In Re Scott

THE COURT.

This ease, originally appealed to this court, was transferred to the district court of appeal of the first appellate district, division one, for hearing and determination. Subsequent to decision by that court a hearing was ordered in this court, and the matter has been ordered submitted herein for decision upon the briefs on file.

The opinion of the district court of appeal, prepared by Mr. Justice Kerrigan, was in part as follows:

“This is an action brought under the provisions of the Torrens Land Act, wherein the petitioners seek a decree establishing in themselves title to certain school lands described in the complaint.

“The facts are stated in the decision of a former appeal in this case

(Matter of Application of Scott,

172 Cal. 363, [156 Pac. 872]). Briefly stated, they are as follows: Petitioners claim to be the owners of school section 36, township 13 south, range 13 east, S. B. M., in Imperial County, according to the original United States survey made in 1856, and as delineated on the map thereof, which was approved March 2, 1857, and which section was located as tract 57 of

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the resurvey of the township under the act of Congress of July 1, 1902, c. 1377, 32 Stat. 728. i ..The petition states that tract 57 of the resurvey is section 36 of the original survey, and that defendants are occupants of a portion thereof. Defendants admit by their answers that Scott is the grantee of the state of California of section 36, but claim that that section is not identical with tract 57 of the new survey, but that the latter is identical with section 33; and defendants asserted ownership in themselves of tract 57 as being section 33, township 13, under their respective desert land entries. Judgment went for petitioners.

“Every material argument here advanced by appellants was presented by them on the former appeal, and those necessary for a decision were decided adversely to their contention in that case, and the material questions here presented were there finally adjudicated and disposed of. In substance it was there held that under the act of Congress of July 1, 1902, providing for a resurvey of certain townships now situated in Imperial County, to cure the obliterations of the monuments of the original survey, the new sur- ■ vey 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; and school sections which had passed to the state of California upon the approval of the old survey are governed, in respect of their boundaries, by the resurvey, which absolutely controls.