Rhodes v. Craig

21 Cal. 419 | Cal. | 1863

Field, C. J. delivered the opinion of the Court

Cope, J. concurring.

It is difficult to perceive upon what ground the order staying proceedings in this action can rest, except the bare possibility that the officers of the General Land Office at Washington may come to a different conclusion from that of the authorities of the State as to the validity of the location of the school warrant upon which the patent to Doll was issued. But even if such a conclusion should be reached, no defense based thereon could be interposed to the present action. Until an entry on behalf of the inhabitants of the town of Red Bluff is made, or a patent of the General Government is issued for the benefit of such inhabitants, the defendants will not be in a position even to contest the efficacy of the patent to Doll. As we said in Doll v. Meador, (16 Cal. 331) “ until some one appears prepared to trace title to himself from a common or paramount source, parties who are clothed with the solemn evidence of title furnished by the patent of the State may rest in security, without fear of any successful disturbance in the enjoyment of the property held by them, whether that property be a portion of the school lands or swamp lands granted to the State by the General Government.”

As appears from the report of the case from which this citation is made, the time within which, under the Act of Congress of May 23d, 1844, an entry could be made for the benefit of the inhabitants of the town of Red Bluff, had expired years before the patent to Doll was issued.

The difficulty, however, with the present case is that no appeal lies from the order of the Court. It is not an injunction against parties in another action; it is a simple order staying proceedings in the same action. The remedy of the plaintiff is not by appeal, • but by application for a mandamus to compel the Court to proceed.

Appeal dismissed.