Hodge v. McCall

OLNEY, J.

The original survey of the public lands in the Imperial Valley was exceedingly inaccurate, and when the valley came to be settled up another survey became necessary. This was made, and in its making the government subdivisions for which entry had been made were located as actually claimed by the entrymen on the ground. When so located, what theoretically should have been adjoining subdivisions were in many instances separated by small strips of land which did not come in either subdivision. The situation may be made dearer by the accompanying diagram of it as it exists in the present case.

[332]

The areas marked McCall and Hodge represent the governmental subdivisions upon which the plaintiff and the defendant, or their predecessors in interest, had respectively-entered, and to which they had acquired title from the government. The strip between them, portions of which are marked 4 and 17, is one of the strips of which we are speaking. The strips were divided into subdivisions called lots, designated by numbers, and the numbers 4 and 17 are the numbers of the lots involved in the present controversy.

The strips were too narrow to be suitable for separate homesteads or farms, and could best be improved and used in connection with the homesteads and farms which they adjoined. To meet this condition of affairs, Congress passed an act (35 Stats, at Large, 779), providing for the sale of the lots into which the strips were subdivided, at a price and under regulations prescribed by the Secretary of the Interior, but with a proviso that any land owner or entryman whose land adjoined any lot should have a preferred right to purchase the one-half of the lot which abutted on his land. The proviso reads:

“Provided that any entryman or owner of such entered or patented tract shall have a preferred right to buy one-half of all such lots as abut on lands held under his entry or owned by him within six months after the time when the said Secretary shall fix the price of such tracts and this preferred right shall not prevent such entryman or owner from buying all of such abutting lots as may remain unsold at the expiration of said six months.”

Pursuant to the act the Secretary of the Interior, through the commissioner of the land office, fixed the price at which the lots would be sold by the government and promulgated regulations for their sale. These regulations, however, instead of providing for a preferred right to each land owner to purchase one-half of any lot abutting upon his land, as the act prescribed, declared that literal compliance with the act in this particular was impossible and that preference would be given to those owners whose lands adjoined any particular lot who were best entitled to purchase under the special facts of each case.. The regulations also provided that any land owner might claim a preferred right to purchase not merely a half but all of any lot which adjoined