thereof, were lost to the State. (Sec. 6, Act July 23, 1866.) Such an official list was made necessary as the basis of selection of land in lieu of those lost sections, and until it was furnished the right to select had not accrued, and the land in dispute was not subject to selection.

court:

MCKEE, J., delivered the opinion of the By the complaint in this case, the plaintiff seeks to charge the defendant as trustee of the legal title to a tract of land in Alameda County, known and described as the north half of the southeast quarter of section seven, township three south, range three west, M. D. meridian. A demurrer to the complaint was sustained by the Court below; the plaintiff declined to amend, and, final judgment having been entered against him, he appeals.

payment of the purchase price of the
land, caused to be issued and delivered to
him a patent therefor on the 15th of Aug-
ust, 1876.

Now it will be observed that the basis

7 id. 228; Garland vs. Wynn, 20 How. 6; Lindsey vs. Hawes, 2 Black. 554); but to entitle the claimant of a patent issued to another to equitable relief he must The plaintiff alleges that this decision show such a right to the premises deswas contrary to law, because he proved in cribed in the patent as in equity and the investigation of the contest, to the good conscience, and according to the satisfaction of the Commissioner of the laws of Congress upon which he relies, General Land Office, and the Commis- entitles him to the patent. Coming into sioner found that, in the year 1863, the a Court of equity, asking for the interState of California, by its locating agent, ference of equity, he must not only show selected and located the land in dispute in an equitable right to relief, but he must part satisfaction of the grant by the offer to do equity. He must show a reaUnited States to said State on the 16th son valid in conscience as well as an and 36th sections of land in each town- equitable title enforceable in a Court of ship in said State, under an Act of Con- chancery. gress entitled "An Act to provide for the survey of the public lands in California, of the claim asserted by the plaintiff, the granting of pre-emption rights therein, rests upon the Act of Congress passed Originally, as it appears from the com- and for other purposes," approved March July 23, 1866. By that Act, Congress plaint, the land formed a part of seven 3, 1853; and also in lieu of, and as in- undertook to confirm to the State all leagues of land embraced within the ex-demnity for, certain of said 16th and 36th selections of any portions of the public terior boundaries of a Mexican grant sections of lands in the State, or portions domain, made by her in part satisfaction named Las Pocitas; and it stood in that thereof, which had become lost to the of any Congressional grant, and which position until June 6, 1871, when it was State under the terms and conditions of she had disposed of to purchasers in good excluded from the grant by the confirma- the act of Congress; that the State, after faith under her laws. Certain lands were tion of the final survey of the ranch. it had so selected and located the land, excepted from such confirmation, among On July 1, 1871, the Surveyor-General sold and disposed of the same to the which were lands covered by a Mexican of the United States for the State of Cali- grantors of the plaintiff on the 17th of or Spanish grant at the time of the selec fornia, having surveyed in the field the February, 1864, to whom, on payment of tion. But if such lands were afterwards township within which the land was lo- the purchase price "pursuant to the law excluded from the grant, and became part cated, and sectionized and subdivided it, of the State," the Register of the State of the public domain of the United States, and constructed his survey into and upon Land Office issued and delivered a certifi- they were made subject to the selection a township plat, a duplicate of which he cate of purchase under and by virtue of and to confirmation when the United filed in the local land office in the district which the purchasers entered into posses- States surveys were extended over them. of San Francisco, within which the land sion of the land and continued in posses- (Huff vs. Doyle, 3 Otto, 558.) To this last was located; and the defendant, who was sion until September 24, 1870, when the class of lands the land in dispute belonged. then and had been in possession of the defendant intruded upon their possession, It was not surveyed by the United States land, residing upon and claiming it as a and from that date has continued in the until 1871, and the official plat of the surpre-emptor, presented and filed in the lo- undisturbed possession of the same. But vey was not filed in the proper land office cal land office his declaratory statement of the plaintiff and those under whom he until the 28th of June, 1871. On that day his intention to pre-empt the land under claims "some time in 1866," presented to the land became and was a part of the the pre-emption laws of the United States. the Register and officers of the local land public domain of the United States, and, Thereafter, and within three months after office of the United States, the State for the first time it was open for settlethe township plat had been filed, the plain- selection and location and their claim of ment as other public lands of the United tiff, who also claimed the land as a pur- title thereunder; and the same was by States, to the plaintiff claiming as a purchaser from the State of California, pre- the Register noted and entered in writing chaser under the State laws under the sented and filed in the same office a claim upon the tract-book of the local land Act of Congress, or to the defendant, to have the land certified over to the office, and upon the tract-books of the who was then in possession of it, claiming State for his benefit, pursuant to an Act the right to pre-empt it under the preof Congress entitled "An Act to quiet emption laws. (Rich es. Maples, 33 Cal. land titles in California," approved July 109; Mahoney vs. Van Winkle, Id. 448; 23, 1866. Newhall vs. Sanger, 2 Otto, 72.) When Upon these hostile and opposing claims Upon these proofs and findings the it became public land the claims to it of a contest arose, before the officers of the plaintiff claims that the land should have both the plaintiff and defendant depended Land Department of the United States, been certified over to the State for his upon the respective Congressional enactwhich was heard by the commissioner of benefit; and that he is now entitled to ments under which they were presented to the General Land Office, and determined the patent, which, upon the erroneous de- the land office. Neither of the parties adversely to the plaintiff; and the de- cision of the Commissioner and Secretary acquired any equitable right to the land cision, on appeal, was affirmed by the Sec- of the Interior, has come into the hands by the mere assertion of his claim. It retary of the Interior. By the decision of the defendant. was necessary for each to establish his the claim of the plaintiff was rejected; There is no doubt that where a party right by making the proof required by and, instead of certifying the land over has obtained from the United States a the law under which he asserted it; and to the State of California, for his benefit, patent to a tract of public land, which, in by showing a compliance with its terms as, under the act of July 23, 1866, the equity and good conscience, and by the and conditions. Originating, as did the plaintiff claims the Commissioner and laws which Congress has passed on the right of the defendant, in the possession Secretary of the Interior were bound to subject, ought, upon a true construction which he had of the land at the date of do, they, in alleged violation of the pro- of those laws, to go to another who estab- the filing of the official plat, his settlevisions of that Act, awarded the land to lishes a prior right to it, that a Court of ment gave him the status of pre-empthe defendant under the pre-emption laws equity will control the patent in favor of tioner under the pre-emption laws. of the United States, and made an order the prior equity and compel a conveyance the same time the Act of Congress of permitting him to enter it under his pre- of it to the owner of the equity (Johnson July 23, 1866, extended to a purchaser in emption claim, and, upon his entry and us. Towsley, 13 Wall. 72; Silver vs. Ladd, good faith from the State, whose right

General Land Office of the United States,
at Washington, whereby the officers of
the Land Department had notice of the
equitable rights of the plaintiff.

At

To constitute them such, as against the patentee of the United States, to whose title they assert a better right, it would be necessary for them to allege in their pleading that in the contest for the land before the Land Department they not only produced their certificate of purchase, but they also proved, and there was "found" the performance of the series of acts required by law to entitle them to the certificate and the steps which had been taken to complete the purchase from the State, so as to entitle them to a patent from the State. (Laughlin vs. McGarvey, 50 Cal. 169; Cadierque vs. Duran, 49 Id. 356; The Secretary rs. McGarrahan, supra.) Unless those things were proved and "found” they would fail to show in themselves that better right in favor of which a Court of equity would interpose to control the right of the patentee; and one who claims simply, and by no other right than as assignee of their void certificate of purchase, is in no better position.

originated in selection and location under been made on surveyed or unsurveyed chasers had not complied with the State the State laws, the same pre-emption land. If made on unsurveyed land the laws; and non constat that the State would rights. Both bona fide purchasers from complaint of the plaintiff fails to show have conveyed to them the land if it had the State and pre-emption claimants un- that the " proper authorities of the State" been selected. Averment of legal concluder the United States were placed by the had notified the Register of the proper sions in a pleading do not obviate the neAct on the same footing as to the acquisi- land office of the selection, and neither cessity for a statement of the facts which tion of title. The object of the Act, as that officer nor any other officer of the land are essential to constitute a right claimed has been said by our predecessors in Man- office was bound by the Act to certify the under a statute. It is true, that under the del vs. Toland, 38 Cal. 30," was to legal- land over to the State. The complaint is laws of the State the certificate of purize the possession of locators upon all also uncertain as to whether the claim of chase was made evidence of the legal title; unsurveyed lands until they have oppor- the plaintiff is asserted upon a selection but having been issued for land which was tunity to present their claims for deter- made on surveyed or unsurveyed land; not public land, and had not been surmination by the officers of the United for while the complaint contains averments veyed by the United States, the certificate States, as provided by the Act, and to en- which show that, at the date of the selec- was void. (Young vs. Shinn, 48 Cal. 26.) able them to maintain actions in the tion, the land had been surveyed in the Being void, it was not in itself evidence of Courts in relation to it." (Foscalina vs. field by the proper officer, and that a rec- that location on the land, and that purDoyle, 47 Cal. 437.) As residence and ord of the survey and plat thereof was chase of it from the State and payment for cultivation precede entry by a pre-emp- made and filed, but was afterwards with- it which would constitute them bona fide tioner, under the pre-emption laws, so drawn, it also shows that the land did not purchasers. selection and location upon public lands become part of the public domain until it are necessary to the claim of a bona fide was excluded from the Mexican grant, purchaser from the State under the Act; within the exterior limit of which it was cultivable lands belonging to the State are at the time of the alleged survey, and it grantable only to actual settlers. (John- was not subject to selection under the Act son vs. Squires, 55 Cal. 103.) The plain- of Congress until the filing of the official tiff admits that the State's selection was plat. void, and that by it alone he acquired no Besides, whether the land was surveyed right. He has, therefore, no equitable or unsurveyed, it was necessary for the comright to the land, unless the alleged plaint to show by proper averments that selection and location have been recog- the plaintiff, in the assertion of his claim nized and ratified by the provisions of to the land proved that he had purchased the Act of 1866, and he has shown it in good faith from the State; that it had such a compliance with its terms and con- been selected and located under the laws ditions as entitled him to the benefit of of the State as part of the surveyed or the Act. unsurveyed lands of the United States, which were subject to be so selected; and that he had complied with the terms and conditions of the Act of Congress which ratified the selection (The Secretary vs. McGarrahan, 9 Wall. 298); these constituted the elements of his asserted equitable right. But upon all of them the complaint is uncertain and insufficient. It is not alleged, nor does the plaintiff claim, that he purchased the land directly from the State, or that he ever located on it, or occupied or improved it, or paid or contracted to pay the State for it. On the contrary, it is alleged that the land was purchased from the State by his grantor or grantors, to whom, after making a payment pursuant to the laws of the State, which required a payment of twenty per cent. of the purchase, a certificate was issued under which they occupied the land until 1870, when they were dispossessed by the defendant, who has ever since continued in the unquestioned and undisturbed possession of the land. And, except so far as it may appear from the averments of the legal conclusions that they were bona fide purchasers under the law of the State, and that a certificate of purchase was issued to him, it does not appear from allegations in the complaint that they had complied with the laws of the State so as to constitute them bona fide purchasers from the State. It might be that the authorities of the State had refused to notify the Register of the land office of the selection of the land, as they were bound to do by the second section of the Act of Congress, just because the alleged pur

That Act undertook to confirm selections made by the State upon two classes of land: 1st, lands which had been surveyed by the authority of the United States, and 2d, lands which had not been so surveyed. Section 2 provides, as a condition precedent to confirmation of selections upon surveyed land, for a notice of such selection to be given by the "proper State authorities" to the Register of the United States Land Office. The law made the selection when this notice was given; and upon being given, it became the duty of the Register to investigate and determine the claim, and if found to be for land to which the State would be entitled by the grant under which the claim of selection is made, the proper officer of the United States Land Office was authorized to certify it over to the State, if the State had not already received the quantity of land that she was entitled to, under her grant, as provided by Sections 1 and 2 of the

Act.

But if selections had been made upon unsurveyed lands, such selections, when surveyed and marked off and designated in the field, gave, according to the provisions of Section 3 of the Act, to a purchaser in good faith under the laws of the State, the pre-emption rights of a settler on the unsurveyed lands; and upon the filing of the township plat in the proper local land office, the State claimant was allowed the same time as a pre-emptor to present and prove up his purchase and claim under the Act.

Now the alleged selection must have

Moreover, it does not appear by any allegation in the complaint when the assignment of the certificate of purchase was made-whether before or after the contest before the Land Department-nor is it alleged that it was proved or found that the plaintiff was the owner and holder of the certificate, or a bona fide purchaser of the land in good faith, and for a valuable consideration from the State.

He filed the complaint in this case in April, 1878, and all that he alleges on that subject is "that he is now the owner and holder of the certificate of purchase." Inferentially, therefore, he did not become the owner and holder of it until after the decision of the Land Department. If he purchased after that, he bought with notice of the possession of the defendant, of the judgment in his favor, and of the issuance of the patent; and as a purchaser of the certificate from the alleged original purchasers from the State, with notice of those things, he is not a bona fide purchaser from the State, within the meaning of the Act of Congress.

But whether the purchase of the void certificate was made before or after the contest before the officers of the United States Land Department, as the plaintiff had

never located on the land, never occupied to the District Court of the Twentieth may be, a copy of the judgment of the or improved it, never paid or contracted Judicial District for determination, under Court, that officer must approve the surto pay for it, to the United States or the Sections 3414, 3415, 3416 of the Political vey or location, or issue the certificate of State of California, it would be neither ac- Code. In pursuance of the order of refer- purchase or other evidence of title in according to equity nor good conscience to ence, the plaintiff commenced actions in cordance with the judgment. compel the defendant to convey to him the said District Court for the purpose of hav- Was the action a proceeding in rem? legal title. ing such conflicting claims determined," In rem is a technical term used to desigFurthermore, there is no allegation in and such proceedings were had in them nate proceedings or actions instituted the complaint that the land for which it that, on the first day of August, 1874, the against the thing, in contradistinction to is alleged the land in dispute was selected Court entered its judgment in one of the personal actions, which are said to be in has been lost to the State. Presumably, cases, whereby it was "ordered, adjudged, personam. Proceedings in rem include therefore, those lands were in place, and and decreed, that the said John F. Cun- not only those instituted to obtain decrees the land in dispute was not subject to se-ningham is entitled to purchase said land, or judgments against property as forfeited lection, or if subject to selection, the right and to have his application described in in the Admiralty or the English Exof selection had not accrued, because land his complaint for the purchase of said chequer, or as prize, but also suits against within the exterior limits of a Mexican land approved. *** That his location property to enforce a lien or privilege in grant did not, under the Act of July 23, thereof be approved," and directing the the Admiralty Courts, and suits to obtain 1866, become subject to selection until it Surveyor-General of said State," upon the the sentence, judgment or decree of other had been excluded from the grant, and filing in his office of a copy of said decree Courts upon the personal status or relathe lines of the survey by the United duly certified, to approve the said applica- tions of the party, such as marriage, diStates had been extended over it, and the tion and location of said Cunningham, and vorce, bastardy, settlement, or the like." Surveyor-General of the United States to issue to him a certificate thereof," etc. (1 Bouvier's Law Dictionary, 693.) Defor the State had furnished the State with On the fifteenth day of February, 1875, cisions in such cases are binding and an official list of the sections of land judgments were entered in the other cases conclusive, not only upon the parties actuwhich were within a reservation, or pri- to the same effect. On the fourteenth day ally litigating in the cases, but upon all vate grant, or settled upon, and, in conse- of August, 1878, one J. S. Manley filed an others. * * * Every one who can posquence thereof, were lost to the State. application for the same land, and on the sibly be affected by the decision has a (Sec. 6, Act July 23, 1866.) Such an twenty-sixth day of August, 1881, he right to appear and assert his own rights, official list was made necessary as the made a demand that the contest between by becoming an actual party to the probasis of selection of land in lieu of those Cunningham and himself be referred to ceedings," etc. (1 Greenleaf on Evidence, lost sections, and until it was furnished the proper court for trial. On the thirty- Sec. 525.) We are not prepared to say the right to select had not accrued, and first day of August, 1881, the Surveyor- that the proceeding under the statute in the land in dispute was not subject to General and ex-officio Register of the question is a proceeding in rem, although selection. (Sherman vs. Buick, 3 Otto, State Land Office made an order referring it may bear some resemblance to such a 209.) said contest to the Superior Court of proceeding. It follows that the plaintiff has not, by Santa Cruz County for trial. These are But are the officers of the State estopped his complaint, brought himself into such the substantial and material facts pre- thereby from selling the same land to an relations with the land in controversy as sented by the agreed statement, and the applicant who filed his claim pending the entitles him to call in question the de- following are the questions which are sub-action brought to determine the contest, cision of the United States Land Depart-mitted to us for decision: or subsequent thereto? This question ment awarding the land to the defendant, "1. Whether the case of Cunningham must be answered in the affirmative, as it or to control the patent which was issued vs. Crowley, above mentioned, is a proto him. ceeding in rem, giving the said Cunningham a right to purchase said land abso

Judgment affirmed.
We concur: Myrick, J., Sharpstein, J., lutely?
Morrison, C. J.

I concur in the judgment.

MCKINSTRY, J.

CUNNINGHAM VS. SHANKLIN.

2. Are the State and the officers thereof estopped from selling the same land to an applicant who filed his claim pending the said action or subsequent thereto ?

was by the court sitting in bank in the case of Langenour vs. Shanklin, 7 P. C. L. J. 140. Mr. Justice Ross, delivering the opinion of the court, says: "There would be no end to cases of this character if, after judgment had been entered in an action to determine the right of contestants to purchase, new parties can come in to prevent the enforcement of such judgment. Section 387 of the Code of Civil Procedure does not authorize an intervention under such circumstances. It having been Wright vs. Langenour, that the application of the petitioner for the purchase of the land in dispute was good and valid, and that the application of Wright therefor was invalid, it becomes the duty of the respondent, by virtue of Section 3416 of the Political Code, to approve petitioner's application."

3. Was the Surveyor-General authorized Land Law-Contest--Effect of Judgment of Court by law to receive the application of said upon Contest Referred-After a judgment has Manley et al., and did the reception and been rendered by the Superior court follow-filing of said application create such a ing the reference thereto of a contest to pur- contest in the office of the Surveyor-Gen- determined by the court in the action of chase land from the State, the Surveyor-General or Register of the State Land Office, eral is bound to obey such judgment. Such officer has no power to entertain another application to purchase pending such action or subsequent to the rendition of judgment in favor of a contestant, and make a second reference of the contest to the courts for adjudication.

Mandamus-Surveyor-General. In such case
mandamus will issue to compel the Surveyor-
General to take the necessary steps to issue to
the successful contestant a patent.
Morrison, C. J., delivered the opinion
of the Court:

as would authorize said officers to refer
the parties to Court to litigate their re-
spective claims, before Cunningham would
be entitled to his patent under Section
1519 of the Political Code?

4. Is the judgment in Cunningham vs.
Crowley an estoppel against proceedings
to sell to Manley?

5. Finally, is Cunningham entitled to his writ of mandate against said Shanklin, to compel him to take the necessary steps to This case is brought before us on an issue to him a patent, notwithstanding the agreed statement of facts, from which it Surveyor-General has certified that a conappears that contests have arisen in the test exists between Cunningham and Manoffice of the Surveyor-General, between ley, and has referred the same to Court? the plaintiff and other parties, respecting By Section 3416 of the Political Code it their rights to purchase certain lands be- is provided that "upon filing with the longing to the State. The same was referred Surveyor-General or Register, as the case

The facts of that case are similar to

those presented in the case now under consideration, and the principles announced therein are decisive of the present case.

The Surveyor-General was not, therefore, authorized to receive the application of Manley, and thereupon to direct a second reference for a second trial. It was his duty to obey the directions of the court, contained in the judgment upon the

H. C. Bostwick, Little Lilly and Mineral 5111, 5116, 5118, 5129, 5133, 5152, 5165, 5169, 5171, 5172, 5173, Point Lodes.

VOL. X.

COPP'S LAND OWNER.

WASHINGTON, D. C., SEPTEMBER 1, 1883.

174

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187 187 188

PAGE

ARGUMENTS RECEIVED. Adolph Munter, attorney for land claimants, Montgomery, Alabama, sends printed argument in Alfred Billingslea's Homestead Entry-act of June 15, 1880-involving a question of fraud.

W. K. Mendenhall, city, sends printed argument in Lead City Townsite Occupants versus Placer Claimants, involving character of land.

Same attorney sends argument in Ayers vs. Buell, timber culture application, on appeal from Commissioner's decision, July 15, LAND OWNER, page 122.

LAND PERSONALS.

No. 11.

CHIEF CLERK LUTHER HARRISON, of the General Land Office, has returned from his leave of absence among the mountains.

THE elaborate decision of the General

Land Office in the Eureka Springs Townsite case, published August 15, reflects credit on the Assistant Law Clerk, COL. J. W. LEBARNES, and indicates the discernment with which Commissioner McFARLAND selects his advisers.

JOHN H. ABRAMS, WILLOUGHBY CLARK, WILLIAM E. DELANEY, and SILAS A. SILLS, of Pembina county, Dakota, have been debarred as land attorneys.

THE new law offices of Redington & Hill, of this city, resemble the palatial apartments of a railroad magnate.

THE law firm of Tweed & Hancock, of Phoenix, Arizona, has been enlarged to in

clude J. W. CRENSHAW. See their card in the Land Directory.

YEAR'S INCREASE OF REAL
ESTATE VALUE IN NEW
YORK CITY.

The statement of the assessed value of property in New York City shows an increase of over $43,000,000 in the last year, the whole of which, and more, pertains to real estate.-N. Y. Times.

SPECIMEN PRICE OF LAND IN
NEW YORK.

The property on Broadway, New York, on which the well known New York Hotel stands has a frontage of 185 feet on Broadand Waverly places back to Mercer street way by 100 feet in depth on Washington in rear. This lot is now worth, and would in a moment, we have been assured, bring, 186 PUBLICATIONS FOR SETTLERS. at the very least, $1,500,000, or over $8,"Homes, Health and Pleasure in South- 100 a front foot. The building is of no ern California," by Newton H. Chittenden, value, and if the property was sold the 188 San Buenaventura, California. 8vo., 45 pp. building would at once be torn down and "The Valley of the Red River of the a new six or eight-story wholesale buildNorth and the City of Moorhead, Minne-ing would be erected. Broadway, below Issued by Board of Trade, Moor- Ninth street where Stewart's old retail ihead, Minnesota. 8vo., 64 pp. dry goods store used to be is now almost wholly devoted to wholesale business. Property for wholesale business does not bring as high a price as the best retail property. Lots on the best retail portions of Broadway, between the Fifth Avenue Hotel (at Twenty-third Street) and, say, Fortieth street, would bring twenty-five per cent. more than wholesale property. These facts will illustrate the great value of the best real estate in New York.— Magee's Circular.

IV

D. H. Talbot, Sioux City, Iowa..

Ellery C. Ford, Washington, D. C..

Sickels & Randall, Washington, D. C...

Henry N. Copp, Washington, D. C.....

W. J. Johnston, Washington, D. C....

Chas. & William B. King, Washington, D. C...
Walter H. Smith, Washington, D. C...
H. J. Frost, Washington, D. C.........

IV

IV

sota."

"Hope, Hempstead Co., Arkansas-Re-
IV sources and Advantages, etc." Hope Im-
migration Association. 8vo., 32 pp.
The above pamphlets can be obtained
free on application as indicated.

Riddle, Davis & Padgett, Washington, D. C...... IV

PAGE