Lyders v. Wilsey

California Court of Appeal Oct 26, 1928 No. Docket No. 6083.Published

Before: Nourse

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Holding. The court affirmed the trial court's judgment, holding that the evidence supported the findings that no conspiracy existed between the defendants and that the defendant was not a deputy county surveyor, thereby entitling him to purchase the land as the prior applicant.

Issues

Whether the evidence supported the trial court's finding that no conspiracy existed between the defendants to defraud the plaintiff.
Whether the defendant was a de jure or de facto deputy county surveyor, thereby disqualifying him from purchasing the land as a matter of public policy.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The material facts of the case are all undisputed and fully sustain the findings of the trial court adverse to the plaintiff.”

“The evidence is plain and undisputed that the respondent Wilsey was never at any time alleged in the complaint appointed or designated as a deputy county surveyor”

“But an inference is a deduction to be drawn from the facts proved and not a conclusion based upon suspicion alone.”

[494]

NOURSE, J.

This is a special proceeding arising out of a contest between two applicants for the purchase of swamp or overflowed lands of the state and referred to the superior court of San Mateo County for trial and decision by the surveyor-general of the state under the provisions of section 3414 et seq. of the Political Code.

The plaintiff, who is last in time in filing his application, charges in his complaint that he was delayed in receiving a survey from the county surveyor of San Mateo County and charges, upon information and belief, that this delay was the result of a conspiracy on the • part of the county surveyor and defendant Wilsey, who is the other applicant for the right to purchase the lands in controversy. For the purpose of raising this issue the complaint alleges that the defendant Kneese, who at all times was the county surveyor of San Mateo County, had employed Wilsey as a deputy county surveyor in his office, and that the county surveyor, having learned through the plaintiff that the lands in controversy were open to purchase from the state, conveyed this information to his co-defendant and that he and his co-defendant then conspired to so delay action upon plaintiff’s application for a survey as to permit the defendant Wilsey to procure a survey of the same lands and file his application with the state surveyor-general for leave to purchase prior to the time when the plaintiff made similar application.

The material facts of the case are all undisputed and fully sustain the findings of the trial court adverse to the plaintiff. The uncontradicted evidence discloses that on March 20, 1924, the defendant Wilsey, assuming that under the law his application should be made directly to the state, wrote to the registrar of the state land office at Sacramento for information leading to the purchase of the lands in contrdversy. This letter was delivered to the registrar of the federal land office in Sacramento and by him forwarded to the federal land office in San Francisco and by that office returned to the state surveyor-general in Sacramento, in which office it was received on March 25, 1924. On March 22d of the same year the defendant Wilsey filed with the county surveyor of San Mateo County a written application for a survey of the land in question. On March

[495]

Lyders v. Wilsey

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NOURSE, J.

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