The application of defendant Farren was made before the survey and plat of the township in question had been approved by the United States surveyor-general, and therefore before the land had been segregated as swamp. (Act of Congress of July 23, 1866; 2 Lester's Land Laws, 181, sec. 4; U.S. Rev. Stats., sec. 2488; Garfield v. Wilson , 74 Cal. 175.) Segregation can be made only by an official survey approved by the surveyor-general, and there is no survey until such approval is had. (Garfield v. Wilson , 74 Cal. 175; Medley v. Robertson , 55 Cal. 396; Finney v. Berger , 50 Cal. 248.) Under the provisions of the code, no application to purchase swamp-land is authorized until after the land has been segregated as such by authority of the United States.
To give the Constitution such an effect would make it retroactive, and its terms do not warrant that construction. (Wade on Retroactive Laws, §§ 1, 35, 39; U.S. v. Heth, 3 Cranch, 399; Laugenour v. Shanklin, 57 Cal. 76; Medley v. Robertson, 55 Cal. 396; Bedford v. Shilling, 4 Serg. & R. 401.) The appellant's rights were saved by the express provision of the schedule to the Constitution, section 2.
An application to purchase lands of the character in question cannot be made until after the township in which the same may be situated has been surveyed by the United States. (Pol. Code, sec. 3495; Medley v. Robertson , 55 Cal. 396.) This made it necessary for each contestant to allege and prove that the land applied for was surveyed by the United States at the time they severally sought to purchase it. (Rogers v. Shannon , 52 Cal. 99; Finney v. Berger , 50 Cal. 248.)
(Wood v. Sawtelle , 46 Cal. 392; Cadierque v. Duran , 49 Cal. 356; Lane v. Pferdner , 56 Cal. 122; Christman v. Brainard , 51 Cal. 534, 536; Wright v. Laugenour , 55 Cal. 280; Gilson v. Robinson , 68 Cal. 543.) Plaintiff, in his complaint, alleged the fact of a survey, but failed to prove it, and the court was not authorized to make a finding of that fact in the entire absence of proof. That it was necessary for him to so aver and prove, we refer this court to the cases of Finney v. Berger , 50 Cal. 248; Medley v. Robertson , 55 Cal. 396; Middleton v. Low , 30 Cal. 604; Oakley v. Stuart , 52 Cal. 521; Terry v. Megerle , 24 Cal. 609; 85 Am. Dec. 84; Grogan v. Knight , 27 Cal. 518, 519. Nor can any presumption arise of the making of a survey, from the mere fact that the defendant held a certificate of purchase of the land.
That plat was approved by the United States surveyor-general on the fourteenth day of October, 1884, and under the decisions of this court that date must be treated as the date of the survey. (Finney v. Berger , 50 Cal. 248; Medley v. Robertson , 55 Cal. 396.) Running across the plat from a point on the north line of section 4 to the southwest corner of section 25, is a line marked "shore line of Tulare lake in 1855," and west of that line, and nearly parallel with it, is another line marked "shore line in 1880." On the margin of the plat are entries showing the number of acres in the "area of public land surveyed in 1854," and of swamp-land surveyed in 1880 and 1884.
1869-70, p. 875) provides: "That in cases where the townships have not been subdivided, but township and other lines have been established so as to clearly show that a tract of land is included in any thirty-sixth section, and the parties applying for the same make affidavit that there is no legal claim to the same other than his or their own, and that the same is not occupied by any bona fide settler, the surveyor-general may approve such locations, without the acceptance of the register of the United States land-office, and the register of the state land-office may issue certificate of purchase for the same." As the township was not surveyed and sectionized until 1874, it is apparent that defendant's application was not, and could not have been, made under section 52. (Medley v. Robertson , 55 Cal. 396.) Was it made under section 12? If it was, his affidavit must have stated that there was no legal claim to the premises other than his own; and that the same were not occupied by any bona fide settler.
On February 5, 1861, the survey, corrected and platted, received the approval of the Surveyor-General; and the survey then became a complete survey, and not before. (Medley v. Robertson , 55 Cal. 396, overruling Oakley v. Stuart , 52 id. 521; Act of Congress, June 14, 1860; Brightly's Digest, 1133; United States v. Sepulveda, 1 Wall. 104.) That the publication was regular is beyond question.
In our opinion the presumption does not apply to every act of the surveyor (e.g., mistakes he makes in the field and himself corrects), but only to those completed acts which have become official through approval by the head of the bureau. ( Cf. Medley v. Robertson, 55 Cal. 396, 398-399; United States v. Morrison, 240 U.S. 192, 210, 212 [36 S.Ct. 326, 60 L.Ed. 599]; Kendall v. Bunnell, 56 Cal.App. 112, 122 [ 205 P. 78].) Cases arising under sections 1920 and 1926, Code of Civil Procedure, furnish a persuasive analogy.
At that time, therefore, there was no resurvey. [2] Until the plat of a survey has been approved by the United States surveyor-general, there is no official survey, the date of the department's approval of the plat being treated as the date of the survey. ( Medley v. Robertson, 55 Cal. 396; Garfield v. Wilson, 74 Cal. 175 [ 15 P. 620]; United States v. Curtner, 38 Fed. 1.) "There is, in fact, no such tract of land as that described in the petition until it has been located within the congressional township, by an actual survey and establishment of the lines, under the authority of the United States, and the survey has been approved by the proper United States surveyor-general. A person may approximate to the lines that may be run — may surmise the precise lines — but the tract has no separate legal identity until the survey is made and approved under the authority of Congress.