Sherman v. Buick

By the Court, Rhodes, J.: This action was brought for the recovery of the possession of the southwest quarter of the southeast quarter of section thirty-six, township five south, range one east, Mount Diablo meridian.

The plaintiff claims title under a patent issued to him by the United States on the 15th day of May, 1869.

The defendant claims title under a patent issued to him by this State on the 6th day of January, 1869.

The plaintiff' offered to prove that the land was not surveyed by the United States until about August 11th, 1866, when the official township plat was filed in the Land Office at San Francisco; that he settled on the land described in his patent—the north half and the southwest quarter of the southeast quarter of said section thirty-six—as early as the 20th day of December, 1862, and has ever since resided [666]thereon; that he filed his preemption claim on said land ¡November 6th, 1866, and thereafter made proof and payment therefor, and received a duplicate preemption certificate upon which his patent issued. The Court excluded the evidence.

One of the questions arising upon this ruling of the Court, considered in connection with the evidence which had been admitted, is whether the title to these lands was in the United States at the time when the patent was issued to the plaintiffs or whether it had before that time vested in this State. That is the most important question in the case, and as there are other controversies in this State involving the same question, it is important that it be settled without any unnecessary delay. And if our conclusion be wrong the Supreme Court of the United States may readily correct it.

The sixth section of the Act of Congress of March 3d, 1853 (10 U. S. Stats., 246), provides that “ all the public lands in the State of California, whether surveyed or unsurveyed, with the exception of sections sixteen and thirty-six, which shall be and hereby are granted to the State for the purposes of public schools in each township, * * * shall be subject to the preemption laws of the 4th of September, 1841,” etc. It is provided by section seven of that Act “ that where any settlement, by the erection of a dwelling house or the cultivation of any portion of the laud, shall be made upon the sixteenth or thirty-sixth sections before the same shall be surveyed * * * other land shall be selected by the proper authorities of the State in lieu thereof,” etc. The third proviso to the sixth section is as follows: “Provided, that nothing in this Act shall be construed to authorize any settlement to be made on any public lands not surveyed, unless the same be made within one year from the passage of this Act; nor shall any right of such settler be recognized by virtue of any settlement or improvement made of such unsurveyed lauds subsequent to that date.”