52 Cal. 378 | Cal. | 1877
It appears on the face of the pleadings that before the contest originated in the office of the Surveyor-General, a patent had issued to the defendant for that portion of the land in controversy which is included in section thirty-five. Under sec. 3414 of the Political Code, no contest can be made before the Surveyor-General in respect to land for which a patent has been issued. The Court below, therefore, properly dismissed the action as to that portion of the land which is included in section thirty-five.
The Court below in its decree finds as facts, first, that the defendant, in the year 1861, made an application to purchase the land in controversy, and that he renewed his application after the land was segregated and prior to the application of the plaintiff; second, “ that the defendant hath the legal capacity to purchase swamp land.” On the motion for a new trial, these findings were attacked on the ground that they were not justitified by the evidence. As to the forty-acre tract included in section thirty-four, we find nothing in the evidence tending to show that the defendant made an application tó purchase it in 1861, or at any time prior to March, 1873. If there was any evidence tending to support this finding, it was the duty of the
Judgment and order reversed and «cause remanded for a new trial.