set forth in his pleadings, and show by his proofs, that he has strictly complied with the law, and by such compliance has become entitled to purchase the land. If he fails to do this, he can obtain no assistance from the courts.” (Citing Woods v. Sawtelle, 46 Cal. 389; Cadierque v. Duran, 49 Cal. 356; Christman v. Brainard, 51 Cal. 536; Lane v. Pferdner, 56 Cal. 122.) But the rule thus stated does not change the rule applicable to pleadings declared in the Code of Civil Procedure, supra. For we find in that same case, that one of the points presented by appellant was, that the trial court had no jurisdiction to *574try the case, because there was no proper and sufficient order of reference made by the surveyor-general, referring the contest between the parties to the court below for trial, as required by sections 3414 and 3415 of the Political Code.

The plaintiff, however, alleged in his complaint that he demanded of the surveyor-general a reference of the contest between himself and the defendant to the proper court for adjudication, and that thereupon that officer did refer it. A copy of the order of reference was attached to the complaint. The allegations were not denied by the answer, and it was accordingly held that a proper reference had been made so as to give the court jurisdiction of the case.

The appellant here on the trial, realizing that under section 3495 of the Political Code it was necessary for him to prove that at the time he made his application to purchase he was either a citizen of the United States or had declared his intention to become such, offered certain evidence to prove that at that time he was a naturalized citizen of the United States. The evidence was received conditionally by the court, and afterward, upon motion of respondent, stricken out. This ruling is the only other point presented. The evidence referred to consisted of an entry as a qualified naturalized voter in the great register of the county of Monterey; and of his own testimony, as follows: “I was born in France; came to the United States in 1850; came to New York; remained in New York City three months, and then went to Illinois, where I staid two years, and then went home to France; got my citizen’s papers in New York before I went to Illinois; I got naturalized in New York; lost my papers on my way home from France, by shipwreck.....I came to the United States under age.” This evidence was properly excluded. It was ruled in the recent case of Miller v. Prentice, ante, p. 104, as follows: “The evidence as to the citizenship of plaintiff is *575clearly insufficient to establish that fact. He swears he was born in France, and was naturalized in the city of New York, but has lost his naturalization papers.”

The naturalization of an adult alien, or one who has resided in the United States from his eighteenth year of age, is a judicial proceeding, and can only be effected in a court of record having a seal and a clerk, and must be entered of record. (U. S. Rev: Stats., secs. 2165, 2167.) And like any other judicial record, must be proved by the record itself, or a properly exemplified copy thereof, or by proof of its loss or destruction. (Charles Green’s Sons v. Salas, 31 Fed. Rep. 107.) There are, however, certain limitations to this rule, for after proper proof of the naturalization of the parents of alien children, who were under twenty-one years of age, and residents of the United States at the time their parents were naturalized, parol evidence may be received to prove the minority and residence of the children, in order to show that they are citizens (U. S. Rev. Stats., sec. 2172); and proof of naturalization may also be by the parol evidence of the party, in the form of an affidavit, in proceedings concerning mining claims, by virtue of section 2321 of the Revised Statutes of the United States; but the appellant does not come within either of these limitations. See generally, as to the two questions herein considered, the late case of Bode v. Trimmer, ante, p. 513.)

We therefore advise that the judgment and order be affirmed.

Belcher, O. 0., and Foote, 0., concurred.

The Court.

— For the reasons given in the foregoing opinion, the judgment and order are affirmed.