Pollard v. Putnam

California Supreme Court Jul 1, 1880 No. No. 6,641Published

Before: Department, Morrison

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Holding. The premature approval of a land purchase application by the Surveyor-General in violation of statutory waiting periods does not render the applicant's prior application void or forfeit their priority rights against subsequent applicants.

Issues

Does a Surveyor-General's premature approval of a land purchase application render the application void?
Does the malfeasance or misfeasance of state officers in processing a land application deprive the applicant of their priority rights against subsequent applicants?

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“Our conclusion is, that the rights of the defendant are prior and superior to those of the plaintiff, and that therefore he is entitled to judgment.”

Synopsis

State Lands—Application to Purchase — Contest. — An application to purchase. State lands, made in accordance with law, gives the applicant, as against the State—so long as the statute remains in íorco—a privilege to purchase the land applied for; and as against the officers of the State, and subsequent applicants, it gives him a right to purchase, which can only be lost by his own failure to pursue the subsequent steps prescribed by the statute, and of which he cannot be deprived by the malfeasance or misfeasance of any of the officers. Accordingly, in an action upon a reference by the Surveyor-General—under § 3414 of the Political Code—of a contest between applicants to purchase State lands, where it appeared that the application of the defendant was regular, and i>rior to that of the plaintiff, but that the Surveyor-General had approved the application, and issued the certificate of purchase before the expiration of the sixty days required by § 3498 of the Political Code: Held—admitting that the approval and certificate were void—that the validity of defendant’s application was not affected thereby.

It>.—Id.—Id.—Constitutional Law—Constbuction—Repeal of Statute.— The original judgment remanded the cause, with instructions to the lower Court to enter judgment for the defendant. Upon the application for rehearing, (cited infra) the judgment was modified so as to direct a new trial.

Department No. 1, Morrison, C. J.: Section 3414 of the Political Code provides, that when a contest arises before the Surveyor-General, concerning a certificate of purchase, or other evidence of title, involving a question of law, he must make an order referring such contest to the District Court of the county in which the land is situated; and § 3415 of the same Code provides that after such order is made either party may bring an action in the District Court of the county in which the land in question is situated, to determine such conflict. In this case such a contest arose, and an action having been brought by plaintiff in the late District Court of the Seventeenth Judicial District, judgment was rendered in his favor on the 24th day of April, 1878. This appeal is taken from that judgment.

There is no conflict in the evidence, and the facts disclosed by the transcript are as follows: On the 30th of November, 1875, defendant made application in due form of law, for the purchase of the land in controversy; on the 4th day of December, 1875, the Surveyor-General approved said application, and on the 18th of December, of the same year, a certificate of purchase was issued in favor of Putnam, the defendant. On July 30th, 1877, the plaintiff filed with the Surveyor-General of the State his application to purchase the same land, his application being in due form of law. It further appears from the transcript, that plaintiff entered upon the tract of land in controversy, and took possession thereof on the 19th day of June, 1869, under a deed from one J. P. Widney, and that there was not then, nor has there been since that time, any adverse occupation thereof.

It will be observed that the application of defendant was made on the 30th day of November, approved on the 4th of December, and the certificate of purchase issued on the 18th of December. This was in violation of § 3498 of the Political Code, which reads as follows: “ All applications filed in the Sur[633]veyor-General’s office must be retained sixty days before approval.”

"In Cunningham v. Crowley, 51 Cal. 128, the Court say: “ The purpose of the action is not to annul the certificate of location or purchase, or other evidence of title; but if both of the parties are applicants for the purchase of the lands, the purpose is to procure a determination of the question as to which applicant has the better right to purchase them; * * * and the annulment of the certificate of purchase or other evidence of title, is merely a consequence of the determination that the party holding it was not entitled as against the other party to effect a purchase of the lands.” We are not informed of the grounds upon which the learned Judge of the District Court based his decision in favor of the plaintiff, but the only point made in the brief of plaintiff and respondent is, the invalidity of the approval and certificate of purchase, the approval having been made and the certificate having been issued in violation of § 3498 of the Political Code.

Pollard v. Putnam

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