Miller v. Marchus
Before: Melvin
Synopsis
Public Lands — Bestjrvey oe Lands in San Diego County — Act or Congress op July 1, 1902 — New Survey Supersedes Old — Boundaries op School Lands.—Nichols v. McCullom, 169 Cal. 611, approved, to tlie effect that under the act of Congress of July 1, 1902, providing for a resurvey of specified townships in San Diego County (now Imperial County), the new survey supersedes the old one, and regulates the disposition of the public lands within the area affected as to all persons not in the actual occupancy of the land; that unoccupied sixteenth and thirty-sixth sections passing to the state of California upon the approval of the old survey are governed, in respect of their boundaries, by the resurvey; and that parties going upon the land after the passage of the act, and with constructive knowledge that the resurvey was to be made, took the chance that such survey might establish that the land occupied by them was a school section, and not subject to entry as vacant lands of the United States.
MELVIN, J.
Plaintiff sued in ejectment. Judgment on the pleadings was entered in plaintiff’s favor and defendants appeal.
The property involved is included within the resurvey by the United States of certain lands in Imperial County of which this court was concerned in the discussion of the issues presented by the appeal in the ease of
Nichols
v.
McCullom,
169 Cal. 611, [147 Pac. 271]. Plaintiff asserts title under a grant from the state of California of the property described as follows:
“The South half (S. ½) of the Southeast quarter (SE. ¼)> the Northeast quarter (NE. ¼) of the Southeast quarter (SE. ¼), and the Southeast quarter (SE. ¼) of the North
[258]
east quarter (NE. ¼) of Section thirty-six (36), Township fifteen (15) south, Range twelve (12) east, San Bernardino Meridian, containing one hundred and sixty (160) acres, and which said section thirty-six (36), is correctly described on the plat of resurvey of Township sixteen (16) south, Range twelve (12) East, San Bernardino Meridian, as 'reserved for survey of school section thirty-six (36), Township fifteen (15) South, Range twelve (12) east, (640).’ ” The pleading sets forth the fact that by certificate of purchase No. 14,900 dated August 27, 1900, the state of California sold the said lands to A. E. Dodson, who went into possession thereof and in 1904 conveyed his title to plaintiff; and that on March 11, 1911, the state of California granted said land to plaintiff. The payment of all taxes by plaintiff and his predecessors is alleged and the complaint also contains averments that plaintiff was ousted of possession by defendants in 1906 and that they refuse his demands for the restitution of the property. Defendants by their answer deny that any actual survey was made in Imperial Valley in 1856 and stigmatize the field-notes of Matheson purporting to apply to such a survey as “fictitious.” They admit that in 1908, pursuant to an act of Congress of 1902, a resurvey was made of certain lands in Imperial County, but deny that the lands described in the complaint fall correctly into section 36 of any survey or that “tract 106” represents any school lands. In other words, they make the same contentions that were put forward by the defendants in
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