VOL. I.

MAY 18, 1878.

Legal Notes.

No. 8.

IMPORTANT CASES.-Some important cases are reported in this issue, and which have demanded extra time and effort, as well as space, hence, we feel that our readers will appreciate, and grant a little indulgence.

Our "Land Decision" department has yielded to the Supreme Court Decisions,-which we rank as of first consideration in the RECORD. Other important matter is awaiting a chance in. The 8 numbers of the RECORD now issued contain 90 decisions of our Supreme Court-23 more than have appeared in any other journal.

REHEARING.-Motions made for rehearing, and stay of proceedings granted, in case of Robinson vs. Gleeson,-reported in RECORD No. 5; and Wanzer vs. Somers,-in RECORD No. 6; also, in Wiggin vs. McFarlane, People vs. S. P. R. R. Co., and People vs. Hooper et al.

TO THE POFESSION.- Could not all the members of the bar, when getting their briefs and transcripts printed, get an extra copy to send and file in the RECORD office, and thus very much facilitate our preparation of the "Statements of Facts?" We will always print an extra copy for our customers -without extra charge.

PERSONAL. Our live friend, J. W. Rose, Esq., of Healdsburg, gave us a call on Monday, 13th ;and Isaac Wright, Esq., of Oakland, shone in upon us on Tuesday, 14th. Let all our friends remember not to forget us when in town. The RECORD office is always open.

F. W. Lawler, Esq., has been appointed Commissioner of the Twelfth District Court.

Appeal from the First District Court-Santa Barbara County.
WALTER MURRAY, Judge.

SCHOOL LAND APPLICATIONS-PRIORITY OF.-He who first files application for
State School Lands, ( 16th and 36th Sections,) after the actual survey--
the survey in the field--approved by the Surveyor General,-is enti-
tled to a certificate of purchase. The identification of the land to the
State is determined by the actual survey, so that an application attaches
immediately upon survey, though the certificate of purchase may not is-
sue until the notification of acceptance by the Register.

C. C. Oakley plaintiff and respondent vs. James F. Stuart defendant and appellant (Philip Cosgrove, James Byrne, and James B. Linebaugh made defendants by order of court,)—and Isaac Miller, intervenor.

STATEMENT OF FACTS.

This is a contest for the right to purchase from the State, a half section of school land-( 16th section); and its decision turns upon and establishes the question of the validity of an application to purchase this class of State lands as soon as sectionized in the field, and previous to the filing of the official map or plat of the survey in the U. S. Land office for the district, in which the land is located.

The State acquired the title to the land by act of March 3d, 1853, and the survey was as follows:-Township lines run in June 1854;-Section lines January 16, 1861;—and survey approved by the Surveyor General of the United States for California, on April 9, 1861, and a map or plat of same filed in his office during April, 1861, and a copy filed in the office of State Surveyor General. But an official map or plat was not filed in the U. S. Land office at San Francisco until April 11th, 1873,-twelve years later. Cosgrove & Byrne had made a joint application (on January 9, 1869), to purchase the whole section but they conveyed all their interest to John W. Dwinelle on April 16, 1873, (and filed an abandonment on February 1, 1875,) and Dwinelle conveyed same to James F. Stuart on May 7, 1873. James B. Linebaugh made an ap plication on January 6, 1871, to purchase the half section now in contest, which was approved April 16, 1874, and a certificate issued by the State Land Register on April 25, 1874. On April 12, 1873, the day after the plat was filed in the U. S. Land office at San Francisco, James F. Stuart filed his application in the State Surveyor General's office for the said land, and on April 25, 1873, Linebaugh conveyed to Stuart all his interest by deed, so that now Stu

art had acquired all outstanding claims, or interests, and a certificate of purchase was issued to him on August 21, 1873.

He then assigned his said certificate to Isaac Miller, on September 27, 1873, --having already deeded the same on 22d.

Miller went into possession in the fall of 1873, and has so continued to occupy and cultivate ever since.

And now, C. C. Oakley, plaintiff, made application on February 24, 1874, and again on May 6, 1874, to purchase the same land, claiming that it was vacant and unoccupied in the spring of 1872 when he used some of it for pasturing stock, and afterward occupied a large part of it, and between January and April 1873, ditched and fenced, and sowed grain, and has occupied till now; and that Miller took possession of a part of it in the fall of 1873. Upon trial, and finding of facts, Judge Murray's conclusions of law were, that the applications of Stuart & Linebaugh were void,--and that of Oakley legal, entitling him to the purchase of the land, --on the authority of Rooker vs. Johnson, No. 4,359, of October, 1874; and that adverse possession appeared when Stuart's application was filed.

Judgment for plaintiff, with costs.

Appeal taken May 6, 1865;-and this is now upon a rehearing.

W. C. Stratton, attorney for plaintiff and respondent.

Eugene Fawcett, and R. M. Dillard, and Edward R. Taylor, attorneys for defendants, (and appellants,)

James F. Stuart, in propria persona, and H. H. Haight, for appellants.
Gray & Haven, of counsel for Isaac Miller, intervenor.

OPINION BY THE COURT.

The only material question is the validity of Linebaugh's application.

The statute provides: "Whenever a resident of this State desires to purchase any portion, not less than the smallest legal subdivision, of the 16th or 36th section of any township, which has been surveyed by authority of the United States, he shall make an affidavit," etc.

It would seem to have been the practice of the State Land Department, since the passage of the law, to treat as properly filed, applications filed at any time after survey in the field, and the approval thereof by the Surveyor-General. This practice accords with the natural meaning of the words of the statute, and unless it has been proved to be productive of confusion, or promotive of litigation, or otherwise to conflict with the policy of the law, we see no reason why the courts should depart from the construction given to the Act by those immediately charged with its administration.

The question was not involved in Rooker vs. Johnson, (49) Cal., 3,) for no one of the several applications in controversy in that case was made intermediate the survey in the field

(the exact time of which did not appear) and the filing of the official plat in the Land Office.

Some of the applications under consideration in that case were filed in 1868, which was before the survey was made in the field. All the other applications were made after June 4, 1869-the day on which the plat of the survey was filed in the Land Office.

It is apparent, therefore, that the question made here was not presented, and could not have been presented for consideration in that case.

Section 12 of the act of 1868 provides that when an application is made, the Surveyor-General shall communicate with the proper United States Land Office, and ask that the land applied for shall be aecepted in part satisfaction of the grant to the State, and only after the Register has notified the State Office of the acceptance of the land, can the State issue a certificate to the purchaser. The Register may not be able to inform the State Officer that he has accepted or rejected the land until after the official survey has been returned to his official custody. The State officer can issue the certificate only after the notice of acceptance, because the State law provides that he shall issue the certificate only on receiving notice from the Register. All this does not prohibit the resident from making his application to the State before the approved plat has been filed with the Register. The State may dispose of the land it owns in the present or in the expectancy, in such manner as the Legislature may deem proper. Whether the application is made before or after the filing of the approved plat, the applicant's right to the land depends on the contingency that the Register shall accept it as part of a grant to the State. When the land has been accepted and the proper State officer notified, it is his duty to issue his certificate to the applicant who first-after approved survey in the field-made application by affidavit in due form.

The "application" by the citizen or resident, and the recognition by the United States officer of title in the State, are not contemporaneous. From the very nature of the proceedings,the rights of all applicants must remain in abeyance until the application has been accepted by the Register; then the right to a certificate attaches in favor of the applicant first in time after the survey. No inconvenience, therefore, can arise from according to the statute the meaning heretofore understood by the officers of the State Land Department to be the correct meaning.

The only question here is, which of several applicants was entitled to a certificate, when the State office became authorized to issue a certificate by reason of a notification from the Register that the application for the land had been accepted as portion of a grant to the State.

We find little difficulty in answering. He who filed first after the actual survey-the survey in the field-approved by the Surveyor-General.

We are the more thoroughly convinced that the views above expressed are correct from the circumstances, that, under the public land system and practice of the Land Department of the United States, lands have always been treated as surveyed when the lines were run in the field and monuments cr marks established by the proper surveyor."

By the Act of Congress of March 3,1853, (1 Lester p.207,sec 6,) the general preemption law of September 4, 1841, was first extended over California. (1 Lester's Land Laws, pages 61 to 63, sections 10 to 15 inclusive.) This law allowed preemptions only on surveyed lands, and in the eleventh section is the following clause: "When two or more persons shall have settled on the same quarter section of land, the right of preemption shall be in him or her who made the first settlement."

After this law was passed, it became necessary to settle the question when lands of the United States should be "treated as surveyed," and on the 15th of September, 1841, the Commissioner of the General Land office issued his circular to Registers and Receivers of the United States Land Offices, upon this point, as follows: "The approval of the plat is the evidence of the legality of the survey; but in accordance with the spirit and intent of the law, and for the purpose of bringing the settler within its provisions, the land is to be considered as surveyed when the requisite lines are run in the field and the corners establishedby the Deputy Surveyor." (1 Lester, page 364.)

Hence, whenever a map of the survey of a township is filed in the United States Land Office, descriptive field notes of the survey of said township are required to be filed with said map, (see I Lester, pages 722-724, for map and instructions); and in case a contest arises between two settlers who settled on the land after the survey and before the map was filed in the Land Office, the Register and Receiver can refer to the map and descriptive field notes, and ascertain when the land was surveyed in the field, and which of the two settlers first settled after said survey in the field, so as to award the land to