Keeran v. Allen
Before: Sawyer, Shafter
Synopsis
Federal Homestead Act.—If a State has sold land as swamp and overflowed to one person, and the same is claimed as a homestead under the Federal Homestead Act by another, the land, if not swamp and overflowed, is not taken out of the operation of the Homestead Law by the Acts of Congress for the relief of purchasers and locators of swamp and overflowed lands, passed March 2d, 1855, and to confirm to the several States the swamp and overflowed lands, approved March 7th, 1857.
Homestead and Pre-Emption Claimants.—The rights of claimants under the pre-emption and homestéad laws of the United States are not affected by the Act of Congress of July 23d, 1866, entitled “ An Act to quiet land titles in California.”
What is Swamp and Overflowed Land.—If land subject to overflow was, September 28th, 1850, such that annually, after the subsidence of the water, a crop of either wheat, rye, barley, oats, corn, buckwheat, peas or beans could be raised on it, it was not swamp and overflowed within the meaning of the Act devoting such land to the States.
Proof that Land is Swamp and Overflowed.—In trying the issue whether land is swamp or overflowed, if the same has not been cultivated, evidence may be introduced to show that crops may be raised on land in the neighborhood similarly situated.
Evidence. Improperly Admitted. — The appellant cannot-avail himself of the point that testimony was improperly admitted, unless he objected to it below and excepts.
Patent as Evidence.—A patent from the State for land sold as swamp and overflowed is not prima facie evidence that the land is such, as against one claiming under the General Government.
When Court will not Review Evidence.—When there has been no motion for a new trial, the appellate Court will not review the case upon the evidence.
Opinion — Shafter
By the Court, Shafter, J.: Questions arising in this case were passed upon by us in 27 Cal. 91, and in 31 Cal. 461. The case comes here upon an appeal from the judgment, aided by a statement of errors alleged to have occurred at the trial.
The plaintiff made title to the premises as swamp and [546]overflowed lands under a patent from the State. The defendant claimed them under the Homestead Law of 1862, and introduced evidence, subject to objection, tending to prove an equitable right to the land under said Act, as against the Government. The objection to the evidence was that “ the land was not subject to entry as homestead, because taken out of the operation of the Homestead Law by an Act for the relief of purchasers and locators of swamp and overflowed lands, passed March 2d, 1855, and an Act to confirm to the several States the swamp and overflowed lands, approved March 7th, 1857. (See Lester’s Land Laws, Nos. 275, 319.)
We have given these Acts an attentive examination. As to the Act of 1855, its purpose and effect have been so clearly misapprehended that the error could not be made more manifest than it is on the face of the statute, by any amount of exposition; while, as to the Act of 1857, the confirmation, provided for herein, is expressly limited to selections of swamp and overflowed lands “ theretofore made and reported to the Commissioner of the General Land Office.” There is nothing in the record showing that the lands in controversy were ever reported as State selections to the Commissioner; and the confirmation asserted must fail for that reason.
Second—The farther claim that the premises were confirmed to the State, and that its title, resting in the plaintiff, was made perfect by the operation of the Act of Congress of July 23d, 1866, entitled “An Act to quiet land titles in California,” is equally -unfounded. The rights of claimants under the pre-emption and homestead laws of the Hnited States are not affected by the confirmation for which the Act provides, but are expressly saved therefrom by the first section of the Act.
Third—The Court instructed the jury that “if, at the date of the grant, September 28th, 1850, the land was such that, regularly and annually, after the subsidence of the waters, a crop of either wheat, rye, barley, oats, corn, buckwheat, peas or beans could be successfully cultivated and produced, then the land was not rendered unfit for cultiva-
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