Daily Los Angeles herald., 1881-03-27
INTERESTING LEGAL DECISION.
tContinued from yesterday. I

[Contlnued from ysstsrday.1
lin yesterday's report the ord
nance Of 17S5 10 erroneeusly prints
1875 and the following authoritis
were omitted as to proposition {
when the State title attaches
Cooper W Robert, 18 How us. III
johnson W Towsley, Is Wall 142.
i A final decision either of an ex
ecutive or judicial officer stil
leaves open to . proper inquiry Il
time the questions Of power In tn
officer and fraud In the party
Arrsdondo W. q. g., 6 Pet.
Equity has always had jurlsdic
tien Of fraud, misrspresent tatiol
and ceneealment.. Jones vs.. Bolles
10 Wall 500.
Tho selection and patent. In thi
case were not condrmsd by tn
acts of August of 1855 or 1878.
In the case of Collins vs. Bart
lett, A CAL, 881 IL was held that
"The location Of school land war
rants In 1858 prior to q survey oil
the land WAS void"
1.-THE act of 1866 (U. q. State.
vol. Al, 2lS) confirms certain in
valid selections Of land, thsretofor,
made under the authority of tn,
State, or more properly speaking
the means are thereby provided bJ
which the selections may be con
firmsd and tho title to the land
acquired. The selection In thil
case comes under the provisions o
the third section Of the aot, ~ tn,
lands were not surveyed 1t tha
passage of the act. Under the lant
system Of the United States, landl
are not treated - surveyed until
the township plat 10 approved by
the Surveyor General and returned
to the proper Registers sfiics.
The claimant 10 required by that
section to present and prove up
his purchase and claim within the
time allowed to pre-snptors under
the prs.em ption laws, and after the
purchase and claim have been pre-
ssntsd and proven up, the Com.
missioner Of the General Land OF.
fee IL required to certify over to
the State. It does not clearly ap.
pear that . claim was presented
under that act In the case at bar,
but, II such was tho case, 1t does not
appear that It was proved up or
the lands certified to the State.
Iti quite apparent that no title
passes from the United States to
the State or the purchaser from the
State until the land 10 certified to
the State by the Com missioner.
The Act Of March l, 1877, com.
monty called the Booth Act, does
not operate . confirmation until .
final survey. The third section
provides:
"That the foregoing confrma.
tion shall not extend to lands set
tied upon by any actual settler
claiming the right to enter not OK.
cesding the prescribed legal guam.
tity under tho homestead or pre-
smption laws. Provided that such
settlement was made In good faith
upon lands not occupied by the
settlement or improvements Of any
ether psrssn and prier to the date
Of the oertidoatien Of said lands to
the State Of California BY the Do.
partment Of the Interior, and pro.
vided further, that the claim OF
such settler shall be presented to
the r. and r. Of the District land
efncs, together with the proper
proof Of his settlement and resi-.
dsncs, within twelve months after
the passage Of this act, under such
rules and regulations 40 may be
ssta blished BY the Oominissioner
Of the General Land Omcs."
It is In proof that Charles Hazard
settled. proved up and paid before
tho passage Of the act, and there 10
NO evidence that the holder Of the
State selection ever attsmp pied to
comply with the act OF 1886.
The Act Of July ~, 1850, provides
"ThAt iu oil cases where the State
Of California has hsretofort made
selections Of any psrtten Of the
public domain In part satisfaction
Of any grant made to said State by
any act Of Congress, and has dis.
posed Of the same to purchasers in
good faith under her laws, the
lands 20 selected shall be, and
hereby are confirmed to said State;
provided that NO selections made
BY said State contrary to existing
laws shall be confirmed by this
act, Of lands to which any adverse
presumption, HON estead, or other
right have at the date Of the pas
sage Of this act been acquired by
any settler under tho laws Of the
United States"
The defendants introduce In evi.
dence q patent certificate to Chas.
Hazard. dated July Is, 1878, for 8.
/ Of 8. e. quarter, section No.17, in
+. 2 o. r. Ne. 1s W., 3. B. N. con-
tanning eighty acres, certifying
payment, and proper mssne cen-
veyancss frsm Hazard, embracing
lands In controversy. 1t WAS also
In proof that Hazard settled on the
quarter section In January. 1871,
claiming q prs.emptien, built a
house and occupied the same up
to the date Of the certificate, in all
respects complied with the pre-.
smption laws. In Lyttle vs. Ar.
kansas, 9th How u. g., 9. g.: "The
claim Of = prs.smptionsr Or 10 not the
shadowy right which by some 1t ID
considered to be. Until sanctioned
by law 1t has no existence - . sub.
stantial right. but whom secured by
law IL becomes . legal right,
subject to be defeated only BY q
failure to perform tho conditions
annexed to it. It 10 founded In an
enlightsd public policy rendered
necessary by the enterprise Of our
citizens"
Secretary Sshurz in the Ameri.
can Hill quartz mine case, decision
Of March 4th, 1879, says:
1.-THE trusrule Of law governing Z
entries Of public lands to which
mineral lands form no exception
is, that when the contract Of pur.
chase 10 completed by the payment
Of the purchase money and the issu.
anna of thA nAtanE noPkif3nato nv