The record-union., 1891-03-16

! THE COURT.
For the reasons given in the foregoing
opinion the Judgment and order are af-
| firmed.
Filled March Z. 1911
IN BANK.
WILLIAM w. WREN,
Respondent,
| JOHN M. MANGAN AND r.
f. HYDE, Appellant.
THE COURT.
When this cause was pending in de-
| partment an opinion was prepared by
Commissioner Belcher. After hearing in
| bank, and due consideration of the case,
we are satisfied with that opinion, and
| with the conclusion therein reached. The
| opinion is as follows:
This action was brought to determine
| contest as to the right to purchase from
| the State certain halt section of swamp
and overtiowed land, situate in Tuiare
| County. The trial court gave judgment
for the plaintiff, from which and from an
order denying him new trial, the de-
| fendant. Hyde, appeals.
'tThe material facts of the case are as
| follows: On the ID day of July, 1879, the
defendant, Mangan, filed in the State
Surveyor-General's office his application
| to purchase a section Of land under the
| law providing for the sale of swamp and
overtlowed lands. At that time the
| township in which the section applied
| for was situated, had not been surveyed,
and the section had not been segregated
as swamp and overf1owed land by an
thority of the United States. In 1880 the
| township was surveyed in the field, and
on the 9th day of February. 1881, the town
| ship plat was approved by the United
| States Surveyor-General and filed in his
| office.
ION this plat the section was marked
| and designated as swamp and overiiowed.
At the time of filing his application Man
! gan was qualified to purchase swamp
| land from the State, and the application
was verified and stated all the facts re-
quired by law for that purpose. II also
/ had attached to it q certificate of the
| County Surveyor that he had surveyed
| the section, and certificate of the Req
| lister of the United States Land Office OF
| the district, in which the land was situ-
ated, that there was no pre-emption.
! homestead, or other filing of record in his
office on the said section. The applica-
ton remained unacted upon until the 22d
day of September, 1888, when it was APP
proved by the Surveyor General, and
thereafter, on the 24th of November fol-
| lowing, a certificate of purchase for the
land was issued to Mangan. Afterwards,
| by mesne conveyances and assignments.
in interest of Mangan in the land and GER
! tificate.
"In February, 1888, the plaintiff set
| tied on the north half of the section. an
piled for by Mangan, and on the 18th day of
March following he filed in the State Sur
veyor Generals office his application to
| purchase the half section SO settled upon.
The application was properly verified,
and stated, among other things, that the
| land applied for was suitable for cultiya-
ton, ard that there were no settlers
| thereon other than the applicant, and that
he was an actual settler thereon. Plaint-
! iff also flied at the same time his verified
protest against the issuance of any fur
\ ther evidence of title to the said half sec
| ton to Mangan or his successor in interest,
on the ground that the said land was not
segregated by, authority of the United
States until the year 1881, and that the
same was suitable for cultivation, and
neither Mangan nor his successor in in
4 tereSt had ever been settler thereon.
| 1.-The contest thus raised was referred
I for determination to the Superior Court
! of Tulare County, and this action was
thereafter commenced in proper time
| LAS conclusions of law from the facts.
the court below found as to the plaintiff,
| that he was entitled to purchase the land
| applied for by him and to have his appIi-
cation approved by the Surveyor-G Gen
4 eral; and as to the defendants, that the
application of Mangan and the certificate
of purchase issued thereon, in so far as
they relate to the lands in controversy,
were illegal, null and void, and that
neither of the defendants had any right
to purchase the said land, or any right,
| title, interest or estate therein.
Il. The first point, made for a reversal
| of the Judgment, is that the evidence was
insufficient to justify the findings, that
the land in controversy, and each legal
subdivision thereof, was suitable for cul-
tivation, and that the plaintiff was an
actual settler thereon when he filed his
application. This point cannot be sus-
tanned. 1t is unnecessary to recite the
testimony, but, in our opinion, it was
amply sufficient to establish both propo-
sitions.
"2. The only other point presented is
that, one seeking to purchase swamp
land may make his application to pur-
chase the same before the land is segre-
gated to the State as swamp and over
| flowed by authority of the United States,
and that Mangan's application was,
therefore, not prematurely filed. But in
Garfield vs. Wilson ga Cal. 17S) this court
that since 1874 no application to purchase
swamp land has been authorized until
after the land has been segregated as such
| by authority of the United States,' citing
Sections 344l, 344S and 3445 of the Political
Code. That decision, if correct, and we
think it is, is decisive of the question.
| (See also Tuhbs VS.. Wilhoit, 73 Cal. 81 .r'
For the reasons given in the foregoing
opinion the judgment and order appealed
| from are affirmed.
| GFiled March 7, l891.]
IN BANK.
In RE, Inc 10 5at