The record-union., 1891-03-27
SUPREME COURT DECISIONS.

EDGAR L. WAKEMAN.
SUPREME COURT DECISIONS.
Filled in Sacramento, March 26, 1871
Appeal from Superior Court Tulare
County w. Cross, Judge.
For appellant, Freeman u Bates.
IN BANK.
FULTON, Respondent,
VS.. 70 600
BGANNAN EFT AL, NJ i''ooo'
Appellants.
This is q contest for the purchase Of
land. from the State, instituted in the land
Office. The courS awarded tho land to
plaintiff and defendant appeals.
The land belongs 10 the class designated
swamp land, title to which was acquired
by the State under Act OF Congress APP
proved September 2S, 1850. TIE plaintiff
was an actual settler upon the land and
the defendant was not. Under the find
ing of the court, that the land III coatro-
Versy was suitable for cultivation this
became the turning point in the case
the court holding that Section 5, Article
IL, of the State Constitution was appii-
cable. Whether it applies to swamp land
at all, is the only question OF Importance
in this appeal.
That the State has clearly-defned
policy upon the subject generally is quite
evident from the section in question and
the preceding. They are as follows:
Sec. =. The holding of large tracts of
land, uncultivated and unimproved, by
individuals or corporations, is against the
public interest, and should be discouraged
by all means not inconsistent with the
righ of private property.
Sec. 3. Lands belonging to this State
which are suitable for cultivation, shall
be granted only to actual settlers, and in
quantities not exceeding $40 acres to each
settler, under such conditions as shall be
prescribed by law
The policy of the State is here declared
to be against selling any lands suitable
for cultivation in tracts in extent exceed
ing so az -'eS or 10 other than actual set
tiers. And this policy is greatly en-
phasi2ed by the preceding section which
plainly declares that the holding of large
tracts, uncultivated, is against the public
interests and should be discouraged by
all means consistent with private rights.
In view of such declarations it must be
manifest that it was intended that all
lands within this State, should, so far as
governmental action could accomplish il,
without violating private rights. be held
IN small tracts and constitute homes for
its owners. TO narrow construction of
lIS Jill NOINS III lIC SSctlOn open 10 con-
Struction = suitable for cultivation
should limit the operation of this policy.
The effect should be rather to extend
than to restrict, for the policy is plainly
that the section should include all, so far
as possible.
The Constitution classifies all lands as
suitable or not suitable for cultivation.
For the purposes of this section neither
the Legislature nor the courts can classify
them otherwise, and it must follow that
whether particular tract belongs to one
class or the other must always be queS-
ton OF fact.
The courts cannot exclude any other
class of lands from the effects of this
limitation or prohibition, except in fact
unsuitable for cultivation, nor can the
courts declare any class, as class, un-
suitable for cultivation unless it knows
judicially that no tract of the class in ex-
tent amounting to three hundred and
twenty acres is suitable for cultivation.
Nothing less than this would justify such
Il Judicial rule. Now this court is pre-
Sumed TO know, what every INTELLIGENT
man does know, that swamp lands are
liable to be reclaimed by natural causes,
and that since the Congressional swamp
land Act-called the Arkansas Act-manv
thousands OF acres of these lands have
been so reclaimed, and had been when
this constitutional provision was adopted.
L httS are NOW petloiilP III llllS court sew
eral cases in which the court has found as
a fact that the lands in question had been
so reclaimed at the time of the several
applications to purchase. These lands.
when reclaimed, are often the most fertile
we have, and entirely adapted to habita-
ton.
Section was construed in Manly VS..
Cunningham az Cal. 236), ito provide
that the public lands should be held and
disposed of, so far as possible, to those
who Will live upon and cultivate them:
that they should be used to encourage
the immigration of industrious people,
who will utilize and improve the lands
and by building up homes and engaging
in husbandry add permanently to the
wealth and prosperity of the State.
1.-The phrase, suitable for cultivation.
includes all lands ready for occupation
and which, by ordinary farming pro-
cesses, are fit for agricultural purposes"
IL this decision is to stand as expressive
of the law of this State, all swamp lands
which, at the time application was made
for their purchase were fit for human
habitation and by ordinary farming pro-
cesses can be made suitable for cultiva-
ton, can be sold only to actual settlers
and in quantities not exceeding three
hundred and twenty acres.
As already stated, the only language in
Section which is open to Interpretation
Is The piTdS6y IOT cultlNatlOn.''
In Manly VS.. Cunningham, supra. the
phrase is construed as a similar express
sion, was by the Secretary of the Inte-
rior, in letter of instruction to Commits
sioner Mcfarland: ''All timber lands are
unfit for cultivation in their natural con-
dition, but if they may be reclaimed by
ordinary farming process they are not.
in my opinion, within the purposes of
the Act"
In this case it is found that the lands
have already been reclaimed by natural
causes, and the dacts show that the land
is as nearly tit for human habitation as
wild uninproved lands can well be.
1t is claimed that the State is morally
bound not to assert that these lands are
suitable for cultivation, or perhaps is
estopped from so doing because it re-
ceived them under the Arkansas Act,
which only granted such lands as were
swamp and overflowed and made unfit
thereby for cultivation" Counsel SAYS:
''The duty OF examining the public
lands and determining what parts thereof
were swamp and oyerfiowed, was con-
fided to the officers of the Land Depart
ment of the United States: and their de-
cisions upon this subject being the decis-
ion of court of special Jurisdiction
made upon subject unquestionably
within the limits of that jurisdiction, is
binding upon all persons, and conclus-
lively establishes that the lands are of the