due; and, in like manner, shall keep separate and distinct records of all other lands to which the state is now or may hereafter be entitled, by any act of congress, or by virtue of her own sovereignty, either for common school, internal improvements, university purposes, or any other specific object or purpose what

soever.

ART. 309, Sec. 6. When any county surveyor, or any other agent of the state, shall survey or locate, in accordance with law, for parties requiring the same, any portion of the domain of the state, it shall be his duty to transmit duplicate copies of the survey, or description of the same, to the surveyor-general of the state, within ten days after such survey or selection shall be made, and when, upon examination, the surveyor-general shall find such survey or description to be in accordance with law, it shall be his duty, as soon as practicable, to return one copy of the same, with his approval indorsed thereon, to the county surveyor or locating agent, for the use and benefit of the purchaser; he shall, also, transmit one approved copy to the register of the land office of the state.

ART. 310, Sec. 7. The purchaser, or purchasers, of lands of the state, under the provisions of any act that has been or may be passed, shall present such plat and field notes to the county treasurer, approved by the surveyor-general as aforesaid, and at the same time shall pay to the county treasurer such price for the land described as has been or may be fixed by law, and take from said treasurer duplicate receipts for the same, and have such receipt recorded in the office of the county auditor immediately upon the receipt of the same; and it shall be the duty of the county auditor to certify a copy of said receipt to the register of the land office within ten days from the date of the record of the same.

ART. 311, Sec. 8. It shall be the duty of the county treasurer of each county to pay over to the treasurer of state, at the same time and in the same manner as state revenues, all moneys, controller's warrants, or other indebtedness of the state, received by him as payment for any lands sold by the state, and shall take the state treasurer's receipt for the same, which receipt shall be countersigned by the register, and shall at the same time furnish to the treasurer of state a certificate, showing the name of the purchaser, together with a brief description of the land, the number of acres purchased, and price per acre, and whether paid in money, controller's warrants, or other evidences of indebtedness, describing the same, and if several, the amount of each.

ART. 312, Sec. 9. When the register shall have countersigned the receipt of the state treasurer, it shall be his duty to enter the sale upon the map and proper books of his office, and then to issue to the purchaser a certificate of purchase, bearing the seal of his office, properly describing the tract sold, the amount paid, and the amount due, and when payable, with other particulars of sale, and stating that when payment in full has been made, the party purchasing, his heirs, or assigns, will be entitled to a patent, provided the land has been confirmed to the state by the general government, but if default is made in making such payment, the tract will revert to the state, and all previous payments be forfeited. Such certificates, and all rights acquired thereby shall be subject to sale and transfer,. by deed or assignment, executed and acknowledged before any officer authorized to take acknowledgments of deeds, or before the said register. Full entries of all sales made and certificates issued shall be kept by the said register in proper books of his office.-[Am. April 16, 1859. R. S. St. 1858, 127.

ART. 313, Sec. 10. All subsequent payments shall be made to the county treasurer, who shall indorse the receipt therefor upon the certificate of purchase, and the receipt shall be recorded in the office of the county auditor, whose duty it shall be to certify the same to the register of the land office, in the same manner as provided for in first payments.

Sec. 11. Whenever final payment shall be made for any tract so sold, and after the same shall have been confirmed to the state by the general government,,

it shall be the duty of the said register, upon the surrender of the original certificate of purchase, to prepare a patent for the same, conveying to the party entitled thereto, according to evidence filed in his office, all the right and title of the state to said land, which patent, after being signed by the governor, countersigned by the said register, and authenticated by his official seal, shall be recorded in full in books kept in his office.

ART. 314, Sec. 12. The register shall charge the state treasurer with all moneys received by him for payment for lands, particularly showing to what funds said moneys belong; and on the first Monday of every month he shall certify said accounts to the controller of state, and it shall be the duty of the controller and treasurer to keep separate and distinct accounts of all moneys received or disbursed upon account of each kind or description of land granted to or belonging to the state, according to the object for which the grants were made, or to which the proceeds of sale may be applicable.

Sec. 13. The register shall have a seal of office bearing such inscription and device as the governor may direct, and copies, or extracts of any documents, papers, or records, of his office, duly authenticated by him, under said seal, shall have the same effect and efficiency in the courts of the state as the originals would have.

ART. 315, Sec. 14. The said register shall have a salary of five hundred dollars per annum, payable monthly, and be entitled to appoint one clerk in his office, who shall receive for his services such salary as may be fixed by law, and the proper officers of the state be, and the same are hereby, authorized and required to pay the same, and such contingent and other expenses of the office of said register as may be allowed by law. The register shall be entitled to a fee of fifteen cents per folio for all copies of papers furnished by him, to be paid by the party applying; and, for the certificate of purchase, with seal of office attached, he shall be entitled to receive, from the purchaser, three dollars for each certificate or patent issued.

Sec. 15. The surveyor-general, register, county surveyors, and agents, authorized by law to locate state lands, shall have power to administer oaths and affirmations required or allowed by law, in matters touching the duties of the office.

ART. 316, Sec. 16. The surveyor-general and register are hereby authorized to issue all the necessary instructions for the proper fulfillment of the requirements of this act. In all cases where a contest for the certificate of purchase or other evidence of title to the same tract or tracts of land shall arise before the register, when such contest is purely a question of fact or a question as to the survey, the register shall determine the same according to the facts, and issue the certificate of purchase therefor to the person he shall determine to be entitled thereto. When, in the judgment of the register, a question of law alone, or of law and fact, is involved in such case, or when either party shall demand a trial of such questions in the courts of this state, said register shall enter such demand or judgment of the register in the record of the proceedings had before him, together with a direction that the parties are referred to the courts of the state for a legal determination of such conflicting claim or contest. Either party to such contest may bring his action in the district court of the county in which the land in question is situate, to determine such conflicting claim, and the proffer of a certified copy of said entry, made by the register, shall give to said district court full and complete jurisdiction to hear, try, and determine said conflicting claims. Upon the filing, with the state register, a certified copy of the final judgment of said district court, said state register shall issue his certificate of purchase or other evidence of title, in accordance with such judgment.-[Am. April 16, 1859. R. S. St. 1858, 128.

Sec. 17. To enable the register to make out a complete registry of all lands heretofore sold by the state, all officers in whose possession there may be any books or papers relating to the sale of land, are hereby authorized and required to allow the register free access to the same.

[Sections 1, 2, inserted above.]

Supplement of April 16, 1859.

ART. 317, Sec. 3. The surveyor-general and register of the state land office shall have power, under his hand and seal, to appoint a deputy who may, during the absence of the surveyor-general and register from the office, perform all duties belonging to the offices. And for his own security, the surveyor-general and register may require such deputy to give him a bond, in such sum and with such securities as he may deem sufficient; provided, that said deputy shall be entitled to no compensation from the state for acting in such capacity.

Act of April 27, 1860, to Provide for Recording Notice of Claims to Private Land Grants in this State. ART. 318, Sec. 1. Each and every grantee, present claimant, or owner, of any private land claim within this state, held under a grant from the Spanish or Mexican government, may file in the office of the county recorder in the county within whose boundaries the grant or land claim is situated, or in case the land be situated in two or more counties, then with the county recorder of each of said counties, a duly certified traced copy of the original expediente and grant. Sec. 2. Upon filing said traced copies as aforesaid, the same shall be deemed and held to be notice and prima facie evidence of the existence and contents of the originals of such copies of such claims, and shall be received and accredited as such in all the courts of this state.

Act of February 13, 1860, to give effect to Patents for Lands issued in the names of Deceased Persons. ART. 319, Sec. 1. In all cases where patents for lands have been or may hereafter be issued in pursuance of any law of this state, or of the United States, to a person who had died or who shall hereafter die before the date of such patent, the title to the land designated therein shall inure to and become vested in the heirs, devisees, or assignees of such deceased patentee, as if the patent had issued to the deceased person during life.

Act of April 28, 1860, relative to the Herding of Sheep.

ART. 320, Sec. 1. It shall not be lawful for any person or persons owning, or having charge of, any sheep within the counties of Sonoma, Solano, Marin, San Mateo, Sutter, Santa Clara, Tulare, San Bernardino, Los Angeles, Contra Costa, Alameda, San Joaquin, Placer, Colusa, Stanislaus, Calaveras, Yolo, Sacramento, Humboldt, Monterey, Merced, San Luis Obispo, Mariposa, Napa, and Mendocino, to herd the same or permit them to be herded, on the land or possessory claims of other than the land or possessory claims of the owners of such sheep.

Sec. 2. Nothing in this act shall be construed to prohibit or prevent the herding of sheep upon any unoccupied public lands of this state or of the United States, within said counties; provided, that in the counties of Mendocino, Calaveras, Yuba, and Merced, it shall not be lawful for any person or persons, owning or having charge of any sheep, to herd the same on any unoccupied lands of this state or of the United States where such herding may cause injury or inconvenience to actual settlers residing contiguous to such lands who have horses or cattle ranging on such unoccupied lands; and for a violation of this provision the penalties of section two of the original act to which this is amendatory. Sec. 3. This act shall take effect from and after its passage.

Act of April 16, 1859, ceding Jurisdiction to the United States over certain Lands.

ART. 321, Sec. 1. Jurisdiction is hereby ceded to the United States over any

such tract or tracts of land at or near Lime Point Bluff, on the northern side of the harbor of San Francisco, as may be required by the United States for the purpose of military defense, and over all the contiguous shores, flats, and waters, within five hundred yards from low water mark; provided, that this state shall retain a concurrent jurisdiction with the United States, in and over the premises in question, so far as that all civil processes, not incompatible with the full constitutional authority of the United States, and criminal process as may lawfully issue under the authority of this state, against any person or persons charged with crimes committed without the premises aforesaid, may be executed therein, in the same way and manner as if jurisdiction had not been ceded as aforesaid, except so far as such process may affect the real or personal property of the United States.

Sec. 2. The premises over which jurisdiction is ceded by this act, and all structures and other property thereon, belonging to the United States, shall be exonerated and discharged from all taxes and assessments which may be laid or imposed under the authority of this state, while said premises shall remain the property of the United States, and shall be used for the purposes intended by this act.

Sec. 3. This act shall take effect from and after its passage.

Act of February 14. 1859, to provide for the relinquishment to the United States, in certain cases, of Title in Lands for sites of Light-Houses, and for other purposes, on the Coasts and Waters of this State.

ART. 322, Sec. 1. That whenever it shall be made to appear to any one of the district courts of this state, upon the application of any authorized agent of the United States, that the said United States are desirous of purchasing any tract of land, and the right of way thereto, within the limits of this state, for the erection of a light-house, beacon-light, range-light, fortifications, navy-yard, or other military or naval purposes, and that the owner or owners of said lands are unknown, non-residents, or minors, or from any other cause are incapable of making a perfect title to said lands, or in case the said owners being residents, and capable of conveying, shall, from disagreement in price, or any other cause whatever, refuse to convey said lands to the United States, it shall be the duty of the judge of the district court in which the lands so designated to be purchased are situated, to order notice of the said application to be published in some newspaper nearest to where said lands lie, also in one newspaper published in the city of San Francisco, once in each week, for the space of four months, which notice shall contain an accurate description of the said lands, together with the names of the owners, or supposed owners, and shall require all persons interested in the said lands to come forward, on a day to be specified in said notice, and file their objections, if any they should have, to the proposed purchase; and, at the time specified in said notice, it shall be the duty of the said district court to impannel a jury, in the manner now provided by law, to assess the value of said lands, and all damages sustained by the owner of the lands so appropriated, by reason of such appropriation; which amount, when so assessed, together with the entire costs of said proceedings, shall be paid into the county treasury of the county in which said proceedings are had, and thereupon the sheriff of the said county, upon the production of the certificate of the treasurer of said county, that the said amount has been paid, shall execute to the United States, and deliver to their authorized agent, a deed of the said land, reciting the proceedings in said cause, which said deed shall convey to the United States a good and absolute title to the said land against all persons whatsoever.

Sec. 2. That the money so paid into the county treasury shall there remain until ordered to be paid out by a court of competent jurisdiction.

Sec. 3. It shall be the duty of the judge directing money to be paid to a county treasurer, in accordance with the provisions of this act, to require of such treasurer

a bond in double the amount of money ordered to be paid to him, with two or more sufficient sureties, to be approved by said judge. Said bonds shall be payable to the people of the state of California, for the use and benefit of such persons, severally, as are entitled to said money; said bonds shall be executed, approved, and filed with the clerk of said court before receiving said money.

Sec. 4. In addition to the publication required by this act, if there be a newspaper printed in the Spanish language in the judicial district where such land is situated, said notice shall also be published in such newspaper, for the length of time herein provided. In all cases of publication of notice under this act, the court shall require the same proof as in cases of the publication of notice under the Civil Practice Act of this state.

Sec. 5. That "An Act authorizing the United States to purchase Lands for Public Purposes," approved March tenth, one thousand eight hundred and fiftyseven, be, and the same is hereby, repealed.

JUDICIAL DECISIONS.

1. The right to be protected in the possession of public lands in this state, is founded alone on the doctrine of presumption; for a license to occupy from the owner will be presumed. Conger v. Weaver, 6 Cal. 548.

2. The government of the United States has asserted no right of ownership to any of the mineral lands of this state. Id.

The state in her legislation has established the policy of permitting all who wish, to work the mines, with or without conditions. Id.

3. The right of constructing ditches, canals, and flumes, for mining purposes, is a franchise, raised on the presumption of a general grant from the sovereign of this privilege; and every one who wishes to attain it has license from the state to do so. Id.

It follows that the same protection is afforded to this right as others. Id.

4. Though time is not of the essence of a contract for sale of real estate, unless made so by express agreement, yet it will devolve upon a party seeking relief in equity, to account for his delay. Brown v. Covillaud, 6 Cal, 566. 5. Where a party seeks to enforce a contract to convey land to him, if there are circumstances showing culpable negligence on his part, or if the length of time which has been permitted to intervene, together with other circumstances, raise a presumption of abandonment of the contract, or if the property has greatly enhanced in value, and he has apparently lain by for the purpose of taking advantage of this, he will not be entitled to a decision in his favor. Id. Green v. Covillaud, 10 Cal. 317.

6. In cases of this kind the applicant must show a case free from doubt or suspicion. Id.

The words "good and sufficient deed" in a covenant to convey, refer only to the form of conveyance, and not to the interest to be conveyed, therein differing from words of covenant and warranty. Id.

7. The decision of the United States land commissioners confirming the title of defendants only amounts to an acknowledgment on the part of the government, that it has no claim thereto, and in no way affects the title as between private parties. Id.

8. In a covenant to convey, the covenantor is not bound to tender a deed and demand the purchase money in order to avoid the contract. In this state there is no rule on the subject, but in England, the vendee is to tender the deed. Id.

9. Where the plaintiff gave his note payable four months after date, in consideration of which defendants executed a contract for a deed of land, upon payment of the note; Hold, that after a tender of the deed, and demand and refusal to pay the note after maturity, the plaintiff had forfeited his right to insist on a performance of the contract. Pearis e. Covillaud, 6 Cal. 617.

10. Tenants in common of land are not bound by the acts of a cotenant in accepting a balance of the purchase money and promising a deed, after the right thereto had become forfeited. Id.

11. A lapse of four years from the maturity of the note, before action commenced for specific performance, bars the action by limitation, and goes far to make out an abandonment of the purchase by plaintiff. Id. 12. Where a permission to occupy certain lands, for grazing purposes, was granted by the governor of California, under the Spanish Crown, to a Californian, and after the death of the grantee, his heirs made application to the Mexican government, for a cession of the same; upon which a decree was made by the Mexican governor, declaring them to be entitled thereto, under which decree a grant or deed was made to the heirs; Held, that the deed was a recognition of title in the ancestors, and not an original grant to the heirs. Nieto's Heirs v. Carpenter, 7 Cal. 527.

13. The government having thus declared that the original title was in the ancestor, is estopped from denying such admission, or regranting the premises to another. Id.

The recitals in the latter grant must be governed by those of the decree, in conformity to which it was issued. Id. It follows, that where the heirs have made partition, and under the decree the grants were made severally, to the heirs; that a grant made to the widow of one of the heirs, in accordance with the decree, inured to the heirs of her deceased husband by their marriage, and that a sale by her, of the land, was void. Id.

14. Parties in possession, claiming title, are presumed to be the owners. Sacramento Valley Railroad Co. v. Moffatt, 7 Cal. 577.

And are entitled to compensation before it can be taken for public use. Id.

15. Where a railroad company applies for the appointment of a commission to ascertain the value of, and condemn land, required for right of way, and makes the party in possession defendants to their application, the latter are entitled to have the value of the land, paid to them, although third parties have notified of their ownership. Id.

Title cannot be tried in such a proceeding. Id.

16. Under the laws of the Indies, whenever a pueblo was formed by a grant to a founder, or the union of ten or more families, or the foundation of a presidio, or the secularization of a mission, each pueblo was entitled in property to certain tracts of land of the town to be set apart by them, called commons, pasture grounds, and municipal lands, by virtue of their organization as pueblos. Welch v. Sullivan, 8 Cal. 165.

17. The republic of Mexico, after the revolution of 1824, fully recognized the rights of the towns in their commons, pasture, and municipal lands. Id.

The right of the pueblo to have the municipal and common lands assigned, was an acknowledged equity charged with which the United States succeeded to the fee. Id.