The record-union., 1891-01-17

swamp and oyerfiowed, it shalt not be neces-
sary to subdivide the same, but to run the ex-
State suryeysaTe found not to be in accord
ance with the system of United Statessurveys,
and IN such, townships as no survey has been
MADE by the United States, theACommisSioner
snail direct the Suryeyor-General to make
segregation surveys upon application to said
uryeyor-tieneral by the Governor of said
state, Wlth1n one year OF such application, of
all the swamp and overfiowed land in such
townships. and TO report the same to the Gen
erai Land Office, representing and describing
what land was swamp and oyerfiowed under
the grant, according to the best evidence he
can obtain. If the authorities of said State
shall claim as swamp and overfiowed any land
notreprcsented as such upon the map or in
the returns of the surveyors the character of
such land at the date of the grant September
20, 1890, and the right to the same, shall be
determined by testimony, to be taken before
the Surveyor-General, who shall decide the
same, subject to the approval of the Commits
sloner OF the General Land Office"
The record shows that the plaintiff offered
in evidence the approved official township
plat of township 13 north, range 3 east,
Mount Diablo meridian, filed in the United
states Land Office at Marysville, in this State
on August ., 1869, and also the approved
diagram of amendments to said plat from the
Office Of the Surveyor-Gencral OF the United
states, Tor the State of California, dated 9th
of September, 1869, fled in the United States
Land Office aforementioned of the land dis
trict in which the land in controversy is situ-
ated on September 8, ] 500, showing the pub
lie lands and claims with specific boundaries
WltDlf the ftJeCtei limits Oh the New HelSetll
rancho. The above plat and diagram include
the land involved herein, which is designated
thereon as lands claimed by purchasers of
Mexican grantees, or their assignees and
which have been excluded from the final sur
Vey of the Sutter grant.
IL will be observed that the land involved in
this suit was not represented on the approved
plat or the approved diagram of amendments
10 it, as swamp and overtowed, and it, there
fore, did not become the duty of the Commits
sioner of the General Land Office, under the
fourth section of the Act of 1866, above
quoted to certify such land over to the State.
Nor does it appear in the record that any
township plat has been constructed which
represents such land to be swamp and over
flowed.
Under the provisions of the fourth section
it will be seen that tho Governor of the
State was vested with authority to have the
swamp and ovcrtiowed lands segregated by
survey on application to the Surveyol-6sen-
eral and Il was further provided III the same
section that Ii the authorities Of the State
Shall claim as swamp and oyerfiowod any land
not represented such upon the map, on in
the returns of the surveyors the character of
such land at the date OF the grant september
2S, 1850, and the right to the same, shall he
determined by testimony, TO be taken before
the Suryeyor-General, who shall decide the
same, subject to the approval of the Commits
sioner of the General Land Office.
In this case no steps have been taken by the
Governor or the State authorities to have the
| character of this land deternincd-to have it
decided whether it was swamp and overfiowed
at the date of the grant. Nor does it appear
| that the defendants have ever taken steps to
have the Governor or State authorities move
! in the matter. The patent under which the
! plaintiff makes title was issued on the 9th of
/ December, 1852, on Il claim commencing as
! far back as 1850. Defendants claim that their
claim rested on 81 certificate of purchase issucd
on the 21st of July, 1856. The delay in this
matter to have the character of the land de-
! termined, as it could have been done under
! the section of the Act of l SG6 above aaoted
though not conclusive, is strongly persuasive
| that the land was never of the character de-
seribed by the swamp Land Act of 1850 as
I tct+r. ANN md flow NOD
The court did not err in refusing to allow de-
| PENDANTS to prove that the lands in suit be-
| lonSed to the category of swamp and over
| flowed lands.
We find no error in the record, and the judg-
ment and order are affirmed.
THORNTON, j.
We concur:
MCFARLAND, J.
| WORKS, j..
| SHARPSTEIN, j.
CoNCUREING OPINION.
! / concur in the judgment. The swamp land
grant of $50 is one in present. and passed
the title to the lands of its date, but it could
not attach tc any specific tract until it was de-
ternllned by the proper officer that the land
was swamp in character. Under the Act of
1850 it was the duty of the Secretary of the
! Interior to make out accurate lists and plats
and transmit the same to the Governor of the
State, and at the request of the latter cause
| patents to issue therefor. No provision was
made for a review OF his action in ascertain
! ing and designating the character of the lands.
| Under the Act of July %, 1866, which was
passed to quiet land titles in California the
duty of Identifying swamp lands by survey
and segregation was put upon the Surveyor
| General, subject to the approval of the Land
Commissioner. 1t was provided that q hear
| Surveyor-General for the purpose of
showing that the township pats We're
/ Incorrect, Provision was also made
| purchasers from Mexican grantees, where the
| land purchased had been excluded from the
survey OF the grant on its final confirmation.
! fFhpcp ban r1h
.and Receiver of the local land office, under
certain rules formulated by the Commission.
| q On August 2, 1869. the land in controversy
was returned and designated upon the official
| plat as public land claimed by purchasers of
| Mexican grantees, Or their assigns 1t was not
returned swamp land, and was not desig-
mated ON the official plat with the usua, Gov
ernment sections and subdivisions but in ac-
cordance with existing lines of subdivisions,
as provided by Section OF the Act of July
23, 1866. This plat, which in effect showed
that the land was not regarded by the Sur
| reyor-General as swamp and overiiowed land,
remained on file in the local Land Office from
August, 1869, TO June, 1883, without chal-
| lenge by any one-the state or its grantees-as
| to the character of the land. Hodges and
| Upham lied in the local Land Office, in Sep
| telpber, 1869, n prc-emption claim for the
land under Section 2 of the Act of 1866,
! claiming to have purchased ii for a valuable
| consideration from the Mexican grantees, and
| placed valuable improvements thereon in part
| only. On this statement citations were issued
by the officers of the land office TO the defend
ant VINO had filed on portion of the tract
described in the Hodges claim, and to the State
| TO show cause against the application of
Hodges and Upham to purchase. The State
did not appear, but the defendant herein APP
peared and contested the application. An
appeal was taken to the Commissioner of the
| General Land Office. and from his decision to
the Secretary of the Interior, who finally de-
/ termincd that the applicants were entitled to
Il patent.
] think the proceedings had on application
of plaintif's grantors, who purchased the
land under the provisions OF the seventh sec
| tion of the Act of July 3d. 1866, and the de-
cision rendered by the department arc q com-
plete bar to any claim of the State, and to the
claim of The defendants. 1t is true, the pro-
cecdings against Mcnamara involved other
! lands than those in controversy here, but they
also involved the right of said grantorS to pur-
chase the lands in controversy as against all
parties to that action At the,time those pro-
ceedings were pending MeNanlaITl held D GER
Estiticatc of purchase under which he now
sclainls title to the lands in suit. Although
that certificate was issued in 1860. and the
| hearing before the Land Office was not had
until March, 1871, yet l think McNamala's
right was concluded therein. The application
i of Hodges and UpnaHr was based upon the al
/ legation that they were bona tide purchasers
| for valuable consideration from Mexican
| grantees of land which had been excluded
| from the final survey of the grant: that they
had made improvements and occupied the
land according to the lines of their original
1 purchase, and that there was no valid adverse
right except that of the United States. In ac-
cordance with the rules of the department the
SAID McN;l10af;l ana all Otner persons inter-
ested were duly cited to appear and contest
their right to purchase the land under
! the Act of July %, 1866. The defend
ant did appear and contest the claim
ants right to portion of the land, but
made no contest as to that portion which is
| in controversy here, and for which he at that
time held certificate of purchase. The State
had parted with her title to the defendant and
| was interested in the contest. 1t was the duty
of Mcnamara, as grantee of the state, to defend
whatever claim he had under his certificate.
1t seems to me that in the absence of fraud
the decision of the Innd Denartment was