Rush v. Casey

California Supreme Court Jul 1, 1870 No. No. 1,747Published

Before: Crockett

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Holding. The court held that because the trial court's findings stated the land remained under suspension until 1864, the plaintiff's 1860 land warrant location was void, necessitating a reversal and remand for a new trial.

Issues

Whether the land was subject to entry in 1860 despite a prior administrative suspension order.
Whether the appellate court may look beyond the judgment roll and findings to re-evaluate evidence on appeal.
Whether the findings of fact support the judgment rendered by the trial court.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“the location of the plaintiff’s school land warrant in 1860 was unauthorized by law, and therefore void.”

“where the findings do not support the judgment, instead of undertaking to reform the findings by an examination of the evidence, we will reverse the judgment and remand the case for a new trial.”

Synopsis

Statutory Construction.—Act of Congress.—Lands Claimed Under Mexican Grant.—Public Lands.—By Section 13 of the Act of Congress of March 3,1851, establishing the Board of Land Commissioners for the adjudicating of private land claims in the State of California, the final rejection of a claim operates, proprio vigore, to restore the land included therein to the mass of the public domain, without further action by the Land Department of the Government, and the samo becomes subject, at once, to location, or appropriation, in any manner provided by law.

School Land Warrant.—Patent.—A patent to land obtained under the location of a school land warrant on lands reserved from entry and sale, is unauthorized by law and void.

Idem. —If it appear that land was duly located by the State Locating Agent, for the benefit of the State, at the United States Land Office, with the consent of the Begister and Beceivcr, and that such location appears in their official books, a sufficient consent is thereby shown to the location, on the part oí the United States.

Appeal from the Judgment and from an Order on Motion for a Hew Trial.—Practice. — On appeal from the judgment, as well as from an order-denying a new trial, the appeal from the judgment must be decided on the judgment roll alone.

Idem.—If the express and implied findings do not warrant the judgment, the appeal from the judgment is well taken, even though the findings are not supported by the evidence.

Crockett, J., delivered the opinion of the Court:

On the former hearing of this cause we held that the location of the plaintiff’s school land warrant, made on the 13th June, 1860, and the patent issued thereon, and also the defendant’s homestead certificate, issued in 1863, were all void, for the reason that the lands were reserved from entry by order of the Commissioner of the General Land Office, issued' in December, 1857, and the suspension was not removed until November 30, 1864. The lands were ordered by the Commissioner to be reserved from sale and entry, because they were included within a larger tract claimed by one Luco under a title derived from the Mexican Government, and whose claim for confirmation was then pending before the proper tribunals of the United States. The sus[342]pension was removed by the order of the Commissioner in November, 1864, on the ground that the Luco claim had been finally rejected by the Supreme Court of the United States, and there was, therefore, no longer any reason why the land should be reserved from entry and sale. In his order removing the suspension, he does not state the date of the final rejection of the Luco claim, but refers to the case as reported in 23 Howard’s Reports (page 515). On reference to this case we find the claim was finally rejected at the December Term, 1859, of the Supreme Court of the United States, prior to the location of the plaintiff’s school land warrant.

In our former decision of the case, at the April Term, 1869, we held, the suspension to have continued in force so as to reserve the land from entry until it was removed by the order of the Commissioner of the General Land Office in November, 1864, and that consequently the locations of both the plaintiff and defendant were void, because they were made whilst the land was reserved from sale and entry. But upon further consideration we are satisfied the suspension was removed by the final rejection of the Luco claim in 1859, and that by operation of law the land became liable to entry on the rejection of that claim without any formal removal of the suspension by the Commissioner of the General Land Office.

By Section 13 of the Act of Congress of March 3, 1851, establishing the Board of Land Commissioners for the adjudication of private land claims in this State, it is provided that all lands included in claims which shall be finally decided to be invalid by the proper tribunals of the United States, shall be deemed a part of the public domain of the United States. The final rejection of the claim operated, projprio vigore, to restore the land to the mass of the public domain, without any further action by the Land Department of the Government. If the President or the Commissioner of the General Land Office had afterwards attempted, in express terms, to continue the suspension on the ground that the land was embraced in the Luco claim, then finally rejected, the attempt would have been abortive, as wholly

Rush v. Casey

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