Wright v. Laugenour

McKinstry, J.: In an action to determine a contest arising in the Surveyor-General’s or Register’s office, each party must allege the facts which, in his view, would authorize the issue of a certificate to him. (Christman v. Brainard, 51 Cal. 534.)

The plaintiff neither alleged in his complaint, nor proved at the trial, that he was a resident of the State of California, or that he was of lawful age, or that he had not entered any land in part satisfaction of the grant, in lieu of sixteenth or thirty sixth sections, which, together with that which he now seeks to purchase, exceeded three hundred and twenty acres. He was, therefore, not entitled to judgment in the Court below.

The second section of the Act of April 27th, 1863, contains the following proviso: “ Nothing in this act shall be construed to affect the sale of lands, by the location of school land warrants, which lands shall be located and paid for in the manner now provided by law.”

Defendant’s application is not invalid for want of the affidavits required by the act referred to, since it comes within the proviso above quoted.

It is urged by the plaintiff and appellant that the application of respondent was invalid under the Act of 1858, (Stat. 1858, p. 248) inasmuch as certain affidavits were made before a person signing the jurat as “ Deputy Locating Agent.” The administration of an oath is a function ministerial in its nature, and the State Locating Agent, as a ministerial officer, had power to appoint deputies. (Jobson v. Fennell, 35 Cal. 711.)

The plaintiff has no right in or to the land unless it is property of the State ; and as .the contest is, whether plaintiff, or defendant, or either, is entitled to purchase from the State, the plaintiff is estopped from denying the authority of the Deputy Locating Agent. It is not necessary to decide that the State may not dispute it.

Judgment and order affirmed.

Ross, J., and McKee, J., concurred.