Rosecrans v. Douglass
Synopsis
Ltr.tr Land — Thirty-Sixth Section. — A thirty-sixth section of public land is not lost to the State, so that lieu land can be taken therefor, from the fact that it is included within the limits of a confirmed Mexican grant, until there has been a final survey of the grant.
Iustino Land over to a State. — The listing over of land to the State by the Commissioner of the General Land Office as lieu land, taken by the State in place of a thirty-sixth section included within the boundaries of a confirmed Mexican grant, is void, and confers no title on the State, if such grant has not been finally surveyed when the land is listed over.
Idem.—Such selection of lieu land by the State is void as between the State and the Federal Government, and the State has no title which it can convey by patent.
Attack toon a Patent eob Land.—One who is a qualified pre-emptor, and is living on public land, and has filed his application to purchase, and has offered to prove up his claim, and has tendered the purchase-money, has such a privity with the title of the United States as will enable him, in an action at law, to attack a patent for the same which is void as having been issued without authority of law, but is not void on its face.
A patent may be attacked collaterally when the State has no title in the land patented. (Patterson v. Winn, 11 Wheat. 352; Stoddard v. Chambers, 2 How. 284; Durfee v. Plaisted, 38 Cal. 80.)
No lieu land can be located in place of land included within [215]the limits of a Mexican grant until the survey of the grant becomes final.
A pre-emptor who has made his application is in such privity with the source of title as to enable him to attack a patent which is void. (Frisbie v. Whiting, 9 Wall. 187.)
John D. Bicknell and Haight & Taylor, for the Respondent.
The land having been listed to the State, the fee-simple passed. (Act of Congress of August 3rd, 1854; Lester’s Land Laws, vol. 1, p. 236; Bugnall v. Broderick, 13 Peters, 436.)
The purchaser from the State is not bound to look back of the listment.
The patent cannot be impeached collaterally. (Hodopp v. Sharp, 40 Cal. 69.)
The defendant is not in such privity with the title as to enable him to impeach the patent. (Rhodes v. Craig, 21 Cal. 422; People v. Stratton, 25 Cal. 243.)
By the Court : The plaintiff claims under a patent issued to him by the State for the land in controversy, which in the year 1868 was selected by the State, in lieu of a thirty-sixth section alleged to have been lost to the State by reason of its having been included in the final survey of the Rancho Santa Margarita y Las Flores, a confirmed Mexican grant. But the Court finds that at the date of the State selection that rancho had not been, and has not yet been finally surveyed, and consequently that the said thirty-sixth section was not then, and has not yet been, lost to the State. It is clear that as between the State and the United States, the patent is void, notwithstanding the land was listed over to the State by the Commissioner of the General Land Office before the patent issued. The Act of Congress of August 3rd, 1854, (1 Lester’s Land Laws, p. 136) provides that when lands are granted to the several States by any law of Congress, and when said law does not convey the fee of the lands, or require patents to be issued therefor, the lands granted shall be listed to the State by the Commissioner of the General Land [216]
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