63 Cal. 22 | Cal. | 1883
Ejectment. The plaintiff claims title to the demanded premises under a State patent issued to him September 17, 1875, upon an application made by him December 1, 1874.
The defendant claims under a State five hundred thousand acre land warrant location, made in October, 1853, under an act of the State legislature, approved May 3, 1852, providing for ,the disposal of the five hundred thousand acres of land donated to the State by the United States.
The land was not surveyed by the United States until 1866, and in 1867 the proper agent of the State selected and located the demanded premises (and other lands), in part satisfaction of the five hundred thousand acre grant made to the State by tho act of Congress, which land was listed to the State by the commissioner of the general land office, with the approval of the Secretary of the Interior, in 1870.
If the land in controversy had been surveyed by the United
That the act of Congress granting five hundred thousand acres of land to the State did not authorize it to select any land which had not been surveyed by authority of the United States is not controverted. And yet the act of the legislature of May 3, 1852, did provide for the location of school land warrants upon government lands before the same had been surveyed by the United States, and for the issuance of patents, in such manner and form as the legislature might thereafter direct, to those who so located any of said warrants.
As against the United States the locators of school land warrants upon surveyed or unsurveyed lands acquired no rights before the land upon which they located their warrants was listed to the State. The United States dealt with the State only. So that the only question in this case is what, if any, right the appellant acquired to the land in controversy as against the State and those who claim under it by virtue of a location made subsequently to that under which he claims.
The donation by Congress to the State was of five hundred thousand acres of land to be selected from lands of the United States after the same had been surveyed by its authority. Instead of waiting for such survey to be made die State proceeded to select and dispose of lands which had not been so surveyed. By so doing the State undertook to dispose of land to which it had not acquired, but to which it expected to acquire the title from the United States. The only obligation which the State thereby incurred, if any, was to convey to such locators the title to the lands located by them in the event of the same being thereafter listed to the State.
The Act of May 3, 1852, not only provided for the location of school land warrants upon unsurveyed lands of the United States, but provided for the issuance of patents to such locators
In the case before us the State, in 1852, sold a school land warrant which, in 1853, was located upon the land sued for in this action. In 1866 said land was surveyed by the United States, and in 1870 listed to the State in part satisfaction of the five hundred thousand acre grant. In 1874 the respondent made application to purchase said land with a school land warrant, and said application was approved by the Surveyor-General, and in pursuance thereof a patent was issued to respondent in 1875. Both purchases were made with school land warrants — one in 1853 and the other in 1874. The first was made in strict conformity with the provisions of a statute of the State then in force. But it is claimed that that statute, so far as it provided for the disposition of any part of the five hundred thousand acre grant before such part had been surveyed by the United States, was void. And this position is supported by the cases of Hastings v. Devlin, 40 Cal. 358; Hastings v. Jackson, 46 Cal. 243; People v. Jackson, filed June 16, 1881. And although this question was not necessarily involved in Terry v. Megerle, 24 Cal. 609; Megerle v. Ashe, 27 Cal. 322; Grogan v. Knight, 27 Cal. 516; Smith v. Athearn, 34 Cal. 506; Collins v. Bartlett, 44 Cal. 371; or Churchill v. Anderson, 53 Cal. 212, there are expressions to be found in each of them which indicate that the views of the court were then in harmony with the decision in Hastings v. Jackson, supra.
But we think this, case distinguishable-from Hastings v. Dev
In that case there had been a valid location as well as an invalid one made upon the land before the passage of said act. Congress could not and did not attempt to invalidate valid sales made by the State prior to the passage of said act. It simply confirmed to the State lands which had been previously selected by the State and disposed of by it to purchasers in good faith. If a valid selection and sale had been made before the passage of that act, the title of the purchaser in good faith required no confirmation, and could not be affected by any act of Congress or of the State legislature. This is too clear to admit of argument, and illustrates the difference between that case and this. In this case the State made the selection and disposed of the land to the appellant, a purchaser in good faith, before the passage of the act confirming to the State lands so selected and disposed of by it. And it does not appear that at the date of the passage of the act of July 23, 1866, there was any claim to the land adverse to that of the appellant herein. So that the appellant was in a position to reap the full benefit which that act conferred upon purchasers who, prior to the passage of said act, had purchased in good faith of the State lands donated to it by the United States.
The question upon which the decision of the case must turn is whether the appellant is in a position to defend his right of possession as against the respondent in an action of ejectment, under an answer containing nothing more than a general denial. If the legal title to the demanded premises had vested in the appellant before the commencement of the action, he could have shown that fact under the general denial.
The act of Congress to which Are have referred characterizes the transaction betAveen the State and the appellant as a disposi
The provision of the act of Congress is not so clearly worded as it might have been, but the intention, obviously, ivas to confirm the disposition which the State had made of lands to purchasers in good faith under the laws. And we must construe it according to the intention of Congress. And thus construed, it doubtless vested in those who had prematurely purchased from the State lands donated to it by the United States, the legal title to such lands.
In the Act of July 23, 1866, Congress starts out with the declaration “that in all cases where the State of California has heretofore made selections of'any portion of the public domain in part satisfaction of any grant made to said State by any act of Congress, and has disposed of the same to purchasers in good faith under her laws, the lands so selected shall be and hereby are confirmed to said State.” The intention clearly was to place the purchaser in the same position that he would have occupied if the State, at the time of his purchase, had held the title to the land purchased. And this view is strengthened by a clause in the third section of the act, where such a purchaser is referred to as “the holder of the State title.”
Sections 2 and 3 of the act do not in any way qualify the first clause of section 1. The confirmation contained in the first section is not made to depend upon a compliance with any of the provisions of the sections which follow it. The latter simply point out the methods by which the State may have the land listed to it by the Commissioner of the General Land Office. But it is nowhere enacted that neglect or failure to comply with those provisions shall in any way affect the grant contained in the first section.
Judgment reversed, and cause remanded for a neAv trial.
Morrison, C. J., Thornton, J., and McKinstry, J., concurred.
Myrick, J., McKee, J., and Ross, J., dissented.