Sanford v. Maxwell

SMITH, J.

Plaintiffs and defendants are applicants for the purchase of the subdivisions of land described in the complaint, aggregating two hundred and sixty-eight and eighty hundredths acres, all of which have been listed to the state; and upon the demand of the plaintiff the contest thus arising was referred to the lower court. It is alleged in the complaint, and in the affidavit filed in the surveyor general’s office and attached to the complaint as part thereof, among other things: (1) That ever since June 17, 1901, “plaintiff has been and now is an actual

~bona fide

settler thereon”; (2) that the land “is, and at all times herein mentioned was, suitable for cultivation”; and (3) that “more than one-half of each legal subdivision thereof was and is suitable for cultivation,” etc. In the answer, besides denials, it is alleged: (1) That the plaintiff is not now and never has been in the actual possession of said land; (2) that “said land is not suitable for cultivation”; and (3) “that no legal subdivision of said land is, or at any time has been, suitable for cultivation within the meaning of section 3495 of the Political Code.” The applications of the parties are in due form and sufficient, otherwise than as affected by the facts at issue as above stated.

The court finds the allegations of the complaint as to plaintiff’s settlement on the land to be true, and it also finds the allegation of the answer to be true, that the plaintiff has never been in actual possession of said land. But the two facts are

[244]

not inconsistent, for there may be a

bona fide

settlement on land without actual possession of more than the settler’s house and its environs; and to reconcile the findings we must suppose that the finding of the court as to the actual possession refers to the land as a whole. The issues raised by the third allegation of the complaint and the corresponding allegation of the answer relate evidently to the proviso in section 3495 of the Political Code, which is “that any smallest legal subdivision of school lands shall be deemed suitable for cultivation if any part not less than one-half of its area will, without artificial irrigation, but with or without the clearing of timber or other growth therefrom, by the ordinary processes of tillage, produce ordinary agricultural crops in average quantity,” etc. The finding of the court on these issues is, in effect, that in each subdivision there are small areas of open land, clear of brush, etc., and that the subdivision may be further cleared, “more or less so as to be capable of cultivation by ordinary process of tillage by plowing,” but that in no subdivision can more than half of the area be so cultivated. But the proviso in section 3495 cited is not to be regarded as intended in any way to construe the provisions of section 3, article XVII, of the constitution, further than to provide affirmatively that every legal subdivision coming within the description shall be regarded as “suitable for cultivation”; nor is it to be construed as providing that land not coming within the description shall be held to be not “suitable for cultivation.” Otherwise, the act would be unconstitutional.