Copp v. Harrington

By the Court, Rhodes, J.: The lands in controversy are subdivisions of section 10, township 12 north, range 1 west, and both parties seek to purchase them in lieu of subdivisions of certain sixteenth sections. The defendant’s application was filed in the Surveyor’s-General’s office in December, 1869. The plaintiff’s application was filed on the thirtieth of April, 1870. The defendant’s application was defective, for the reason, among others, that it failed to state that there .were “ no improvements of any kind on said land, other than those of the applicant,” as required by the fifty-third section of the Act of 1868 (Stats. 1867-8, p. 522.) It having been held in Hildebrand v. Stewart, 41 Cal. 387, that the application in that case was fatally defective, the Act of March 24th, 1870, “to legalize certain applications for the purchase of lands belonging to this State,” was passed (see Stats. 1869-70, p. 352), to the effect that all applications theretofore made under the provisions of the Act of March 28th, 1868, for the purchase of lands, etc., “where there are not two or more applicants for the purchase of the same land, or conflicts between claimants, shall be held good and valid, ” though the affidavits may be defective “ either in form or substance.”

At the passage of this act, there were neither two applicants for the purchase of these lands, nor were there any conflicts between the claimants, within the meaning of the act. The direct effect of the act was to make the defendant’s application “good and valid.” It was approved by the Surveyor-General, on the seventh day of April, 1870, and a certificate of purchase ivas issued to- the defendant on the fourteenth day of the same month.

The plaintiff's application, as already stated, was filed April 30th, 1870, after the approval of the defendant’s application, and the issuing of liis certificate of purchase. It was made under the provisions of section 53 of the Act of 1868, as amended April 4th, 1870. (Stats. 1869-70, p. 876.) That section provides that the applicant shall “make an affidavit before any officer authorized to administer oaths [241]that he is a citizen of the United States (or if a foreigner, then that he has filed his intention of becoming a citizen), a resident of the shall be forwarded to the Surveyor-General.” Some portion of the section, it is probable, was omitted by mistake in enrolling the bill, for the clause above quoted, is nonsense. It is unnecessary, in the view we take of this case, to determine whether the plaintiff’s affidavit is "valid, or even whether under that section, as amended, an application could have been made for the purchase of any other lands than the sixteenth or thirty-sixth sections. If, however, there are pending applications which were made under the latter clause of the fifty-third section as amended, a further curative act might not be inappropriate.