Rogers v. Shannon
Synopsis
Application to Purchase a Portion op a Thirty-sixth Section—What it need not State.—Action arising out of a contest certified to the District Court, by the Surveyor-General of the State, involving the right of the parties respectively to purchase a portion of a thirty-sixth section, under the Act of 1868, as amended in 1870. There being no allegation in the complaint that at the time of defendants’ application the township and other lines had not been established, so as to clearly show that the land sought to be purchased was included in a thirty-sixth section—said application being assailed solely on the ground of its failure to state that there has not been for more than sixty days, and is not any occupation of the land adverse to that of the applicant, and that the township has been sectionized for three months and over: held, that for the particular reasons assigned in the complaint defendants’ application is not invalid.
Requisites op Application under Amended Act. — Under the amendatory Act of April 4th, 1870, (Statutes 1869-70, p. 875) an application to purchase a portion of a thirty-sixth section will be valid, if it appear that at the time it is made the township and other lines have been established, so as to clearly show that the land sought to be purchased is included in a thirty-sixth section; and if the applicant in his affidavit shall state that there is no legal claim to the land other than his own, and that the land is not occupied by any bona fide settler.
Idem.—The Surveyor-General may approve such location of land within a. thirty-sixty section without the acceptance of the Register of the U. S. Laud Office, and the Register of the State Land Office may issue a certificate of purchase for the land so located; but no patent shall be issued by the State until the location shall have been approved by the United States.
Pleading and Rule of Consteuction.—It is presumed that the pleader states his case as favorably for his side of the controversy as the facts will justify; and hence the rule that his pleading must be construed most strongly against him, and that its ambiguities must be resolved against him.
Pleading and Peactice. — The complaint, on its face, must show that the plaintiff has the better right, and the objection that it does not state facts sufficient to constitute a cause of action may be taken at any stage of the controversy.
Answeb—Pbaotice. ■—Allegations of affirmative matter in the answer, not supported by proof, will not entitle the defendant to relief, and will be disregarded by the Court.
Submission on Pleadings.—In an action to decide a contest concerning the rights of parties to purchase State lands, wherein the complaint is insufficient to authorize a judgment for plaintiff, and the answer sets up affirmative matter requiring proof, and the cause is submitted on the pleadings without the introduction of any evidence: held, that the cause stands as though it had been submitted on the complaint alone, which, though insufficient to entitle the plaintiff to relief, cannot of itself be made the basis of affirmative relief to the defendant.
1. This Court has decided that the omission from the affidavit required by statute to be filed by an applicant to purchase State land, of any fact required by the statute to be stated in such affidavit, is fatal to the applicant’s claim. (Hildebrand v. Stewart, 41 Cal. 387.)
2. No evidence being offered on either side at the trial, the case stands upon the pleadings; the allegations of the complaint being admitted, because not denied, and the allegations of the answer being deemed denied, and no proof offered to sustain [103]them. So the case really stands upon the complaint alone, a; if on demurrer thereto.
3. Neither the affidavit of Perkins or Robertson contains the statement that there was no occupation of said lands adverse tc any they might have, as required by sec. 52 of the Act of 1868 as amended in 1870.
4. No applicant, except the plaintiff, has complied with the statute. An inspection of the complaint (taken as true, because none of its allegations are denied) will show this statement to be correct.
Dairigerjield and Warren Olney, Attorneys for Respondents.
We desire to correct the statement made at page three of appellant’s brief, that the allegations of the answers are deemed denied, and that no proof was offered to sustain them.
The fact is, the case went off on the demurrers of plaintiff to the answers of the defendants, as not stating facts sufficient to constitute a defense. The demurrers to the complaint were overruled. The defendants afterwards filed their answers and the plaintiff demurred to them, thereby admitting that the facts pleaded were true, and thereupon judgment was given for the defendants.
2. Reviewing and construing the provisions of law governing the applications of Perkins and Robertson, counsel for respondents argued in substance as follows:
By an examination of the original Act of March 28th, 1868, (Statutes of 1868, p. 507) providing for the management and sale of the lands belonging to the State, (including swamp lands, the 500,000 acres granted for school purposes, etc.) it will be seen that it only provided for the sale of lands to which the State had a title, that is, as to the sixteenth and thirty-sixth sections, after they had been surveyed by the United States authorities, and the survey had been approved. Until such survey has been made and approved the title of the State does not vest. (Middleton v. Low, 30 Cal. 605.)
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