Marsh v. Hendy

BELCHER, C. This is an action to determine a contest, arising in the state land office, as to the right to purchase from the state a certain section of swamp and overflowed land in Tulare county. During the pendency of the action other parties were permitted to intervene for the purpose of showing that neither the plaintiff nor defendant was entitled to make the purchase. After trial the court below found, among other things, that when the defendant made his application to purchase the section in controversy the land had not been segregated as swamp and overflowed land by authority of the United States; that when the plaintiff made his application to purchase the section the land was, and ever since had been, [432] suitable for cultivation; that neither the plaintiff nor defendant had ever been an actual settler upon the land; and, as a conclusion of law, that neither of them was entitled to purchase the same from the state. Judgment was accordingly so entered. Both parties moved for a new trial, and their motions were denied, and they then appealed from the judgment and orders denying their motions. Since the appeals were taken several other cases involving all the questions arising herein have been considered and passed upon by this court: See Wren v. Mangan, 88 Cal. 274, 26 Pac. 100; Fulton v. Brannan, 88 Cal. 454, 26 Pac. 506; MeNee v. Lynch, 88 Cal. 519, 26 Pac. 508; Buchanan v. Nagle, 88 Cal. 591, 26 Pac. 512; Belcher v. Farren, 89 Cal. 73, 26 Pac. 791. These cases are decisive of this, and upon their authority we advise that the judgment and orders appealed from be affirmed. We concur: Temple, C.; Vanclief, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment and orders appealed from are affirmed.