Sawyer, J., concurring specially: The plaintiff claims title under a patent from the United States, bearing date the first day of September, 1863. The patent purports by its recitals to have been issued in pursuance of the location of a soldier’s bounty land varrant, number eighty-nine thousand two hundred fiftysix, for one hundred sixty acres of land.
The defendant claims title under a patent of the State of California, dated the eighth' day of January, 1862, issued to David S. Terry upon the location of State school land warrants in pursuance of the several Acts of the State of California authorizing said school land warrants to be located upon any part of the five hundred thousand acres of the public lands granted to the State of California by the Act of Congress of the fourth of September, 1841, entitled “ An Act to appropriate the proceeds of the sales of public lands and to grant pre-emption rights,” and appointing the holders of said school land warrants the agents of the States to select said lands. The location of school land warrants, in pursuance of which the patent issued to Terry, was made on the fourteenth of May, 1856. Both, therefore, ultimately claim under the' United States, and the question is which has the elder title.
. Knowing that the defendant’s title had its inception at the date of the location of the school land warrant, May 14th, 1856, and that his patent was first in point of time, plaintiff, with a view of claiming a pre-emption right, under the Act of Congress, introduced testimony tending to show a settlement long prior to the date of the location of defendant’s school land warrant; and that he filed his declaratory statement in the proper Land Office at Marysville on the sixteenth of April, 1856. To show that he regularly followed up his pre-emption claim till it resulted in a patent, and for the pur[87]pose of showing that the question of priority was res adjudicata between him and defendant’s grantors, and that the latter were estopped from further contesting the matter, he produced from the custody of the Register of the Land Office at Stockton, and introduced in evidence the written memoranda of pertain proceedings, in which the claims of the respective parties were contested between him and Terry, before the Register of the Land Office at Stockton, and, on appeal, before the Commissioner of the General Land Office and Secretary of the Interior, in which the decision of the latter officer was in favor of plaintiff and against Terry. The defendant objected to the introduction of all this evidence as irrelevant, and because it contradicted the recitals of the patent, which appeared to have been issued in pursuance of a location of a soldier’s bounty land warrant; and it was further objected to some of the papers, that the recitals therein contained were not evidence of the truth of the facts recited, as against the defendant.
The objection to the evidence tending to show that plaintiff had acquired a pre-emption right, and that the patent connects itself with, and perfects such right, is not tenable. This evidence is in no respect inconsistent with the recitals, or anything else contained in the patent. The Act of Congress of March 22d, 1852, (10 U. S. Statutes at Large, p. 3,) provides that land warrants of the kind recited in the patent, may be used by a person entitled to a pre-emption right to any land in payment for the same. A pre-emption right is simply the first right to purchase—the right to purchase upon certain terms in preference to any other person. When the Department determines that a pre-emption right exists, it simply determines that the applicant has a right to purchase. The rest relates to payment and .the issuing of a patent. The payment may be either in cash, or by location of a soldier’s bounty land warrant. There is no good reason in either case for requiring the patent to show that the purchaser was entitled to a pre-emption right. It is enough that the Government allows the purchase and issues a patent. I am not aware of any statute requiring the patent, whether [88]issued upon a cash payment or in pursuance of the location of a bounty land warrant, to recite that the’ patentee had acquired a pre-emption right, or to refer in any manner to the pre-emption right; nor am I aware that any such recital is, in practice, ever made. Proof by other evidence that the patent was issued in pursuance of a purchase made under the Act allowing pre-emptions, and to perfect a pre-emption right, in no respect contradicts the recitals of the patent, but on the contrary it is in entire harmony with the provisions of the statute allowing lands thus claimed to be paid for by the location of a warrant upon them. Proof of the existence of a valid pre-emption right at the time of the location by the State agent, and that the right was regularly followed up to a patent, is relevant and admissible; for the State was not authorized to select lands upon which a valid pre-emption right existed at the time of the selection. The propriety of admitting evidence to connect the patent with the prior entry, to show whose right first attached, in cases of conflicting patents, is recognized by the Supreme Court of the United States. In Bagnell v. Broderick, 13 Peters, 450-1, the Court say: “We have been referred to the case of Boss v. Borland, 1 Peters, 662, as an adjudication involving the principles in tins case. We do not think so. In that case there were conflicting patents, the younger being founded on an apjaropriation of the specific land, by an entry in the Land Office of earlier date than the senior patent. The Court held that the entry and junior patent could be given in evidence in connection as one title, so as to overreach the elder patent. The practice of giving in evidence a special entry in aid of a patent, and dating the legal title from the date of entry, is familiar in some of the States, and especially in Tennessee; yet the entry can only come in aid of a legal title, and is no evidence of such title standing alone, when opposed to a patent for the same land. Where the title lias passed out of the United States by conflicting patents, as it had in the case of 6 Peters, there can be no objection to the practice adopted by the Courts of Mississippi to give effect to the better right, in any form of remedy the Legislature or Courts of the State
If the selection of Terry as agent of the State in pursuance of the Act of Congress, and the Acts of the Legislature of California, after the lands were open to selection, was first in time, by such .selection the land became segregated from the public domain, and the legislative grant at once attached to that specific tract of land, and it was no longer subject to pre-emption. If, on the contrary, a valid pre-emption right first attached, and it was subsequently regularly followed up to a patent, the land was not subject to selection. (Terry v. Megerle, 24 Cal. 625.) At the time when the contest between Terry and Megerle before the Register of the Land Office commenced, the question between them was, whether the right had already passed from the United States by virtue of the grant to California, and selection by Terry as agent of the State, at the time the effective pre-emption claim attached. This was not a question within the jurisdiction of the several officers of the Land Department of the United States Government to adj udicate. It would, in substance, be a litigation of the title between the United States Government, and Terry claiming under a grant already made, on an application by Megerle to the Government for a purchase of the land. Ho such jurisdiction is conferred on the officers of the Land Department. For the purposes of the contest, the Land Department and the Secretary of the Interior necessarily assumed, as the foundation of their jurisdiction, that the United States Government owned the land, and that it was open to preemption by somebody—the very point now in contest; and assuming this point, the jurisdiction extended to a determination, as between the Government and the contestants of the rights of parties seeking to purchase. Terry did not occupy the position of such a party, and he was not seeking to purchase of the United States. He claimed that he had already acquired a right under a grant made to California, and that [90]the grant had attached to the specific tract and the title had actually vested in the State, by virtue of bis location; and those tribunals had no jurisdiction to finally adjudicate his rights. Their determination, therefore, did not conclude him. It follows that the record of the proceedings before the various officers of the Land Department, in the contest between Terry and Megerle, was not admissible in evidence as matter of estoppel against Terry, by showing that the matter had already been adjudged; nor for the purpose of proving, as against Terry, the truth of the matters recited in the various opinions and documents. These documents are admissible, however, in connection with evidence of an entry and possession with a view of pre-empting and oilier acts tending to show that Megerle followed up his entry, for the purpose of showing that he himself regularly pursued his right, and that the Government actually recognized a pre-emption right, and finally issued the patent in pursuance of, and to give effect to, such recognized right. As against Terry’s patent, we think it was necessary for Megerle to prove the facts essential to show his right to a pre-emption— that is to say, his qualifications, entry and the other facts designated by the Act of Congress, Which are necessary to confer the right, by evidence independent of the recitals in the record of the contest with Terry, as those recitals are not evidence for that purpose against Terry. That a party relying upon a pre-emption right must prove the facts which entitle him to it, we held in Page v. Hobbs, 27 Cal. 484. The same principle was adopted by Mr. Justice Field, in an opinion delivered at the last term of the Circuit Court of the United States held by him in San Francisco, in the case of Gimmy v. Oulverson. These essential facts were not proved at the last trial. Besides, the memoranda produced from the custody of the Register of the Land Office were evidently admitted as matter of estoppel, and for other purposes than merely to show the fact that Megerle regularly followed up ■his pre-emption claim, and that a pre-emption right was recognized by the Land Department, and the patent, in fact, whether rightfully or wrongfully, issued in pursuance of it.
It appeared in evidence that the township including the lands in question was surveyed in the field in May and June, 1855 ; that the plat of the survey was approved by the Surveyor G-eneral October 19th, 1855, and was returned to and received in the Register’s office at Marysville, “ but as to when the said map was actually filed in the Land- Office at Marysville, there was no proof offered by either party, except the map itself, and the indorsement thereon.” There was an indorsement, as follows: “Filed December 5, 1855, Marysville Land Office,” but it was unauthenticated by the signature of any party, and on this ground the plaintiff objected to its introduction. It was admitted, however, for what it was worth. The date of the filing is important to both parties, for, till the lands are finally surveyed, the plaintiff was not authorized to file his declaratory statement, and if his declaratory statement was not filed within three months after the filing of the plats in the Land Office, his pre-emption right would not connect itself with his prior possession, and date by relation from the time of the first entry. So, also, defendant’s grantor was not authorized to locate his schqol land warrants until the lands were finally surveyed.
I am of opinion that this naked unauthenticated indorsement of itself, is not evidence of the date of the filing. Perhaps it might be so connected with other evidence relating to it, as to make it admissible with such explanatory testimony. But standing by itself, it is of no value. Independent of this there is no legal evidence tending to show the date of the filing, and it is impossible to determine from the record whether Megerle’s declaratory statement' was filed in time to connect his pre-emption right with his original entry, so as [92]to protect him from that date, or whether Terry’s school land warrant was duly located.
If Megerle failed to file his declaratory statement within the time required by the statute after the filing of the plats in the Land Office, his pre-emption right would not date by relation from the time of his first entry with a view to acquiring such a right. It may be, if no other party acquired any rights in the land after the expiration of the three months, and before the filing of Megerle’s declaratory statement, that a new pre-emption right would attach, dating from the filing of such statement. The lands during that period were open for pre-emption to everybody having the necessary qualifications, and there does not seem to be any good reason why Megerle himself should stand in any worse position than other parties. ■ And such seems to be the construction put upon the Act of Congress by the officers of the United States Government. (Lester's Land Laws, No. 458, p. 405.)
But this point has not been thoroughly discussed in the case, and it is unnecessary to decide it now. Besides, it may not arise on the next trial. I find nothing in Bagnell v. Broderick, 13 Pet. 446, or in any other case cited by respondent, in conflict with the views here expressed. The questions in the cases cited are entirely different.
Upon the grounds indicated, I think the judgment should be reversed and a new trial had.
Mr. Chief Justice Currey did not express an opinion.