Hess v. Bolinger

By the Court, Crockett, J.: The action is ejectment for the north half of the northeast quarter of section twenty-six, and the plaintiff claims under a patent from the United States for the whole quarter-section, founded on a preemption claim of the plaintiff. The answer alleges that the defendant was a qualified preemptioner, and settled upon and improved the north half of the quarter, and within the proper time filed his declaratory statement in due form, proved upon his claim, and offered to pay the purchase-price; but that the Register' and Receiver wrongfully awarded the land to the plaintiff, whose declaratory statement, though prior in time, was filed at a period when the land was not subject to pre-emption, and, moreover,. did not include the premises in controversy. The answer asks for affirmative relief, and prays that the plaintiff be adjudged to be a trustee, holding the legal title for the use of the defendant. The case was tried upon an agreed statement of facts, from which it appears that,the land which the plaintiff applied for, was described in his declaratory statement as follows: “The northeast quarter of section number twenty-six; also about thirty-five acres within my enclosure, lying along the east side of the northwest quarter of section twenty-six, hereby intending to apply in the aggregate [353] only to the extent of one hundred and sixty acres, being the amount that is embraced within my enclosure in section twenty-six, township number seven south, range number one west, Mount Diablo meridian, in the district of land subject to sale at the Land Office in San Francisco, and containing one hundred and sixty acres.” It further appears from the agreed statement that after the defendant had filed his declaratory statement, the plaintiff filed in the Land Office “ an abandonment of eighty-acres outside of the said quarter section, and included in (his) said declaratory statement, it, the said eighty acres, being the east half of the northwest quarter of section twenty-six, township seven south, range one west, Mount Diablo meridian.” It was also admitted that when the plaintiff filed his declaratory statement, he had in his actual possession, and for upwards of ten years had been in possession of more than twenty acres of the south half of the northwest quarter, and that he had never been in possession of any portion of the north half of the northeast quarter, which for more than fifteen years had been in the actual possession of the defendant’s predecessors. Construing the plaintiff’s declaratory statement in the light of these facts, it is clear that it does not include and was not intended to include the north half of the northeast quarter, the premises in controversy; and the defendant, being a qualified pre-emptioner, and having settled upon and improved the land, and having duly filed his declaratory statement, proved up his claim, and offered payment, should have been allowed to pre-empt the land. It is contended, however, that the action of the Land Department in awarding the land to the plaintiff, cannot be reviewed in the Courts. But in Hosmer v. Wallace, (47 Cal. 461,) we held that whilst in the absence of fraud or imposition, the decision by the Land Department of controverted questions of fact, which they have jurisdiction to decide, will not be reviewed by the Courts; nevertheless, an error in a matter of law by the officers of the Land Department may be corrected and the proper relief granted by the judicial department of the government. It appears from the agreed statement that the Register and Receiver [354] awarded the land to the plaintiff upon the ground, “and none other, that plaintiff was the first settler, upon said northeast quarter of section twenty-six, and on that ground had the better right, and decided that plaintiff’s said declaratory statement was properly filed for and included the said northeast quarter of section twenty-six.” It was a question of law whether the plaintiff’s declaratory statement included the north half of the quarter, to be decided on the face of the statement, interpreted in the light of the surrounding facts. As we have already seen, the declaratory statement did not include these premises, and the Begister and Beceiver committed an error of law in holding that it did. It is equally clear that, because the plaintiff settled upon and improved the south half of the quarter and filed his declaratory statement for that and the south half of the northwest quarter, this did not preclude the defendant from afterwards settling upon, improving, and preempting the north half of the quarter, which was not then claimed by the plaintiff under his declaratory statement. It, therefore, affirmatively appears that the land was awarded to the plaintiff, not through any mistake of the facts, but by an error in law on the part of the officers of the Land Department. We have not considered the objections taken, by demurrer to the answer. The facts being agreed, and having been put in evidence without objection, the plaintiff cannot now raise the point that they were inadmissible under the pleadings. The stipulation, it is true, states that the facts are admitted, “subject to all legal objections.” But if counsel considered any of the admitted facts incompetent or inadmissible under the pleadings, he should have stated his objection at the time, and have reserved an exception, if the objection was overruled. Not having done so, it is too late to raise the point now; and the defendant being entitled to judgment on the agreed statement of- facts, we ought not to reverse the judgment, even though the answer be defective in the particulars alleged. Section four hundred and seventy-five of the Code of Civil Procedure provides that in every stage of an action the Court must dis [355] regard any error or defect in the pleadings or proceedings which does not effect the substantial rights of the parties, “and no judgment shall be reversed or affected by reason of such error or defect." The defects, if there be any, in the answer, cannot, affect the substantial rights of the parties, on the facts admitted, without objection at the trial. Judgment affirmed. Remittitur forthwith*