Mastick v. Cave

California Supreme Court Jul 1, 1877 No. No. 4637Published

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Holding. The Court held that the Act of Congress of July 23, 1866, confirmed the State's title to the forty acres of land in controversy, notwithstanding that the original selection was for a larger amount of unsurveyed land, because the selection was valid to the extent of the remaining land and the State's title became perfect before the defendant's settlement.

Issues

Whether the Act of Congress of July 23, 1866, cured the defect in the State's selection of unsurveyed land.
Whether a state land application for more than 160 acres remains valid for a smaller portion (40 acres) when other rights intervene.
Whether the defendant's settlement on the land after the passage of the Act of 1866 precludes him from acquiring rights against the State.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“This act operates to cure the defect that would otherwise have existed in the plaintiff’s title.”

“We are of the opinion that the act confirmed to the State the forty acres in controversy, and that the lands were properly listed over to the State.”

Synopsis

Act of Congress Confirming Land Titles in California.—If a selection of more than one hundred and sixty acres of public land is made, as lieu land, under the statute of this State, passed April 22d, 1861, and the land thus selected is reduced to forty acres by a grant made to a railroad company, and by allotments to pre-emptioners prior to the Confirmatory Act of Congress, passed July 23d, 1866, the fact of such reduction does not prevent the Confirmatory Act from taking effect on the land.

Idem.—If public land in this State was selected as lieu land, in accordance with the statutes of this State in force at the time of the selection, and prior to the passage of the Act of Congress passed in July, 1866, to quiet land titles in this State, and the Register of the Land Office was notified of the selection, the title of the State to the same was confirmed by said Act of Congress, although made of unsurveyed land, and void by reason thereof.

The laws of California authorized the location on unsurveyed lands (sec. 5, Act of 1861, p. 219); but the laws of the United States only authorized lieu lands to be taken from among the lands surveyed by the United States.

This defect is cured by the Act of Congress approved July 23d, 1866, entitled “An Act to quiet land titles in California.”'

The first section of that act provides: “That in all cases where the State of California has heretofore made selections of any portion of the public domain, in part satisfaction of any grant made to said State by any Act of Congress, and has disposed of the same to purchasers in good faith under her laws, the lands so selected shall be and hereby are confirmed to said State.”

This act operates to cure the defect that would otherwise have existed in the plaintiff’s title. But for this confirmation the location would have been void, because made of unsurveyed lands, and it was to cure just such defects that the Act of 1866 was passed.

The defendant’s settlement was not made until more than five months after the Act of 1866 was passed, and he therefore is not protected by its provisions, and the proviso, in terms, ap[70]plies only to those whose rights attached prior to the passage of the act.

In short, the right of the State to convey the land to the plaintiff had become perfect before the defendant settled on the land, and he could therefore acquire no right as against the State whatever.

The point is made that by the act of the Legislature of California, approved April 22d, 1861, application could not be made for less than one hundred and sixty acres, and that as but forty acres were listed to the State, the application was invalid.

We deem it a sufficient answer to this to call attention to the fact found, that the application was for more than one hundred and sixty acres, but as other rights intervened before the listing to the State to the greater portion of that applied for, and only the forty acres in question was subject to such location, that alone could be conveyed to him by the State, and the application would be valid to that extent.

Moore, Laine, Delmas & Leib, for the Respondent.

The selection, being for unsurveved land, was void. ( Grogan v. Knight, 27 Cal. 515.) But it is insisted that by virtue of the Act of Congress of July 23rd, 1866, the title of the State is confirmed. But the State law in force in 1861 did not permit the selection of less than one hundred and sixty acres. (Sec. 4, Stats. 1861, p. 219.) The land selected was reduced to forty acres, and the Act of Congress did not confirm the title to the forty.

Mastick v. Cave

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