McLaughlin v. Woolley

ELLISON, J.,

pro

tem.

Plaintiff and defendant Woolley each made application in due form to the surveyor-general of the state to purchase a certain piece of swamp and overflowed land. Upon application of the plaintiff the surveyor-general referred the contest to the superior court of Del Norte County for trial and determination. Upon trial in that court the case was decided in favor of the plaintiff and the defendant appeals from the judgment.

It was the defendant’s contention in the court below and is here that plaintiff’s cause of action is barred by the provisions found in section 3443 of the Political Code, providing that the contestant must bring his action within thirty days after the date of the order of reference made by the surveyor-general.

The record shows without dispute that plaintiff brought his action in the superior court of Del Norte County within sixty but more than thirty days from the date of the order of reference made by the surveyor-general. Hence, if the provisions of section 3443 of the Political Code control, the contention of defendant is correct and plaintiff brought his action too late, otherwise not.

[305]

The complaint alleges (par. X) : “That plaintiff on or about the 18th day of December, 1911, made and filed in said surveyor-general’s office a verified protest against said defendant’s application to purchase said tract of land, and a request that the right to purchase said land be referred to the proper court for adjudication and determination and that the controversy and dispute has been, by the said surveyor-general referred to the superior court of the county of Del Norte, state of California, for determination of the

respective rights of the parties hereto to purchase said tract of land from the said state of California.”

The averment of the complaint, admitted to be true, is that the matter referred to the superior court of Del Norte County for adjudication was “the respective rights of the parties hereto to purchase the said tract of land from the state.”

The only provisions of the law authorizing the surveyor-general to refer to a superior court for determination the respective rights of two persons desiring to purchase the same tract of land are found in sections 3414, 3415, 3416 and 3417 of the Political Code. Section 3414 provides: “When either party demands a trial in the courts of the state he must make an order referring the contest to the district court of the county in which the land is situated.” The contest referred to in this section is a contest where two or more applicants claim the same land.