Finney v. Berger

By the Court, Rhodes, J.: This is an action to determine a contest arising in the Surveyor-General’s office, in respect to the right of the parties to purchase from the State the north half of the northwest quarter of section thirty-six, in township one north of range fifteen east, Mount Diablo range and meridian. The court found that the official plat of the survey of the township was filed in the Stockton Land Office March 21, 1871; that the defendant’s application to purchase was filed in the office of the Surveyor-General of the State July 20, 1870; and that the plaintiff’s application was filed March 24, 1871. The statute of this State does not contemplate a sale of the sixteenth and thirty-sixth sections until the title has vested in the State. The title to a particular section does not vest in the State before the plat of the survey of the township is approved by the United States Surveyor-General. (Middleton v. Low, 30 Cal. 604.) There is nothing in the case showing such approval prior to the time when the plat was filed in the local land office. The defendant’s application [250]to purchase having been filed before the State had acquired the title, was unauthorized and void. It is unnecessary to determine whether the lands were subject to sale before the plat was filed.

Cause remanded, with directions to enter judgment that the plaintiff is entitled to purchase the lands in controversy.