51 Cal. 12 | Cal. | 1875
The plaintiff claims title to the premises in controversy under a patent issued by the United States, May 20, 1873; and the defendant claims title under a patent issued by this State, as for swamp and overflowed land, March 25, 1867. If the title to the land vested in the State by virtue of the act of Congress of September 28, 1850 — known as the Arkansas Act—or by operation of the act of Congress of July 23, 1866 (14 U. S. Stats. at Large, 218), and proceedings had under that act, then the plaintiff’s patent was void; but if the title did not so vest in the State, the plaintiff’s patent is valid and vested the title in him.
It was not contended on the argument that the land was in fact swamp and overflowed land; but it is claimed by the defendant that the title vested in the State by operation of the act of July 23, 1866. The case was tried in the court below, and argued in this Court on the theory that the first section of the act is applicable to lands of this character, and that it was incumbent on the defendant to show that his grantor was a purchaser, in good faith, from the State. But counsel are wrong in both positions. It was unnecessary for the defendant to show that he was a purchaser from the State, for if the title vested in the State, by virtue of the act of July 23, 1866, the plaintiff’s patent was inoperative, for the want of title in the United States, and he could not recover in this action.
The first section of that act does not relate to lands which, had been segregated by the State as swramp and overflowed lands. The only section which purports to grant to the State—or in other words, to confirm such segregation—is the fourth section. That section provides for three classes
The certifying of the lands to the State did not transfer the title, because the Commissioner had no authority to certify any lands to the State, except those to which the act of Congress applied. The act of Congress of August 3, 1854, declares that such lists of lands shall be “perfectly null and void” when the lands are not embraced in the acts of Congress.
Judgment and order reversed, and cause remanded for a new trial.
Mr. Justice Crookett did not express an opinion.