Mace v. Merrill

Sharpstein, J.: On the 22nd day of June, 1857, J. C. Merrill, attorney in fact of Edward Merrill, located a "school-land warrant on the south-east quarter of section 21, township 2 south, range 13 west, S. B. M., which was then unsurveyed land of the United States. On the 30th of April, 1858, Merrill applied to the Surveyor-General to relocate the warrant upon the same land, and on the llth of August, 1868, the location was made by the State locating agent. On the 27th of July, 1872, Merrill filed in the United States land office an application to purchase said land under the provisions of §§ 1 and 3 of an Act of Congress “ quieting land titles in California,” approved July 23rd, 1866. Merrill’s right to purchase was contested by Mace, the appellant herein, and denied by the local land officers. An appeal was taken to thé commissioner of the general land office, and from thence to the Secretary of the Interior. Both the commissioner and Secretary were of the opinion that the location by Merrill was valid; and in pursuance thereof, the land was duly certified over to the State, in satisfaction of said selection and location. In Wilkinson v. Merrill, 52 Cal. 424, it was held, that the decision of the land department of the United States, to which “ all the questions of law and fact pertaining to the proceeding were especially confided,” was conclusive as against the United States, and against the plaintiff in that action, who subsequently attempted to acquire the title from the State. As before stated, the appellant herein was a party to the contest before the land department, to which the Court refers in the [556] case above cited, and the decision of the department, if conclusive as against Wilkinson, is equally so as against appellant. The latter claims to have alleged and proved some facts which were not alleged and proved in Wilkinson v. Merrill, supra; but we are unable to discover that he has presented anything which takes his case out of the doctrine of that case. If the principle upon which that decision is based be sound, and we think that it is, it seems to us to be decisive of this case. And the grounds of that decision are so plainly and succinctly stated, as to render a restatement of them wholly unnecessary. Judgment and order affirmed. McKinstry, J., McKee, J., and Thornton, J., concurred.