People v. Banning Co.

SHAW, J.

The defendant appeals from the judgment and from an order denying a new trial.

The action was begun to obtain a decree adjudging that plaintiff is the owner of the land embraced in two tide land locations, numbered respectively 152 and 153, for which patents have been issued by the state officers and declaring that the claims of the defendant under said patents are invalid. Judgment below was given for the plaintiff.

All of the land is situated within two miles of the corporate limits of the town of Wilmington as incorporated by the act of 1872. (Stats. 1871-72, p. 108.) This act was repealed on March 12, 1887, [Stats. 1887, pp. 108, 109], and said incorporation thereupon ceased to exist. Tide land location 152 includes 345.12 acres, and tide land location 153

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includes 51.12 acres. The proceedings for the purchases were taken on the same dates. The applications and surveys were approved on February 9, 1888, the first payments of one-fifth of the price were made on February 28, 1888, the certificates of purchase were issued on March 8, 1888, final payments were made on February 1, 1902, and the patents were executed on February 5, 1902. Patent for No. 152 was issued to William Banning and that for No. 153 to J. B. Banning. The defendant has succeeded to all the title of the said patentees.

Proceedings for the incorporation of the city of San Pedro under the general law of 1883 [Stats. 1883, p. 93] were pending on February 9, 1888, when the aforesaid applications and surveys were approved. The act of 1883 provides that, after canvassing the returns of the election, if a majority is found to favor incorporation, the supervisors shall “by an order entered upon their minutes declare such territory duly incorporated, and that they shall thereupon cause a duly certified copy of the order to be filed in the office of the secretary of state, and from and after the date of such filing such incorporation shall be deemed complete.” The votes were canvassed and the order declaring the territory incorporated as the city of San Pedro was duly entered on the minutes on February 27, 1888. The certified copy of that order was not filed with the secretary of state until March 1, 1888. The first payment for these lands, amounting to $79.25 in all, it will be noted, was paid-in this short interval that is, on February 28, 1888.