Daily Los Angeles herald., 1881-02-02

SUPREME COURT DECISION
IN BANK
lTiied January 4. 1881

lkiiou january d leoA.l
O'C0NNoR VS.. FRAsHER-No. 1908
The plaintiff sues in ejectment
f0I the recovery Of the possession
OF the land described in the com.
plant. The conclusion at which
~ have arrived renders 1t unne-
oossnry to consider anything be-
yond the uncontroverted facts
1ound by the court below. The
land which the plaintiff seeks to
rocover was sold and patented on
the 2lst day Of April, 1874, by the
State Of California to one Robert
Thompsou. from whom the plain-
til deraigns his title through the
meme conveyance Of one w. 8.
Rosscrans, whose conveyance to
plaintiff IL dated April IL, 1875.
The land was listed to the State as
lieu land, and the list certified by
both the Commissioner of the Gen.
eral Land Office and the Secretary
Of the Interior. By the former on
the goth day of May, 1872, and by
the latter on the 3lst OF May 1872.
The defendant entered upon the
land on the 9Th day of June 1876,
and rendered his fling thereon IN
the United States Land office, with
all legal fees, claiming the land as
. pre.emptor, and on the 18th day
of Decem Der, 1875, rendered his
flnal proof and payment to the OFF,
Gers OF the United States Land ON.
90, which was refused, and an ap.
neal was taken from the action OF
the officers of the local office to the
Commissioner of the General Land
ONCE, and the same il now pend
Ing. At some time In the year
1879, the defendant applied to the
proper officers Of this State to pur..
chase said land from the State and
said application is now pending
and undetermined.
From which 1t appears that the
defendant's right to controvert the
plaintifY's title is based solely up
on the ground Of naked entry by
the defendant upon the land more
than two years after the State had
sold and patented it to the plain.
tlffs grantor, and more than four
years after the land had been listed
py the Unite States to this State.
New, conoeding that the facts all.
God by the defendant are all true,
and that the land was improperly
listed to the State, and That the
State improperly conveyed it to the
plaintiffs grantor. and that the
acts OF all the officers who certified
said list and issued the patent OF
said land, should be revoked by
the proper departments Of the State
and Federal govern ents, the fact
still remains that the plaintiff has
. patent which is regular upon its
face, and the proceedings resulting
in it were the usual proceedings In
such cases and regular in form.
The questions whether tie land
was or was not public land within
the meaning Of The acts of Congress
granting lands to the State of CAL
if0rnia as school lands or State in
demnity lands, or the survey
thereof was with or without au-
thority of law, were questions
which it was the duty OF the land
officers to determine, and IL they
made q mistake in judgment their
action was erroneous and not a
mere nullity. dodge vs.. Perez, 2
Sawyer, 645).
ssIf the authority to issue the
patent depends upon the existence
Of particular facts III reference to
the condition or location of the
property, or to the performance of
certain antecedent acts, and Off.
GERS have been appointed for the
ascertainment of these matters in
advance, who have passed upon
them and given their Judgment
then the patent, though the judg-
ment of the officers be In fact En-
roneous, cannot be attacked COLA
terally by parties showing title
subsequently, from the same source,
much less by those who show no
color of title in themselves. In
such cases, the parties without title
cannot be heard at all, and the
parties with subsequent title must
seek their remedy by scire Jocios,
or bill or information to revoke the
first patent or limit its operation"
doll vs.. Meador, 16 Cal, 1926; All
Yen vs.. Choate, "a Cal, 566; FRS.
BILE vs.. Whitney, 9 Wall, 1877;
Hutchings vs.. Low, Is Wall, ~
But it Is unnecessary to cite
authorities upon this point. When
this case was here before (53 CAL,
4S5) the late court said: Creating
the whole pieadings (of the defend.
anti as u cross.complaint, the de-
murrer should have been sustain.
ed" and cited Thomas VS.. Lawlor
(53 CAL, 4O5) in which the doctrine
VI Doll VS.. Meador supra is clearly
recognized and followed.
The judgments and orders deny
Ing new trial are reversed and the
Court below is directed to enter
judgment for plaintiff against the
defendants Frasher, Brush, Dotson,
6omes and McClain.
SHARPSTEIN, j.
We concur:
THORNTON, j.,
MCKEE, j.,
hnK rNrnpU