Jordan v. Kingsbury

[167]

RICHARDS, J.

This is a proceeding wherein the plaintiff sought and obtained in the trial court a peremptory writ of mandate, requiring the defendant, as surveyor general of California and register of the state land-office to approve the plaintiff’s application to purchase from the state those certain lands described in his petition. From a judgment to that effect the surveyor general appeals.

The facts of the case are practically undisputed and are quite fully and clearly set forth in the brief of appellant. In the year 1869, an official survey was made by authority of the United States government of those sixteenth and thirty-sixth sections of the public lands which had been granted by the government to the state of California for school purposes, under the act of Congress of March 3, 1853. [10 Stats. 244, c. 145]. Between the year 1869 and the year 1893, the state of California had sold and issued patents for all of the lands embraced within the said section 36, in which the lands sought to be purchased by plaintiff are now claimed to be. In the year 1893, the United States government ordered another official survey to be made of the public lands within that region. By this later, and probably more accurate, survey, the boundary lines of said section 36 were shifted southward and also slightly eastward, so as to embrace a considerable tract of land on the southward side and a narrow strip on the eastward side not theretofore included within the older section lines. The tract of land now sought to be purchased by the plaintiff lies within these newer boundaries but outside of the lands originally surveyed. The application of the plaintiff to purchase these lands was disapproved and denied by the surveyor general, upon the chief ground, as expressed in his decision disapproving the same, that the lands sought to be purchased belonged to the United States and not to the state. In opposing the application for the writ of mandate, the defendant urged two additional reasons why it should be denied. These were: 1. That the decision of the surveyor general is final upon an application to purchase state lands, and hence is not reviewable by the courts; and 2. That the granting of the writ of mandate would lead to great confusion between the state and federal governments as to the boundaries of state and federal lands. It is conceded by the surveyor general that the application of the plaintiff to purchase