Foscalina v. Doyle
Before: Crockett
Synopsis
Act op Congress of 1866 Concerning Lands in California.—Under the Act of Congress of July 23d, 1866, entitled “An Act to quiet land titles in California,” the holders of State selections of unsurveyed public lands, which bad been made in good faith, under the laws of this State, and surveyed, marked off, and designated in the field before said date, acquired the rights of pre-emptioners on unsurveyed lands, unless, at the time of the passage of said Act, some pre-emption, homestead, or other right, under the laws of the United States had attached to the land, or unless it was within some of the reservations specified in the Act.
Idem.-—Said Act of Congress had also the effect to legalize the possession of locators under the State laws upon unsurveyed public lands, and to enable them to maintain ejectment and other actions in respect to the possession, during the interval which elapsed prior to the time when they were afforded'an opportunity under the Act to present their claims for adjudication by the proper officers of the United States.
Idem.—Under said Act of Congress, a certificate o-f purchase, issued by the State of California, was, prima facie, evidence that the land had been purchased from the State in good faith.
Puechases op Land pbom the State peiob to 1866.—If a person prior to the passage of the Act of Congress of July 23d, 1866, had purchased from the State in good faith, unsurveyed public land, and in proper time after the passage of the Act, had made application to the proper officers of the United States to prove up his claim, and had entered into and remained in possession, the land was not subject to be pre-empted under the laws of the United States, and the person who, after the passage of the Act, entered on such land as a pre-emptor, became a trespasser, and the locator under the State could recover the land by virtue of his prior possession.
Supplemental Answeb in Ejectment.—If the defendant in ejectment relies on the fact that the plaintiff’s right to the possession has expired during the pendency of the action, he must plead it in a supplemental answer.
Implied Findings.—In cases tried before the Code of Civil Procedure took effect, if there is an issue on which the findings are silent, law implies that the Court found this issue so as to support the judgment.
By the Court, Crockett, J.: It is clearly established by the evidence that the defendants, when they entered upon the demanded premises, intruded upon the actual possession of the plaintiff, which he held as a tenant under Hough & Harlan. The defendants seek to justify their entry on the ground that the land was a part of the public domain of the United States, which was then subject to pre-emption; and that, being qualified pre-emptioners, they entered in good faith for the purpose of taking up and perfecting pre-emption claims. If the land was not subject to pre-emption, this defense must fail, and the defendants were mere naked intruders upon the actual possession of the plaintiff.
It appears from the findings that, in the year 1864, and before the land had been surveyed by the authority of the United States, the proper authorities of this State had issued to the assignors of the plaintiff’s lessors, certificates of • purchase for the land in controversy, under the statutes of California, in respect to the location and sale of lands dona[440]ted by the United States to this State, for internal improvements and other purposes; that prior to the years 1868 and 1869, respectively, the lessors of the plaintiff had partially inclosed the premises in controversy, and had planted'and cultivated the same in grain; that in the years 1868 and 1869, respectively, they rented said lands to the plaintiff, who cultivated the same in grain; and whilst he was so in the actual possession, the defendants, in October and November, 1870, entered and ousted the plaintiff, and have ever since been in possession; that in or about the month of March, 1869, the township including this land was first surveyed and sectionized under the authority of the United States, and in June, 1871, the approved plat of the survey was returned to the Land Office of the proper district; that in the following month the lessors of the plaintiff made application to the Register and Receiver to be allowed to present and prove up their purchases and claims, and to have the land certified over to this State by the Commissioner of the General Land Office. So far as appears, these applications were still pending at the time of the trial. Upon these facts, the plaintiff contends that the land was not subject to pre-emption, and that the case comes fully within the principles decided in Toland v. Mandell, 38 Cal. 30; Hodapp v. Sharp, 40 Cal. 69; and Flint v. Bell, decided at the October term, 1870, but not reported. "We agree with the plaintiff that the propositions settled in those cases are decisive of the present actions, and establish that the land in controversy was not subject to pre-emption when the defendants entered, or at any time since.
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