Hildebrand v. Stewart

By the Court, Sprague, J.: This was a contest arising before the Surveyor General, between two conflicting applicants for the location and purchase of the west half of section sixteen of the school lands of this State, situate in Colusa County, which was, under the statute of the State, transferred for adjudication to the Tenth District Court, where the questions were litigated between the applicants—Hildebrand as plaintiff, and Stewart as defendant—and judgment was rendered in favor of plaintiff for the southeast quarter of the southwest quarter of said section, and in favor of defendant for the residue of the half section in controversy, from which judgment both parties appeal. From the findings of the Court contained in the record, it appears that defendant endeavored, by two separate applica [390] tions, to locate the southwest quarter of said section, under the Act of April 27th, 1863, entitled “An Act to provide for the sale of certain lands belonging to the State.” (Statutes of 1863, p. 591.) The first application by defendant was made November 20th, 1867, for the location of the southwest quarter and northwest quarter, and the northeast quarter of the southwest quarter, of said section sixteen, which application was accepted by the State Locating Agent on the 17th of December, 1867, approved by the State Surveyor General April 8th, 1868, and a certificate of purchase issued by the State Register to defendant therefor July 20th, 1868. The second application of defendant was made May 6th, 1868, for the southeast quarter of the southwest quarter of said section, which application was approved by the Surveyor General on the 5th day of January, 1869. That defendant, on the 9th day of June, 1863, made application to- locate and purchase the northwest quarter of the same section, under the Act of March 28th, 1868, entitled “An Act to provide for the management and sale of the lands belonging to the State” (Statutes of 1867-8, p. 507), which application was accepted by the Surveyor General on the 12th day of June, 1868; and thereafter, in December, 1868, a certificate of purchase was duly issued therefor, to defendant, by the State Register. These several locations of defendant embraced the entire west half of said section sixteen. That on the 6th day of February, 1869, plaintiff made application to locate and purchase the same half section, under said Act of March 28th, 1868, which application was duly accepted by the Surveyor General of the State, upon condition that applicant-comply with all the provisions of said Act of March 28th, 1868. It further appears that, as early as 1860, a house and corral was built upon said half section, being upon the southeast [391] quarter of the southwest quarter thereof, but by whom they were built does not appear; that said house was occiqiied, at various times, by sheep shearers and other lessees of an adjoining tract of land, owned by a company known as the “French Company;” that about the 1st of Hovember, 1868, the plaintiff leased the adjoining tract of land, owned by the French Company, and thereupon entered into the possession of said house, which was then vacant, and continued to occupy it until the 5th day of February, 1869, when he bought of W. H. Good, who claimed, in selling it, to be acting for one Chamin, who had succeeded to the title of the French Company to said adjoining tract of land; that Good supposed the house was on the land of the French Company until after December 1st, 1868. It further appears that no notice was given by the State Locating Agent, as provided by the fifth section of the Act of April 27th, 1863, above referred to. From the foregoing facts, it seems very clear that the locations of the southwest quarter of section sixteen, attempted by defendant in his separate applications of the 20th of November, 1867, and 6th of May, 1868, under the said Act of April 27th, 1863, were both invalid and ineffectual to vest in him any right to the lands described in his applications, by reason of the absence of the notice to the occupant or claimant of the house and corral then located upon said section sixteen, as required by section five of said Act of 1863. That a house and corral are improvements of the character contemplated by the statute, requiring such notice, we have no doubt; and under this statute, during the existence of such improvements upon any portions of a sixteenth or thirty-sixth section of the public lands, unless the party occupying or claiming such improvements has acquired a preemption right to some specified part of such section, no valid location of any portion of such section can be made by a stranger to such improvements until sixty days shall have [392] elapsed after the notice required by section five has been given, and the evidence of such notice having been given must accompany the application. The statute of March 28th, 1868, above referred to, in direct terms repeals the said Act of April 27th, 1863, but protects parties who were in the occupancy of any portions of sections sixteen or thirty-six at the date of the passage of the Act, by giving them six months from the date of its passage within which to make location and purchase under the new Act. (Statutes of 1867-8, p. 522, Sec. 23.) This Act took effect May 28th, 1868, sixty days after its passage. Defendant’s application to locate and purchase the northwest quarter of said section sixteen is defective and invalid, by reason of the affidavit upon which the application was made failing to state the facts required by section fifty-two of the -Act. The statute requires the applicant who desires to purchase any portion, not less than the smallest legal subdivision, of a sixteenth or thirty-sixth section, to make affidavit stating certain facts, among which are, “that he or she is desirous to purchase said lands (giving a description thereof by legal subdivisions) under the provisions of this Act.” The affidavit of defendant of June 9th, 1868, for the northwest quarter, fails to state that he desired to purchase the land under the Act of March 28th, 1868, and fails to describe the land by legal subdivision, or otherwise. This positive requirement of the statute being omitted, or not complied with, the application was invalid and nugatory. The Legislature has thought proper to require the above, facts to be embodied in an affidavit of the applicant, and it is not for the Court to determine that the same items may as well be embodied in a statement of the applicant not verified by his oath, or to sanction a different form or mode of [393] proceeding in the purchase of these lands* from that prescribed by the legislative department. The second application of defendant for the purchase of the southeast quarter of the southwest quarter of said section sixteen, made January 11th, 1869, the Court below finds to be “the same in form and substance” as the one of June 9th, 1868, just commented upon; hence, as appears by the record, the defendant has never made application for the purchase of any portion of the lands in controversy in conformity with the law in force at the time such application was made, and is not entitled to purchase any portion thereof by virtue of such application. The application of plaintiff" of the sixth of February seems to have been strictly in conformity with the Act of March 28th, 1868, and entitles him to purchase the entire west half of section sixteen, in township fourteen north, of range three west, Mount ífiablo base and meridian. The judgment of the District Court is therefore reversed, and said Court is directed to enter judgment for plaintiff Hildebrand in accordance with this opinion. Mr. Justice Temple did not express an opinion.