38 Cal. 499 | Cal. | 1869
The complaint does not state the facts so clearly or accurately as it might, and in order to a better appreciation of the case, we shall state some of the leading facts within the issues made by the pleadings, in our own way, as they are
The plaintiff had judgment, and defendant appeals from the judgment and order denying a new trial.
The defendant demurred to the complaint, on tüe ground that it does not state facts sufficient to constitute a cause of action. . The demurrer was overruled, and this ruling presents the first question relied on to reverse the judgment.
We are compelled to say that we think the point well taken. The findings cover many issues not presented by the pleadings. It is not even averred in general terms that Moore, Owen or plaintiff possessed the qualifications necessary to entitle them to acquire a pre-emption right, hi or are all the facts, prescribed by statute to qualify them, stated. (Page v. Hobbs, 27 Cal. 486.) It is only stated that the several parties were free white citizens, over twenty-one years of age, and that they had not had the benefit of the pre-emption laws before. But it will be seen, by reference to the Acts of
It is not averred that Owen or Quinn ever took any steps to-acquire a pre-emption right other than to take possession of the land. It does not appear in the complaint that they did anything in time to vest a right, that either of them ever filed any declaratory statement or made any application to pre-empt the land, or that they ever intended to do so. Moore’s pre-emption right, if he ever had any, appears to have been extinguished, and nothing is shown by the complaint to have been acquired by Owen or Quinn. They could not play the part of the dog in the manger successfully, by not doing anything themselves, and prevent everybody else from doing something. On the other hand, there is shown a pre-emption right in defendant, Kenyon, recognized by the
We are strongly inclined to the opinion that the facts disclosed by the findings are also insufficient to entitle the plaintiff to relief. It appears by the finding, that there was a contest between the parties before the proper United States land officers, who had jurisdiction to hear and determine the contest between these rival claimants for the pre-emption right, and the determination was finally in favor of defendant. Now, the very matters in contest in this case, are the matters which formed the basis of the claims of the respective parties in their contest before the Land Department. They must necessarily have been determined in that contest. They are not transactions that occurred in the contest by which the Land Department was fraudulently imposed on, and thereby induced to give the preference to the wrong party, as is the case in most, if not all the cases cited by plaintiff as authority, but the transactions were before the contest, and were the very subject-matter of the investigation in that contest, and upon which the preference depended. What jurisdiction have the Courts of California to review the action of the Land Department, upon the very facts which formed the basis of the claims of the respective parties ? While we do not deem it necessary or proper to determine this matter finally upon the case as now presented, we
Judgment and order reversed, and the cause remanded, with directions to the District Court to sustain the demurrer.