Kendall v. Bunnell

STURTEVANT, J.

On March 3, 1877, an act was approved entitled “An Act to Provide for the Sale of Desert Lands in Certain States and Territories.” (19 Stats. 377 [U. S. Comp. Stats., sec. 4674 et seq.].) On March 3, 1891, that act was amended. (26 Stats. 1096 [U. S. Comp. Stats., sec. 4677 et seq.].) On March 28,1908, the statute was further amended. (35 U. S. Stats. at Large, 52 [U. S. Comp. Stats., secs. 4681-4683].) Under the latter statute, section 1 (U. S. Comp. Stats., sec. 4861), it was provided that from

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March 28, 1908, the right to make entry under the provisions of the act of 1877 and 1891 should be restricted to surveyed public lands of the character contemplated by said acts and no such entries of unsurveyed lands should be allowed or made of record provided, “That any individual qualified to make entry of desert lands under said acts who has, prior to survey, taken possession of a tract of unsuryeyed desert land not exceeding in area 320 acres in compact form, and has reclaimed or has in good faith commenced the work of reclaiming the same, shall have the preference right to make entry of such tract under said acts, in conformity with the public land surveys, within ninety days after the filing of the -approved plat of survey in the district land office.”

Of the lands in controversy a survey was made in 1856. That survey was so defective that a resurvey was authorized by an act approved July 1, 1902. The resurvey was made and a copy was filed in the land office at Los Angeles on February 23, 1909. Such proceedings were had that an application was made by Bunnell for a tract consisting of 3-20 acres. His application was accepted; it was approved by the commissioner of the general land office; from that approval an appeal was taken to the secretary of the interior and that officer, through one of his assistants, rendered an opinion favorable to Bunnell and in accordance with that opinion a patent was issued to the applicant. Kendall, claiming to be possessed of a better title, commenced this action to obtain a judgment that Bunnell holds the legal title in trust for him. A trial was had in the superior court and a judgment was ordered in behalf of Kendall. Bunnell took an appeal and the judgment was reversed.

(Kendall

v.