Opinion
[Syllabus Material] [Syllabus Material] 27 Cal. 484 at 488.
Original Opinion of January 1865, Reported at: 27 Cal. 484.
JUDGES: Sawyer, J., on petition for rehearing.
OPINION
SAWYER, Judge
By the Court, Sawyer, J., on petition for rehearing:
Plaintiff recovered in this action on his prior possession, and not upon a claim under the act of Congress authorizing those who had purchased under Vallejo to enter the lands reduced to possession under such purchases. The record, however, shows that plaintiff is one of the parties contemplated by the act, he having reduced the lands to possession, and having been, for several years prior to the entry of defendants, in possession under conveyances from Vallejo. The question is not whether the defendants are under a disability, which must be shown by the party alleging it. They allege a right acquired under the United States, and the burden of showing the right is on them. The Government has not extended its bounty to mankind generally, but it has conferred a right upon a particular class of persons, upon the performance of certain prescribed acts, and a party claiming the right must show that he is one of those persons, and that he has performed the acts required.
At the time the declaratory statement was filed by defendants, the lands were not subject to pre-emption by them, for it appears that the lands in question had been reduced to possession by plaintiff under conveyances from Vallejo, and that the time had not expired within which plaintiff had the exclusive right of purchase. It was not a matter of any consequence whether he had yet taken the steps to secure the land or not. The declaratory statement, made while the lands were not subject to pre-emption, was of no validity, and there is no sufficient evidence, independent of, or in connection with this declaratory statement, to connect the defendants with the United States Government prior to the commencement of this suit. The plaintiff's prior possession must, therefore, prevail.
As to the question of damages, it appears by the admissions of the parties in evidence, that plaintiff had taken possession of the crops in an action to recover them, but the suit was still pending and undetermined. We cannot know that he will recover. But there is nothing in the pleadings, that will enable us to take cognizance of the fact that plaintiff has brought an action to recover the crops, or that he has received the rents and profits. Besides, it appears in the record that the plaintiff has " remitted a portion of the damages." We presume this was to obviate the objection made by appellant.
Rehearing Denied.