Athearn v. Poppe

Sanderson, C. J. These are actions of ejectment. In the Court below the plaintiffs recovered judgment. The defendants appealed to this Court, and the judgments were reversed and the Court below directed to enter judgments in favor of the defendants. The plaintiffs now present wiits of error directed to the Justices of this Court, issued by the Clerk of the Circuit Court of the United States for the Northern District of California, and ask that citations to the defendants in error maybe issued. The plaintiffs claim title by virtue of the location of School land warrants and a patent issued by and under the laws of this State. The defendants claim title under the pre-emption laws of the United States. The defendants had occupied and [633]settled upon the lands in controversy as pre-emptioners under the laws of the United States prior to the location by plaintiffs of their School warrants under the laws of this State.

No opinions were delivered by the Court in these cases, but they were decided in general terms upon the authority of Terry v. Megerle, 24 Cal. 609, decided at the same term, the controlling questions in all three being similar in the judgment of the Court. Hence, the precise grounds upon which the decision of these cases was based does not appear, nor has it been specifically' determined what questions were necessarily involved therein.

It is claimed that these cases fall within the third class mentioned in the twenty-fifth section of the Federal Judiciary Act of seventeen hundred and eighty-nine, which is described thus : “Or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commissionand it is argued that we have construed the eighth section of the Act of Congress of the 4th of September, 1841, entitled an Act “to appropriate the proceeds of the sales of the public lands and to grant pre-emption rights;” and also the sixth section of the Act of March 3d, 1853, providing for the survey of public lands in California and the granting of pre-emption rights-therein, and other purposes; and that we have decided against the title of the plaintiffs “specially set up or claimed” under-those statutes. If this has been done and the same was; necessary to a complete determination of these cases, the plaintiffs are undoubtedly respectively entitled to their citations.