Belcher v. Farren

Temple, C. — This is a contest over the right to purchase swamp and overflowed lands from the state. There are three applicants. Farren’s application was filed before the segregation, and under the recent decision of Buchanan v. Nagle, 88 Cal. 591, the judgment denying his right to purchase must be affirmed. Belcher’s application was made after the survey and segregation, but he is not an actual settler, and the court finds that the land is suitable for cultivation, and on the authority of Fulton v. Brannan, 88 Cal. 454, the judgment must be affirmed as to him, unless it appears that there was error at the trial such as will necessitate a reversal. We find no such error. The facts, we think, show, independently of the opinion evidence complained of, that the land is suitable for cultivation. The land is level, free from serious obstruction to plowing, the soil a rich, sandy loam. It is near Lake Tulare, but has been dry for some years; and there is evidence that the lake is steadily receding year by year. If in such a soil crops sometimes, or often, fail through drought, it cannot be said, in this state, that the land is therefore unsuitable for cultivation. The defendant Ford is found to be an actual settler on the east half of the section. Her residence seems, from the evidence, to be somewhat ideal. The purchaser is required to be an actual settler. He must show something more than that he has eaten and slept on the place,besides having a cabin there, and that he has made some fanciful attempts at planting trees, and cultivation. The- section means real settlers on the land, and not occasional visitors. It does not contemplate casual acts, done, not in good faith to make a home, but simply to secure cheap land. Although if a home is actually established, motives cannot be further questioned. At the trial it appeared that defendant Ford was a widow, born in Ireland. Her parents never came to this country, and she was never naturalized. After she [78] came to the United States she married, as she says, a .naturalized citizen. If she did so, under the law of Congress she became a citizen. She had no record evidence, however, to prove the naturalization of her husband. Objection was made to the parol proof, and counsel asked to have her application stricken out. We are constrained to hold, under the decisions, that the evidence was incompetent. (Miller v. Prentice, 82 Cal. 104; Bode v. Trimmer, 82 Cal. 518; Prentice v. Miller, 82 Cal. 575.) In the last case it is said: “ And, like any other judicial record, must be proved by the record itself, or a properly exemplified copy thereof, or by proof of its loss or destruction. (Charles Green’s Sons v. Salas, 31 Fed. Rep. 107.) There are, however, certain limitations to this rule; for after proper proof of the naturalization of the parents of alien children who were under twenty-one years of age and residents of the United States at the time their parents were naturalized, parol evidence may be received to prove the minority and residence of the children, in order to show that they are citizens (U. S. Rev. Stats., sec. 2172); and proof of naturalization may also be by the parol evidence of'the party, in the form of an affidavit, in proceedings.concerning mining claims, by virtue of section 2321 of the Revised Statutes of the United States; but the appellant does not come within either of these limitations.” This quotation is made because it intimates that in case of the children they must also prove the naturalization of their parents by the record, •— a case parallel to the present. The other facts which it is said they may prove by parol constitute no exception to the rule, which is simply that an ordinary naturalization is effected by a judgment, and it must be proven as other judgments are. So the cases cited by the respondent, if they are properly called naturalizations, are not by judgment, and [79] the practice in such cases throws no light upon the point involved here. We think the judgment, so far as it adjudges that plaintiff and defendant Farren are not entitled to purchase the land in question, should be affirmed, as also the motion denying defendant Farren a new trial; and that as to defendant Ford, the judgment should be reversed and a new trial ordered. Vanclief, C., and Foote, C., concurred. The Court. — For the reasons given in the foregoing opinion, the judgment as to plaintiff and defendant Farren, and the order denying defendant Farren’s motion for a new trial, are affirmed; and the judgment as to defendant Ford is reversed, and a new trial ordered.