Rhodes, J., dissenting:
The purpose of this action is to compel the defendants to convey to the plaintiff the legal title to the premises, which they acquired by means of a patent issued to their grantor by the United States. The township plot, including the lands in controversy, was filed in the proper land office in May, 1866. The survey of the rancho “ Pastoría délas Borregas” was finally confirmed in June, 1865. The lands in controversy were within the exterior limits of the rancho, but were excluded therefrom by the final survey. The plaintiff settled upon the quarter-section of land, which includes the land in controversy, in 1859, made the requisite improvements, and has since continued to reside thereon with his family, but he made no improvements, and never resided on that portion of the quarter-section which is in controversy. The plaintiff in due time filed his declaratory statement, and thereafter made proof of his claim to the satisfaction of the register and receiver, and on the nineteenth of November, 1866, the duplicate receipt (or certificate of purchase) was issued to him.
The defendants claim under Swinford, who in 1863 purchased a portion of the rancho above-named, the exterior lines of which comprised the land in controversy. In the month of May, 1867, Swinford filed his application to purchase the land in controversy, under the provisions of the [398]act of Congress of July 23, 1866, “An Act to quiet lnncl titles in California.” The Commissioner of the G-eneral Land Office directed the register and receiver to reinvestigate the entry of the plaintiff, to take the testimony offered by the plaintiff and Swinford in support of their respective claims, and report the same, together with their decision thereon, to him. The testimony was taken, and those officers decided in favor of the plaintiff; but on appeal to the commissioner, and from him to the Secretary of the Interior, the decision of the register and receiver, so far as it related to the land in controversy, was reversed, and the land awarded to Swinford. It is admitted by the pleadings that the plaintiff possessed the requisite qualifications of a pre-emptor, and that he had performed all the acts, and taken all the proceedings requisite on his part to entitle him to pre-empt all the quarter-section, except the land in controversy; and there can be no doubt that such right also extended to the land in controversy, unless Swinford acquired a better right under the act of Congress of July 23, 1866.
The questions arising upon these facts are the same as those in Hosmer v. Wallace (47 Cal. 461), one of which is, whether the decision of the officers of the land department, in a contest respecting the right of pre-emption, is final and conclusive upon all the issues of fact determined by them, or, in other words, whether in an action instituted by a party to the contest before the land department, to compel the other party to convey the title acquired from the United States, the court can inquire into the facts upon which the claim of the respective parties depends; or whether, on the other hand, the court is limited to a review of the questions of law involved in the contest. The majority of the court, in that case, expressed the opinion that the court could only review the questions of law, but could not reinvestigate the facts involved in the contest before the land department. The same doctrine was virtually laid down in Burrill v. Haw (48 Cal. 222).
The decision in those cases denying the jurisdiction of the courts to reinvestigate the facts in this class of actions, cannot, in my judgment, be sustained upon the authority [399]of the cases in the Supreme Court of the United States. They are based upon the language of a portion of the opinion in Johnson v. Towsley (13 Wall. 72), but not on any of the earlier cases in that court. Since the decision in that case, the doctrine there laid down has been commented upon, more fully explained and applied in Warren v. Van Brunt (19 Wall. 562). In that case no questions of law were in dispute, but under the admitted rules of law applicable to a case of that character, the right of the respective parties depended upon questions of fact. The party who had received the patent there contended, as is contended on behalf of the party claiming under the patent here, that the decision of the officers of the land department in the matter of the contest in respect to the right of pre-emption, was conclusive upon the parties, as the court below had found that there was no fraud, unfairness, or misconduct, in the hearing or the production of testimony, on the part of the patentee or the several officers of the land department. But the court held that that position was untenable, and, after an examination of the facts of the case, affirmed the decree of the Supreme Court of Minnesota. The Chief Justice, in delivering the unanimous opinion of the court, said: “The issue of the patent upon the award of these officers [of the land department] was final and conclusive as between the United States and the several claimants. It passed the legal title to the patentee. The remedy of the defeated party, if any thereafter, was by a proceeding in the courts against the patentee or those claiming under him;” and also quoted this language from Johnson v. Towsley: “When those officers decide controverted questions of fact, in the absence of fraud or imposition, or mistake, their decisions will be final;” but that “it was the right of the proper courts to inquire after the title had passed from the government, and the question had become one of private right, whether, according to the established rules of equity and the acts of Congress concerning the public lands, the party holding that title should hold absolutely as his own, or as trustee for another.” The Chief Justice then adds: “ We are satisfied with this ruling, and this leads us to inquire, whether, [400]upon the facts, as found by the court, the officers of the government did err in awarding the patent to Van Brunt. The record does not disclose the facts found by the officers.” It is manifest that as there was no fraud, accident, or mistake against which a court of equity would afford relief, the court would have reversed the decree of the Supreme Court of Minnesota, if the courts have no jurisdiction to inquire into the facts upon which the claims of the respective parties to a contest before the officers of the land department are based. As the record did not disclose what facts were found by the officers of the land department, it is apparent that no questions of law could arise for decision until the court had found the facts upon which the parties relied.
These views as to the jurisdiction of the courts are sustained by the cases cited in Johnson v. Towsley, among which, are Lyttle v. Arkansas, 22 How. 192; Garland v. Wynn, 22 How. 8, and Lindsey v. Haws, 2 Black, 554. In the last-mentioned case the court, after reciting certain of the facts upon which the respective parties relied in support of their claims to the pre-emption, say: “It is quite clear that upon the facts above stated, wdthout more, the complainants would be entitled to the relief prayed for in their bill.”
There is a further ground upon which the jurisdiction contended for by the plaintiffmay be sustained. In the course of the opinion in Johnson v. Towsley, Mr. Justice Miller says: “So also the register and receiver, to whom the law primarily confides these duties, often hear the application of a party to enter land as a pre-emptor or otherwise, decide in favor of his right, receive his money and give him a certificate that he is entitled to a patent. Undoubtedly this constitutes a vested right, and it can only be divested according to law. In every such case, w'ken the land office sets aside this certificate and grants the land thus sold to another person, it is of the very essence of judicial authority to inquire whether this has been done in violation of law', and it has to give appropriate remedy.” Whether this proposition was involved in that case or not, its soundness, I think, cannot be questioned. The pay[401]ment of the money and. the receipt of the patent certificate gave the purchaser a standing in a court of equity, for they vested him with the entire beneficial estate in the land; and I see nothing in the legislation of Congress that points to the conclusion that the action of the land department, in destroying such estate, is beyond the reach of inquiry.
It is worthy of notice, that the officers of the land department are not required to state in detail either the facts or the propositions of law upon which their decisions are made. All their decisions, in which they failed to state the grounds upon which they were made, would be beyond the reach of inquiry, and final in an absolute sense, if Hosmer v. Wallace states the true rule. I cannot conceive that Congress intended to vest in the land officers such absolute power.
I am of opinion, that in an action of this character, the court has competent jurisdiction to inquire into the facts upon which the claims of the respective parties are based, whatever may have been the grounds of the decision of the officers of the land department.
' I am also of opinion that if, in this class of cases, the courts are limited in their investigations to questions of law arising before the officers of the land department, the judgment should be for the plaintiff. The complaint, as already stated, showed that the plaintiff possessed all the requisite qualifications of a pre-emptor; that he had performed all the acts required on his part in order to entitle him to a pre-emption (the matters constituting such qualifications, and the said acts being set out in detail), and that “he made proof of his said pre-emption claim and right to said quarter-section of land under the laws of the United States, to the satisfaction of the register and receiver.” These facts are not denied by the answer, nor does it state any facts inconsistent therewith. The facts on which Swinford relied in support of his claim, under the act of July 28, 1866, are not in any sense repugnant to those upon which the plaintiff relies. Nor is any fact found by the court which is inconsistent with the facts alleged in the complaint as the basis of the plaintiff’s claim. The plaintiff having [402]proved liis said claim and right—that is to say, the facts upon which his claim and right rested—to the satisfaction of the register and receiver, and it not appearing that the facts on which Swinford relied were inconsistent with the facts proven by the plaintiff, there is no ground for saying that any of the officers of the land department may have found for Swinford upon the issues of fact. The fact that the land department did not attempt to cancel the duplicate receipt, only so far as it related to the portion of the quarter-section in controversy, and left it in full force as to the residue—about nineteen-twentieths—of the quarter-section, necessarily leads to the conclusion that the officers of the land department did not decide against the plaintiff upon questions of fact—did not decide that the facts upon which his claim was based were not proven. I am fully satisfied, from the whole case, that the decision of those officers proceeded solely on the ground that, as a matter of law, the plaintiff’s claim did not come within the meaning of the proviso to the eighth section of the act of July 23, 1866.
This brings me to the consideration of that question.
The proviso to the eighth section of the act of Congress of July 23,1866—“An Act to quiet land titles in California’’ —is as follows: “Provided that nothing in this act shall be construed so as in any manner to interfere with the rights of bona fide pre-emption claimants.” It becomes necessary to determine who is a bona fide pre-emption claimant—or rather, as it appears that the plaintiff is a pre-emption claimant, whether there are any facts in the case which show that his claim is not a bona fide pre-emption claim. I would remark here, that I attribute no force to the circumstance that the court did not expressly find that the plaintiff was a bona fide pre-emption claimant, for the question whether he was such is to be determined upon the facts admitted by the pleadings, together with those found by the court. A bona fide pre-emption claimant, as I construe the proviso, is one who had a pre-emption claim, which, under the acts.of Congress then in force, granting rights of preemption, would be regarded as valid—a claim which would have entitled the claimant to purchase the lands, upon a [403]compliance with the law as to filing his declaratory statement, making proof of his claim, and paying the purchase-money. The claimant who possessed the requisite qualifications, and could make the requisite affidavit as to his settlement upon and improvement of the land, and the other matters required by the law granting the pre-emption right, and who made no default in presenting his claim, and making proof, or payment; and who immediately before the passage of the act of July 23, 1866, would have been regarded as a bona fide pre-emption claimant, does, as I construe the proviso, come fully within its meaning. There is nothing in the act tending to show that the pre-emption right mentioned in the proviso was subject to any condition, limitation, or restriction which was not imposed by the general pre-emption law. The only grounds upon which it is held in the prevailing opinion that the claim was not bona fide is, that the plaintiff entered upon the land when it was not subject to pre-emption, and therefore was a trespasser as against the United States; that after the land became subject to pre-emption, by the final survey of the rancho, which excluded therefrom the land in controversy, and by the return of the plat of the township to the register’s office, he made no further improvement on the land, and that Swinford, under whom the defendant claims title, was in the actual possession of the portion of the quarter-section in controversy under a purchase from the Mexican grantee. It will be noticed that more than a year intervened between the confirmation of the survey of the rancho and the passage of the act of Congress. It is absolutely unquestionable that, during that period, the plaintiff possessed a valid pre-emption claim.
I do not understand that there is anything in the letter, spirit or policy of the law which will exclude a person from its benefits on the ground that at some time before he or any other person could assert a pre-emption claim to the land, he was a trespasser upon the land. Ror do I understand that his claim was impaired by the fact that another person was in the possession of the land, unless such other person had the right of pre-emption or some other right [404]derived from the United States. I find no case in which it is held that a party who entered upon land and erected a dwelling-house thereon before it was subject to pre-emption, and from the time of his entry continued to reside thereon until after it became subject to pre-emption, is required to make further improvements upon the land after it becomes subject to pre-emption, in order to preserve his claim; but, on the contrary, both the courts and the land department have held that the settlement and the erection of a dwelling-house, before the land was open to pre-emption, together with the continued inhabitancy thereof, until it was open to pre-emption, and until the application was in fact made, was a sufficient compliance with the law in respect to the settlement, the erection of a dwelling-house, and the inhabitancy required by the acts of Congress; and so far as I am aware, the ruling on that question has been uniform. The facts in this case do not, in my opinion, impeach the bona fides of the plaintiff’s claim; and his claim being valid, the certificate of purchase was properly issued to him, and in my judgment he is now entitled to the relief sought by his complaint.
In my opinion the judgment should be reversed and the cause remanded with directions to enter judgment for the plaintiff in accordance with the prayer of the complaint.
Wallace, C. J., took no part in the decision.