McGill v. Cowan

[430]

RICHARDS, J., pro tem.

This is an appeal from a judgment in the defendant’s favor, after an order sustaining his demurrer to the plaintiff’s complaint without leave to amend. The action was brought under the provisions of section 3415 of the Political Code to determine which of the parties thereto was entitled to purchase from the state of California certain unsegregated swamp and overflowed lands in the county of Siskiyou. The defendant’s application to purchase said lands was filed in the state surveyor-general’s office on May 26, 1917the plaintiff’s application to purchase the same lands was filed in the same office July 24, 1917. Both applications are set forth in full in the complaint. The only question presented upon this appeal is that of the sufficiency of the respondent’s application.

The appellant concedes that the respondent’s application complies with the requirements of section -3493 of the Political Code, but insists that it should have also complied as to its contents with section 3443 of the Political Code, which, according to the appellant’s contention, is a general section applicable to the purchase of all swamp and overflowed lands of the state. We cannot give our assent to this contention. The sections of the Political Code having special reference to the purchase from the state of portions of its unsegregated swamp and overflowed lands are sections 3493m to 3493t of article Ila of title VIII of said code. This article was added to said code in the year 1907, but was taken bodily from the act of the legislature of 1893 dealing with the same subject, which earlier act was passed in order to provide for the purchase from the state of lands uncovered by the rescission or drainage of waters of inland lakes and of unsegregated swamp and overflowed lands, for the sale of which classes.of lands by the state no previous provision had been made. The original act was apparently complete in itself in its provisions as to the application and affidavit for the purchase of such lands and the contents thereof, as to the duties of the surveyor-general in respect to the survey of.such lands, the approval of such application, the purchase price to be paid, the reclamation of the lands through the formation of reclamation districts, etc. No reference was made therein to any other acts or to any of the sections of the Political Code then in existence dealing generally with the purchase of swamp and over

[431]