Berry v. Cammet

By the Court, Rhodes, J.: The sale of the lands of the State is committed to the executive department of the government; and the judicial department has no jurisdiction of controversies arising between applicants for the purchase of the lands, except in such matters as are expressly provided for by the statute. In order to give a Court jurisdiction of a controversy of that character, the facts conferring jurisdiction must be stated in the complaint. It is not enough that there are contesting claimants for the purchase of the same, lands, but the proceedings required by the statute before the Surveyor General and other officers concerned with the sale of the land must be had, and must be stated in the complaint.

[352]The defendant-demurred to the complaint on the ground that the Court has no jurisdiction of the subject matter of the action, and that the complaint does not state sufficient facts to constitute a cause of action. In argument he points out that the complaint does not allege that, in the judgment of the Surveyor General, a question of law is involved, nor that either party demanded a trial in the Courts of this State, as required by section seventeen of the Act of 1868. (Stats. 1867-8, p. 511.) It sufficiently appears that there is a contest between the parties in respect to the right to purchase the same tract of land, and it is averred that the Surveyor General, at the demand and request of the plaintiff, made and entered tlie requisite order, that the contest be referred to the proper Court for decision. This averment, when tested by a general demurrer, must be regarded as a sufficient averment that the plaintiff demanded a trial of the contest in the proper Court, as pi’ovided by section seventeen of that Act.

It is provided by section twelve of the same Act, that whenever application is made for the purchase of lieu lands, the Surveyor General shall apply to the proper Land Office of the United States to have such lands accepted in part satisfaction of the grant under which it is sought to be located, and that when such acceptance shall have been obtained, he shall give to the applicant a certificate which shall authorize the proper County Treasurer to receive payment for the land. It requires no argument to show that it was not intended by the Act to authorize the sale of lieu lands until the selection by the State had been approved by the Register of the proper Land Office, nor to show that it was not intended that a contest should be brousht on to a hearino- before the Courts, to determine which party had the better right to purchase the lands from the State, before the State had taken the first step towards the acquisition of the title to the lands. The complaint fails to state that the Surveyor Gen