Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Denied 33 Cal. 542 at 548.
Appeal from the District Court, Fifth Judicial District, San Joaquin County.
This was an action to recover the southeast quarter of Section Number Seven, in Township Number Three South, Range Number Seven East, Mount Diablo Meridian. The plaintiff claimed in his complaint that he was the owner of the land on the first day of December, 1863, and since had been. The defendant in his answer claimed that on or about the 18th day of November, 1863, the land was open to pre-emption and home-stead settlement, and that he then settled upon it, and had performed every act required of him to be performed to perfect his homestead title.
For the purposes of this appeal, the parties agreed to the statement of facts following, to wit:
On the 15th day of January, 1856, a patent by the proper authorities of the State of California for the land in dispute, was issued to George W. Trahern. The survey upon which said patent was issued was made in the year 1855. The proceedings resulting in such patent were had under the several Acts of the State concerning swamp and overflowed lands; and such proceedings were all regular on their face, and said patent conveyed to said Trahern the legal title to said land, if the same was swamp and overflowed land, made thereby unfit for cultivation, within the meaning of the Act of Congress of 28th September, 1850, entitled " An Act to enable the State of Arkansas and other States to reclaim the swamp lands within their limits." Geo. W. Trahern, by sufficient deed, on the first day of December, 1863, sold the land to the plaintiff. The defendant was in possession of the land, claiming it as a homestead under the Federal Homestead Act. On the 27th of November, 1863, he applied to the local United States Land Office at Stockton, to be allowed to enter the land under and by virtue of the Federal Homestead Act, and such proceedings were had that he was allowed by said Register to make said entry. A survey embracing said land was made by the United States Surveyor General for the State of California, in December, 1854, and approved by him June 15th, 1857, and returned to the Register of the Stockton Land District on day of 1857, and filed by him.
The defendant was allowed to prove on the trial that other land near the land in dispute, and similarly situated, produced buckwheat and oats in the summer and fall, which were planted after the subsidence of the winter and spring rains. The plaintiff excepted.
The defendant recovered judgment in the Court below, and the plaintiff appealed.
COUNSEL:
An entry for homestead can only be made of " unappropriated public lands," subject to pre-emption. The homestead right will take effect only on land to which a right of pre-emption has attached or may attach, so that the settler may, at his will, convert the claim of the former into one of the latter class. (See Secs. 1, 2, 8, of Homestead Act of May 20th, 1862.) Any lands which are reserved by Act of Congress, for whatever purpose, are not open to the right of pre-emption, nor, as a consequence, to the right of homestead. They are not " liable to entry." (See Pre-emption Act of September 4th, 1841; Lester's Land Laws, Sec. 10, pp. 61-2.) The land in controversy was appropriated reserved land at the date of defendant's settlement and entry. It was claimed and sold by the State as her land under the swamp land grant many years prior to the defendant's entry for homestead; the sale by the State being in January, 1856, and the entry for homestead in April, 1864. Under the Act of Congress of March 2d, 1855, entitled " An Act for the relief of purchasers and locators of swamp and overflowed lands," a patent cannot issue by the General Government for land thus situated " until such State, through its constituted authorities, shall release its claim thereto." This Act was " extended [by another of March 3d, 1857,] to all entries and locations of lands claimed as swamp lands made since its passage." (See Lester's Land Laws, No. 275, p. 268; Ib., No. 319, p. 285.)
The land is confirmed to the State, and her title, resting in the plaintiff, made perfect by the operation of the Act of Congress of July 23d, 1866, entitled, " An Act to quiet land titles in California." The first section confirms to the State " all selections in part satisfaction of the grant made to said State by any act of Congress," and where the State has disposed of such land to bona fide purchasers; provided, the selections were not contrary to existing laws.
The legal test for determining what were swamp and overflowed lands, which the Court declared should govern the jury in forminga verdict, is a false test, and is not sustainable by correct and received rules of interpreting the legislative will, nor by the construction and practice of the Land Department of the Government.
If Congress meant to donate no land except it were disqualified for crops of every kind, language plainly indicating that purpose would have been employed, instead of leaving as now the extent of the gift (according to respondent's proposition) determinable by tests as numerous as the varying products of the planter, the farmer and the gardener, from the differing soils, and the dissimilar climates within the borders of the whole Union.
John B. Hall, for Appellant.
[No brief on file for Respondent.]
JUDGES: Shafter, J. Mr. Justice Rhodes did not express an opinion.
OPINION
SHAFTER, Judge
By the Court, Sawyer, C. J., on petition for rehearing:
We overlooked the statement of one ground of error in consequence of its not being stated in immediate connection with the others, where they were collected together and numbered. But the difficulty is, there was no objection or exception to the admission of the evidence. There was, however, no error in admitting the evidence complained of. It not appearing that the land itself had been cultivated, for the purpose of showing that staple crops could be annually raised upon it, notwithstanding the fact that it was sometimes overflowed, it was shown that other lands in the neighborhood, similarly situated, but still lower and subject to be more deeply overflowed, and therefore less fit for cultivation, produce staple crops. This was proper. If other lands of the same kind in the same locality proved to be in the same or worse condition with reference to the annual overflows, produce staple crops, this tends to prove that the land in question would do the same; and in the absence of actual experiment upon the land itself, is the only reasonably certain evidence of the fact. It is certainly better than mere opinion. We see nothing else in the petition requiring further consideration.
Rehearing Denied.