Fredericks v. Zumwalt

California Supreme Court Aug 22, 1901 No. Sac. No. 808.Published

Before: Van Dyke

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Holding. The court held that the land in question was not swamp and overflowed land under the Arkansas Act because the greater part of the legal subdivision was not wet and unfit for cultivation, and therefore the United States patent to the plaintiff's predecessor was valid. Furthermore, the state certificate of purchase held by the defendant was void because the land was excluded from state sale by statute.

Issues

Whether the land in controversy passed to the state of California as swamp and overflowed land under the Arkansas Act of 1850.
Whether the state certificate of purchase issued to the defendant's predecessor was valid under state law.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In order to have the land pass to the state under the act in question, it must appear that the greater, portion of the smallest subdivision — to wit, forty acres—is wet and unfit for cultivation.”

“The land, therefore, never became vested in the state, and was subject to grant by the United States, and passed by patent to Mathews.”

“The certificate, therefore, issued by the register of the state land-office was void”

Synopsis

The facts are stated in the opinion of the court.

VAN DYKE, J.

Action to quiet title, and appeal from a judgment in favor of plaintiff.

The premises in question consist of a portion of the southwest quarter of the southwest quarter of section 28, township 18 south, range 25 east, Mount Diablo base and meridian, in Tulare County.

The plaintiff and respondent deraigns title from one Reuben Mathews, who entered upon the subdivision embracing the premises in question as United States land, and obtained a patent for the same from the United States, January 2, 1861. The defendant and appellant claims under title derived from one Samuel Simon, who received a certificate as swamp and overflowed land from the register of the state land-office, April 8,1874.

Plaintiff’s counsel, in his brief, says: “If the land in controversy belonged to the United States when Reuben Mathews obtained his patent on January 2, 1861, then appellant has no legal title to it. If, on the other hand, said land belonged to the state of California at that time, then said land certainly belongs to appellant, for he has whatever title the state of California can give him by certificate of purchase.”

1. As to the first proposition,- Did the land belong to the United States at the date of the patent of Mathews? The official survey of township 18 south, range 25 east, Mount Diablo base and meridian, was made and sectionized, and the plat thereof approved and filed in the United States land-office, April 15,1855; and from the approved map of said survey it appeared that the greater portion of the southwest quarter of the southwest quarter of said section was returned and designated on said township plat as high and dry land, and only about 12t2t6t acres of said subdivision was designated as “swamp,” and that no portion was designated as swamp and overflowed land, or wet and unfit for cultivation. The title of the state of California to swamp and overflowed land is derived from the act of Congress, commonly called the “Arkansas Act,” approved September 28,1850. Appellant contends that

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because it appears upon the approved township plat that a portion of the subdivision in question was swamp-land, therefore that portion which is the land in controversy passed immediately to the state of California; that the grant is one

Fredericks v. Zumwalt

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Synopsis

VAN DYKE, J.

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