Hildebrand v. Stewart

California Supreme Court Jul 1, 1871 No. No. 2,322Published

Before: Sprague

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Holding. The court held that the defendant's applications for the purchase of state school lands were invalid due to failure to provide required statutory notice to occupants and failure to comply with mandatory affidavit requirements. Consequently, the plaintiff's application, which strictly conformed to the Act of March 28th, 1868, was deemed valid and entitled him to purchase the contested land.

Issues

Whether the defendant's applications under the Act of April 27th, 1863, were valid despite the absence of required notice to occupants of improvements on the land.
Whether the defendant's application under the Act of March 28th, 1868, was valid despite failing to include required statutory information in the supporting affidavit.
Whether the plaintiff's application for the purchase of the land was in conformity with the law.

Disposition. reversed

Quotations verified verbatim against the opinion

“The affidavit of defendant of June 9th, 1868, for the northwest quarter, fails to state that he desired to purchase the land under the Act of March 28th, 1868, and fails to describe the land by legal subdivision, or otherwise.”

Synopsis

Location op Sixteenth or Thiett-sixth Section.—A location and entry of any portion of a sixteenth or thirty-sixth section, made under the Act of April 27th, 1863, is invalid, and fails to vest any title in the locator, provided there was a settlement, by occupation or improvement, on any part of the section, owned by another, who had acquired no preemption right to a specific part of the section, and the locating agent did not give the occupant or claimant of such improvement the notice of sixty days required by the fifth section of said Act.

Idem.—A house and corral are improvements of the character contemplated by the fifth section of the Act of April 27th, 1863, providing for the sale of certain lands belonging to the State.

Idem.—The location and entry of any portion of a sixteenth or thirty-sixth section is invalid, if the affidavit of the locator, on his application to locate and purchase, does not state that he is desirous to purchase the land, and does not give a description thereof by legal subdivisions. A statement, signed by the applicant and not sworn to, containing the same matters required in the affidavit, and accompanying the affidavit, does not render the entry valid.

Bioht to Purchase Public Lands.—When the law, under which public lands are sold, requires certain acts to be performed as a prerequisite to the 0 right to purchase, the Courts cannot dispense with the performance of those acts, by legalizing an entry made without complying with them.

By the Court, Sprague, J.: This was a contest arising before the Surveyor General, between two conflicting applicants for the location and purchase of the west half of section sixteen of the school lands of this State, situate in Colusa County, which was, under the statute of the State, transferred for adjudication to the Tenth District Court, where the questions were litigated between the applicants—Hildebrand as plaintiff, and Stewart as defendant—and judgment was rendered in favor of plaintiff for the southeast quarter of the southwest quarter of said section, and in favor of defendant for the residue of the half section in controversy, from which judgment both parties appeal.

From the findings of the Court contained in the record, it appears that defendant endeavored, by two separate applica[390]tions, to locate the southwest quarter of said section, under the Act of April 27th, 1863, entitled “An Act to provide for the sale of certain lands belonging to the State.” (Statutes of 1863, p. 591.) The first application by defendant was made November 20th, 1867, for the location of the southwest quarter and northwest quarter, and the northeast quarter of the southwest quarter, of said section sixteen, which application was accepted by the State Locating Agent on the 17th of December, 1867, approved by the State Surveyor General April 8th, 1868, and a certificate of purchase issued by the State Register to defendant therefor July 20th, 1868.

The second application of defendant was made May 6th, 1868, for the southeast quarter of the southwest quarter of said section, which application was approved by the Surveyor General on the 5th day of January, 1869.

That defendant, on the 9th day of June, 1863, made application to- locate and purchase the northwest quarter of the same section, under the Act of March 28th, 1868, entitled “An Act to provide for the management and sale of the lands belonging to the State” (Statutes of 1867-8, p. 507), which application was accepted by the Surveyor General on the 12th day of June, 1868; and thereafter, in December, 1868, a certificate of purchase was duly issued therefor, to defendant, by the State Register. These several locations of defendant embraced the entire west half of said section sixteen.

That on the 6th day of February, 1869, plaintiff made application to locate and purchase the same half section, under said Act of March 28th, 1868, which application was duly accepted by the Surveyor General of the State, upon condition that applicant-comply with all the provisions of said Act of March 28th, 1868.

Hildebrand v. Stewart

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