Hinckley v. Fowler

By the Court,

Wallace, J.: The controversy in this case is a contest arising under the provisions of the twenty-seventh section of “An Act to provide for the sale of certain lands belonging to the State.” (Acts 1863, p. 591.)

It appears that in December, 1866, Fowler presented to the County Surveyor of Solano County an application for certain tide lands in that county, which were described as “the one half mile water front donated to the San Francisco and Marysville Railroad Company by an Act of the Legislature of the State of California, approved April 24th, 1858.” Upon receiving this application, the Surveyor noted the same in his book of applications thus: “L. C. Fowler, Solano County: Ho. 8. Township 3 north, Ranges 3 and 4 west, Sections 19 and 24; fractions in east half of 24; fractions in west half of 19; Mount Diablo meridian.” A copy of the description, as thus noted, was indorsed upon the affidavit of Fowler, pursuant to Sections 28 and 29, and filed, along with the affidavit itself, in the office of the Surveyor of the county. It is claimed,. however, by the appellant, Hinckley, that the paper thus filed in the Surveyor’s office was a certified copy of the affidavit of Fowler, and not the [61]original; but an examination of the evidence shows it to be substantially conflicting upon this point, and the finding of the Court below, that the original, and not the copy, was filed in the office of the Surveyor, will, therefore, not be disturbed here. The land described in the application, and of which note was thus made in the application book of the County Surveyor, embraced some sixty-five acres, and it was the duty of that officer within thirty days thereafter to make the survey and transmit a duplicate of it, and of the plat and field notes, and a copy of the application and affidavits in its support, to the Surveyor General for approval. In March, 1867, Fowler discovered that the County Surveyor, instead of surveying the land embraced in his application, had surveyed only a long narrow strip of it, which was of less than six acres in superficial area, and had returned that survey to the Surveyor General, who had approved the survey as thus made. Upon discovering this fact, Fowler complained to the County Surveyor, and called his attention to the omission, but that officer declined to correct it, or to take any further steps in relation to it, on the ground that his authority over the subject was at an end. He, however, on the 18th day of March, 1867, advised Fowler to make a new application for the land omitted from the survey, and this new application was accordingly made upon the first day of April following, and a new survey was made thereunder and transmitted to the Surveyor General, including the narrow strip shown by the first survey, and some fifty-eight acres besides. On the 13th day of March, 1867, however, the appellant, Hinckley, made an application to the same County Surveyor, in the usual form, for certain tide lands, including the lands which had been omitted from the Fowler survey on the first application; this application of Hinckley was entertained by the Surveyor, who, on the 15th day of March, completed the survey for Hinckley thereunder, and on the next day transmitted a duplicate of it, with plat, field notes,